Midway Mfg. Co. v. Strohon
564 F. Supp. 741, 219 U.S.P.Q. (BNA) 42, 1983 U.S. Dist. LEXIS 16546 (1983)
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Rule of Law:
A computer program's object code is a copyrightable literary work, separate from the audiovisual display it generates. Fixing this object code in a Read Only Memory (ROM) chip does not make it a purely utilitarian object, and its substantial duplication constitutes copyright infringement.
Facts:
- Midway Manufacturing Company (Midway) created and sold the highly successful PAC-MAN arcade game.
- The game's audiovisual display and its underlying computer program, which was stored on Read Only Memory (ROM) chips, were protected by separate copyright registrations.
- Arcade operators like Roger Strohon (Slayton) faced reduced profits as players mastered PAC-MAN, creating demand for 'enhancement' kits to increase the game's difficulty.
- Slayton created and advertised the 'CUTE-SEE' modification kit, which included five replacement ROMs and instructions for installation into a PAC-MAN machine.
- The CUTE-SEE kit's instructions directed users to replace four of Midway's 'instruction' ROMs and one 'character' ROM, while removing another character ROM entirely.
- When installed as directed, the CUTE-SEE kit produced a game with different characters (block figures instead of gobblers and ghosts) and a modified maze.
- A technical comparison revealed that the code on the CUTE-SEE instruction ROMs was 89% identical to the code on Midway's copyrighted PAC-MAN ROMs.
Procedural Posture:
- Midway previously obtained a preliminary injunction in the U.S. District Court against Roger Strohon (Slayton) for infringing its PAC-MAN copyrights and trademarks.
- Midway filed a motion in the same district court seeking to find Slayton in civil contempt of the prior injunction.
- The motion was based on Slayton's advertisement and planned sale of a 'CUTE-SEE' modification kit for PAC-MAN machines.
- Midway also requested that the court modify the preliminary injunction to specifically prohibit the sale of the CUTE-SEE kit.
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Issue:
Does the sale of a modification kit that substantially copies the object code from a video game's copyrighted computer program stored on ROM chips constitute copyright infringement, even if the resulting audiovisual display is not substantially similar to the original game's display?
Opinions:
Majority - Will, District Judge
Yes, the sale of the CUTE-SEE kit constitutes copyright infringement of Midway's computer program. A computer program's object code is a distinct 'literary work' protected by copyright, separate and apart from the audiovisual work it creates. The court reasoned that Congress intended to protect both human-readable 'source code' and machine-readable 'object code,' as protecting only the former would be a 'pyrrhic' victory if the functional object code could be freely copied. Fixing the object code on a ROM chip, creating 'firmware,' does not strip it of copyright protection by rendering it a purely utilitarian object, as its primary function is still to store the protected program. Because an expert analysis revealed that 89% of the code on Slayton's CUTE-SEE instruction ROMs was identical to Midway's copyrighted ROMs, this constituted substantial similarity and therefore infringement of the computer program copyright, even though the resulting audiovisual display was not itself infringing.
Analysis:
This decision was pivotal in early software copyright law, establishing that object code is protectable as a 'literary work.' It affirmed that embedding code into a physical chip (firmware) does not negate its copyright protection, preventing a massive loophole for infringers. Most importantly, the court legally separated the copyright for the underlying program from the copyright for the audiovisual output. This created the foundational legal principle that a program can be infringed even if the on-screen visuals are different, which is critical for protecting software logic and structure.
