Elysian Shadows

Sony v Bleem wrote:Falco Girgis
2/17/11
CPE496
Ethics Case

SONY COMPUTER ENTERTAINMENT AMERICA v. BLEEM, ___ F.3d ___ (9th Cir. 2000)
Before: DIARMUID F. O'SCANNLAIN, EDWARD LEAVY, and PAMELA ANN RYMER, Circuit Judges.

BACKGROUND
The case of Sony Computer Entertainment of America vs Bleem was a lawsuit that affected me directly as teenager. Bleem was an independent software development company comprising of two very talented programmers. The year was 1998, and the main competitors dominating the video game market were Sony (with the Playstation), Nintendo (with the Nintendo 64), and Sega (with the Dreamcast). Rand Linden of Bleem developed a full software emulator of Sony's Playstation. The original emulator could play Playstation games on a PC simply by inserting a Playstation (PSOne) game disc into the PCs CD-Rom drive. This was a groundbreaking achievement in software emulation, as the hardware capable of creating 3D graphics in real-time was brand new. This emulator was written in pure assembly, and was one of the first video game console emulators to utilize hardware acceleration provided by the GPU (rather than handling all rendering in software) of a PC.

After the release of this software, Sony Computer Entertainment of America filed many lawsuits against Bleem, contesting that allowing other platforms to play games written specifically for their hardware was unlawful. In every case, the courts ruled in favor of Bleem: the creation of a commercial software emulator through reverse engineering is legal and fair. Bleem continued development on its emulator and embarked on an ambitious endeavor to port the software emulator to the Sega Dreamcast. About a year later, the Playstation's 32-bit RISC processor (clocked at 40Mhz) was fully emulated by the Sega Dreamcast with a 32-bit SH4 processor (clocked at 200Mhz). To make matters worse for Sony, the Playstation 2 was just released and provided backwards compatibility with PSone games. Bleem for Dreamcast (called "Bleemcast") was able to not only emulate the games on the Dreamcast, but it also utilized many new techniques offered by the Dreamcast's PVR GPU to enhance the graphics of PSOne games beyond what Sony was able to do even with the Playstation 2.

Considering the fact that PSOne games were now being emulated on both the PC and Sega Dreamcast better than the actual hardware (or Playstation 2) could run them, Sony had a vested interest in shutting the Bleem company down. While Sony never did win a single case against Bleem, they eventually went bankrupt from court fees incurred fighting Sony. This was one of the first "David vs Goliath" cases in the gaming industry. Due to the questionable legality of commercial software emulation, the rulings for these cases established important precedents for the field. Sony's final case against Bleem will now be discussed in detail.
Sony's Claims

The Bleemcast (Bleem for Dreamcast) emulator was available at most major video game retailer stores. On the back of the box, Bleem included a screenshot of a PSone game running on Sony's hardware, and compared it to the same scene powered by Bleem running on Dreamcast. Sony's claim was that Bleem LLC unlawfully included screenshots of Playstation games running on Sony's Playstation One. Sony acknowledged that the screenshots (which included blockiness, graininess, and aliasing issues) were accurate representations of the games running on their hardware, so the only issue in question was whether Bleem had the right to include these screenshots with their product or not.

The courts responded to this with:
[25] 16 C.F.R. � 14.15(c) (1980). Sony does not contend that Bleem's screen shots are untruthful or deceptive. In fact, Bleem's comparative advertising has the potential to accomplish all the goals espoused by the FTC. First, by seeing how the games' graphics look on a television when played on a console as compared to how they look on a computer screen when played with Bleem's emulator, consumers will be most able to make "rational purchase decisions." Sony argues that Bleem can advertise without the screen shots, which is certainly true, but no other way will allow for the clearest consumer decisionmaking. Indeed, Bleem's advertising in this fashion will almost certainly lead to product improvements as Sony responds to this competitive threat and as other emulator producers strive for even better performance.

Bleem's Defense
Bleem acknowledged that the company obtained screenshots of software running on Sony's hardware without permission. However, Bleem contested that the use of these screenshots with their product constituted fair use.

[13] Bleem admits that it copied Sony's copyrighted games to create screen shots for its advertising but contends that doing so was protected as a fair use under 17 U.S.C. � 107.

The Court's Ruling
The court ruled in Bleem's favor--the company's use of screenshots from Sony's Playstation One hardware did constitute Fair Use. The largest contributing factor in the courts ruling was cited as:

[36] Bleem's use of a handful of screen shots in its advertising will have no noticeable effect on Sony's ability to do with its screen shots what it chooses. If sales of Sony consoles drop, it will be due to the Bleem emulator's technical superiority over the PlayStation console, not because Bleem used screen shots to illustrate that comparison. This fourth factor, like all the others, appears to weigh in Bleem's favor.

Although this was yet another victory added to Bleem's perfect track record against the Japanese mega company, Bleem LLC had incurred so much debt from court fees that it was forced to file bankruptcy.

Ethical Case
This particular case of Sony against Bleem established an important precinct for the entertainment industry: the use of screenshots, images, or still renders of a product for the marketing of another constitutes fair use. Many later cases cite Sony v Bleem in dealing with the legality of unauthorized screenshot use.
While this particular court case was ethically significant for the entertainment industry, the entire struggle of a young Bleem LLC versus video gaming supergiant Sony presents another series of ethical questions that still arise today. The question of "David vs Goliath" in the entertainment industry is repeated constantly in the computing world. Giants such as Microsoft, IBM, and Apple often sue small, start-up companies out of business--not because the supergiants win cases against the smaller companies, but because the smaller companies cannot afford the court fees to continue battling.

It is quite evident in Sony's repeated attempts to take down Bleem that their only interest was stopping the company at all costs. After the initial case ruling in favor of the Bleem emulator's legality, each case presented by Sony grew increasingly trivial and specific in its claims. What began as questioning the overall legality of commercial software emulation ultimately digressed to at a lawsuit over a series of 32x32 pixel screenshots on the emulator's box.

This case affected many different people negatively. As a child, I was disappointed that I could not run future PSone games that I would purchase on my favorite gaming console: The Sega Dreamcast. As a young adult, I came into contact with Rand Linden (Bleem's lead programmer). He was an amazingly passionate individual with architecture knowledge and competence with writing large projects in assembly that I had never before encountered. As an engineer who was influenced by much of this work, I find it discouraging that such an ambitious engineering endeavor can be taken down at a whim by a large corporation.

Yet another factor ruling in Bleem's behavior was that the emulator allowed the same software to operate on multiple platforms. A consumer with a Dreamcast wouldn't be required to purchase a PSOne to play PSOne games. This has a very positive effect on the software sales of the dozens and dozens of video game software companies who publish games for the PSOne. The courts present this argument in favor of the consumers and additional stakeholders (software studios):

[5] The video game market is enormous and lucrative, and Sony, with its PlayStation console and games, is a market leader, having sold more than 60 million consoles and 460 million video game disks worldwide. Emulators, such as that produced by Bleem, may not adversely affect the sales of Sony game disks - in fact, they may help them - but emulators very likely will reduce the sales of consoles.

[26] [..] Although Bleem is most certainly copying Sony's copyrighted material for the commercial purposes of increasing its own sales, such comparative advertising redounds greatly to the purchasing public's benefit with very little corresponding loss to the integrity of Sony's copyrighted material.

References:
http://www.law.cornell.edu/copyright/ca ... _Bleem.htm