Sony vs Connectix | Code Like It's 198x

Connectix’s engineers needed to know how a PlayStation started up, and Sony would not tell them. So, in the words of a federal judge, the company’s chief technical officer “purchased a Sony PlayStation, broke it apart, and took out the ROM chip containing the BIOS”. The program they built from what they learned, the Virtual Game Station, let a Macintosh play PlayStation discs. Sony sued, and won the first round: in April 1999 a court ordered the program off the shelves. Ten months later the Court of Appeals for the Ninth Circuit threw that order out, in a ruling that copying a console’s firmware in order to understand it was fair use. Sony then did what the courts would not, and bought the program.

Fast facts

Case: Sony Computer Entertainment, Inc. v. Connectix Corp., US District Court for the Northern District of California, Judge Legge; on appeal, the Ninth Circuit (Judges Choy, Canby and Silverman).
Filed: 27 January 1999.
Preliminary injunction against Connectix: 20 April 1999 (48 F. Supp. 2d 1212).
Injunction dissolved on appeal: 10 February 2000 (203 F.3d 596).
Supreme Court: declined to hear Sony’s appeal on 2 October 2000 (531 U.S. 871).
Ended: Sony bought the Virtual Game Station in March 2001; Connectix stopped selling it at the end of June.

The Virtual Game Station

Connectix already knew about imitating other machines. Official US PlayStation Magazine noted that it made “emulators for the Mac that allow users to run Windows and DOS applications and games”. It began work on a PlayStation emulator around 1 July 1998, and in September asked Sony for “technical assistance”. Sony declined.

The Ninth Circuit’s opinion describes how the work was done. An engineer, Aaron Giles, had first disassembled a copy of the BIOS downloaded from the internet, to test a disassembler he had written; it turned out to be a Japanese version, and the team dropped it. They took the BIOS from the console they had bought instead. While they wrote the software that imitated the PlayStation’s hardware, they ran Sony’s BIOS on it and watched, with a debugger, the signals passing between the two. When something went wrong they disassembled parts of the BIOS to find out why. Then they wrote a BIOS of their own. The finished program contained none of Sony’s code.

Connectix announced the Virtual Game Station at Macworld Expo on 5 January 1999 and sold it for $50. It ran only on Apple’s G3 Macintoshes, and Official US PlayStation Magazine, Sony’s licensed magazine, called it “a no-frills emulator”: no window mode, no colour adjustment, and not every game worked. Connectix’s president, Roy McDonald, told the magazine that Sony “would have no basis for any legal action since we haven’t used any of their software copyrights in the creation of the Virtual Game Station”. The same issue’s editorial asked who would want to play PlayStation games on a computer at all.

Sony wins the first round

Sony sued on 27 January 1999. Official US PlayStation Magazine listed the claims: two of copyright infringement, circumvention of technical protection measures, contributory copyright infringement, “reverse palming off”, trademark dilution and interference with contract. Its first request for a temporary restraining order was refused. McDonald told Edge: “Reverse engineering is not illegal.” The court granted a second request on 11 March, and after expedited evidence-gathering it heard Sony’s motion for a preliminary injunction on 9 April.

Judge Legge granted it on 20 April 1999. He found that Connectix had copied the whole BIOS, twice over, and that its engineers had used it every day while building the hardware emulation. Their work went beyond study, he wrote: “They actually used that code in the development of defendant’s product.” He also accepted Sony’s argument that the emulator tarnished the PlayStation name, because players blamed the games when they ran badly. One online reviewer had written that FIFA ’98 “plays like a pig, really slow and jerky”. Connectix was barred from selling the Virtual Game Station for the Mac or for Windows, barred from using Sony’s BIOS to develop the Windows version, and ordered to hand every copy of the BIOS to the court.

Edge reported it as “SONY STRIKES BACK AT CONNECTIX”, with the standfirst “Virtual Game Station loses the latest round of ongoing emulator wars”. Connectix said it would not recall copies already in the shops, and would appeal. “This is just the first stage of a lengthy process,” McDonald said. “We are confident we will be able to resume shipments once this matter has received further review.”

The appeal

The Ninth Circuit heard the appeal on 14 September 1999. The Institute of Electrical and Electronics Engineers’ US arm, two computer-industry associations and a group of law professors filed briefs as friends of the court; so did Nintendo of America, Sega of America and 3dfx Interactive. Judge Canby gave the court’s decision on 10 February 2000:

The intermediate copies made and used by Connectix during the course of its reverse engineering of the Sony BIOS were protected fair use, necessary to permit Connectix to make its non-infringing Virtual Game Station function with PlayStation games.

The court built on its own 1992 decision in Sega’s case against Accolade, which had allowed disassembly where it was the only way to reach the functional parts of a program. It rejected the lower court’s line between studying code and using it: Accolade, too, had loaded and experimented with Sega’s code. It also rejected Sony’s argument that Connectix had made more copies than it needed. Most of those copies, the court pointed out, were made each time an engineer switched a computer on and the BIOS was loaded into memory; had they left their machines running, there would have been far fewer. Copyright, the court said, did not turn on that kind of detail: “If Sony wishes to obtain a lawful monopoly on the functional concepts in its software, it must satisfy the more stringent standards of the patent laws.”

On the four tests of fair use, the court found that:

the BIOS deserved a lower degree of protection than ordinary literary works, because its functional parts could not be examined without copying it;
copying the whole BIOS weighed against Connectix, but counted for very little when none of it ended up in the finished product;
the Virtual Game Station was “modestly transformative”: entirely new code that let PlayStation games be played where there was a computer but no console and television;
Sony’s lost console sales came from a legitimate competitor. “Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly.”

