Page:Sony Computer Entertainment, Inc. v. Connectix Corporation.pdf/13

 expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.”). This factor favors Connectix.

The four statutory fair use factors must be “weighed together, in light of the purposes of copyright.” Acuff-Rose, 510 U.S. at 578, 114 S.Ct. 1164. Here, three of the factors favor Connectix; one favors Sony, and it is of little weight. Of course, the statutory factors are not exclusive, Harper & Row, 471 U.S. at 560, 105 S.Ct. 2218, but we are unaware of other factors not already considered that would affect our analysis. Accordingly, we conclude that Connectix’s intermediate copying of the Sony BIOS during the course of its reverse engineering of that produce was a fair use under 17 U.S.C. § 107, as a matter of law. With respect to its claim of copyright infringement, Sony has not established either a likelihood of success on the merits or that the balance of hardships tips in its favor. See ''Cadence Design Sys., Inc. v. Avant! Corp., 125 F.3d 824, 826 (9th Cir.1997), cert. denied'', 523 U.S. 1118, 118 S.Ct. 1795, 140 L.Ed.2d 936 (1998). Accordingly, we need not address defenses asserted by Connectix under 17 U.S.C. § 117(a)(1) and our doctrine of copyright misuse. We reverse the district court’s grant of a preliminary injunction on the ground of copyright infringement.
 * B.Tarnishment

The district court found that Connectix’s sale of the Virtual Game Station tarnished Sony’s “PlayStation” mark under 15 U.S.C. § 1125(c)(1). The district court based its preliminary injunction, however, exclusively on Sony’s copyright claim, and did not cite its tarnishment finding as a ground for the injunction. Although we can “affirm the district court on any ground supported by the record,” Charley’s Taxi Radio Dispatch Corp. v. SIDA of Haw., Inc., 810 F.2d 869, 874 (9th Cir.1987), we decline to affirm on this alternative ground. Sony has not shown a likelihood of success on each element of the tarnishment claim.

To prevail on its tarnishment claim, Sony must show that (1) the PlayStation “mark is famous,” (2) Connectix is “making a commercial use of the mark;” (3) Connectix’s “use began after the mark became famous;” and (4) Connectix’s “use of the mark dilutes the quality of the mark by diminishing the capacity of the mark to identify and distinguish goods and services.” Films of Distinction, Inc. v. Allegro Film Prods., Inc., 12 F.Supp.2d 1068, 1078 (C.D.Cal.1998); 15 U.S.C. §§ 1125(c)(1), 1127 (definition of “dilution”). Connectix does not dispute the first and third of these elements. We address only the fourth element.

Because Sony proceeds under a tarnishment theory of dilution, it must show under this fourth element that its PlayStation mark will “suffer negative associations” through Connectix’s use. Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d