Factual Background Edit
Data Cash hired a programming consultant to develop a computer program for use in a hand-held calculator chess game known as "CompuChess." The program was stored as object code in a ROM incorporated into Data Cash's product. About a year after Data Cash began to market CompuChess, JS&A entered the market with an almost identical product.
Taking advantage of recent technological advances, JS&A apparently unloaded the ROM of Data Cash's device, so that, in effect, the object code was directly transferred to the ROM of the JS&A device.
Trial Court Proceedings Edit
Data Cash was unable to secure copyright relief against the appropriation of its program for several reasons. Most significantly, JS&A had not made a copy of Data Cash's copyrighted source code. A copy of source code is source code, according to the trial court, not object code or a mechanical device, such as a programmed ROM. The court said, "[t]he ROM is not a 'copy' of the plaintiff’s computer program and therefore the [so-called] copying is not actionable."
Although the court's ruling was made under the 1909 Copyright Act, which was superseded by the 1976 Copyright Act, the court indicated that for constitutional reasons it would have reached the same result under the 1976 Copyright Act.
Appellate Court Proceedings Edit
The Seventh Circuit affirmed on wholly different grounds, refusing to pass on the issue decided below. Data Cash had marketed several thousand copies of the machine, including the ROM, without any copyright notice. It had done so because it mistakenly believed that a ROM could not be unloaded. So extensive a publication without proper copyright notice, the court held, worked a forfeiture of any copyright Data Cash had.
- ↑ The Data Cash court stated that it did not know how the ROM in defendant's product was created. 480 F. Supp. at 1071. The parties had stipulated that defendant's supplier manufactured the ROM from a punched tape received from a Hong Kong company. The parties speculated that someone unloaded plaintiff’s ROM by decoding the object program by means of a computer and then either printing it out or placing the unloaded signals into another ROM. Either way, ROMs could then be made that duplicated plaintiff’s ROM. Id. at 1071 n.14.
- ↑ Id. at 1069.
- ↑ Id. at 1066-67 n.4.
- ↑ 628 F.2d at 1041-43. The court of appeals indicated that opposing counsel below had not briefed the copy issue and were not interested in pursuing it on appeal. Id. at 1041.