The tarnishment finding fell too. The court found that the anonymous reviews proved nothing about whom players blamed, and that Sony’s two focus groups, of eight people each, did not show that the PlayStation name had suffered. It quoted the one signed review in the record: Newsweek had found that the program played “surprisingly well”.

How it ended

The ruling settled the injunction, not the whole case. APC reported in May 2000 that the program ran about 100 of the more than 500 PlayStation games on G3 Macs. Connectix released a Windows version soon after the ruling; the Italian magazine Zeta reported it in April 2000, and PC Player found it on sale in Germany for 100 marks that September. The Supreme Court declined to hear Sony’s appeal on 2 October 2000. The Register reported that Sony had also brought a separate patent suit, and APC later described the dispute as one over copyright and patent law.

The end came by purchase. In March 2001 Sony bought the Virtual Game Station and its related assets, Connectix agreed to stop selling it at the end of June, and the two companies announced they would work together on emulation technology. Computer Gaming World reported that “Sony now owns all core assets related to the Virtual Game Station”. Looking back in 2005, Electronic Gaming Monthly wrote that the program “died mysteriously after Sony bought the rights to it”.

What the case decided

The Virtual Game Station is gone, but the ruling stands. In the United States, a programmer who copies a console’s firmware in order to understand how it works, and then writes original code, is protected by fair use; what matters is what ends up in the finished product. That is a narrower thing than “emulation is legal”. The ruling said nothing about copying or distributing BIOS images or games, and APC warned in 2000 that other countries, Australia among them, gave reverse engineering much less protection.

Three months after the Connectix decision the same court ruled against Sony again, in its case against bleem!, which sold a PlayStation emulator for Windows PCs. It held that bleem! could use screenshots of PlayStation games in advertising that compared how they looked on a television with how they looked through its emulator. The Connectix case has outlived both emulators. In 2021 the US Supreme Court cited it in Google v. Oracle, as an example of fair use applied to “intermediate copying necessary to reverse engineer access to unprotected functional elements within a program”. The Vault’s entry on emulation tells the story of Connectix, bleem! and UltraHLE alongside each other.

Sources

Sony Computer Entertainment Inc. v. Connectix Corp., 48 F. Supp. 2d 1212 (N.D. Cal., 20 April 1999), Judge Legge: filing on 27 January 1999; the two applications for a restraining order and the one granted on 11 March; the hearing of 9 April; development from about 1 July 1998, the downloaded Japanese BIOS, the console taken apart, the September 1998 request for help; the Macworld announcement of 5 January 1999; the findings on copying and “They actually used that code”; the tarnishment finding and the online reviews; the terms of the injunction. Text via the Caselaw Access Project (web): https://static.case.law/f-supp-2d/48/cases/1212-01.json
Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir., 10 February 2000), Judge Canby: the judges, counsel and friends of the court; the argument on 14 September 1999; the reverse engineering and Aaron Giles’s disassembly; the holding; the reliance on Sega v. Accolade; the switched-on computers; the patent-law passage; the four factors; the tarnishment ruling, the focus groups and the Newsweek review. https://static.case.law/f3d/203/cases/0596-01.json
Sony Computer Entertainment Inc. v. Connectix Corp., 531 U.S. 871 (2 October 2000): certiorari denied. Via CourtListener (web): https://www.courtlistener.com/opinion/9261379/sony-computer-entertainment-inc-v-connectix-corp/
Sony Computer Entertainment America, Inc. v. Bleem, LLC, 214 F.3d 1022 (9th Cir., 4 May 2000): screenshots in comparative advertising. https://static.case.law/f3d/214/cases/1022-01.json
Google LLC v. Oracle America, Inc., 593 U.S. 1 (5 April 2021), opinion of the Court, slip opinion pp. 17 and 34: citations of Connectix. https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf
Official US PlayStation Magazine volume 2 issue 6, March 1999, p. 6 (editorial) and p. 30 (news): the Virtual Game Station described, its G3 requirement, Connectix’s other emulators, Roy McDonald’s statement.
Official US PlayStation Magazine volume 2 issue 7, April 1999, p. 28: Sony’s lawsuit and its list of claims.
Edge issue 68, February 1999, p. 10: the Macworld unveiling.
Edge issue 69, March 1999, p. 8: the suit filed on 27 January, the $50 price, the refused restraining order, “Reverse engineering is not illegal.”
Edge issue 72, June 1999, p. 11, “Sony strikes back at Connectix”: the preliminary injunction, its terms, Sony’s claims, Roy McDonald’s response.
APC (Australian Personal Computer), May 2000, emulators feature, “Emulation and the law”, pp. 198–200: the decisions, the number of games that ran, the Australian position.
Zeta (Italy) volume 6 issue 60, April 2000, p. 23: the Virtual Game Station released for PC after the ruling.
PC Player (Germany), September 2000, p. 66: the Virtual Game Station on sale for 100 marks.
APC, May 2001, news, “PlayStation dispute ends”: Sony’s purchase of the assets, the end of sales in June, the joint work on emulation, the copyright and patent claims.
Computer Gaming World issue 203, June 2001, p. 105: “Sony now owns all core assets related to the Virtual Game Station”.
Electronic Gaming Monthly issue 197, November 2005, p. 187: “died mysteriously after Sony bought the rights to it”.
Tony Smith, “Sony buys PlayStation emulator”, The Register, 15 March 2001 (web, secondary): the sale, the June deadline, the separate patent suit. https://www.theregister.com/2001/03/15/sony_buys_playstation_emulator/
“Supreme Court refuses to rule on Sony v Connectix”, The Register, 14 October 2000 (web, secondary): the Windows release in 2000 and Sony’s patent suit. https://www.theregister.com/2000/10/14/supreme_court_refuses_to_rule/