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ATARI, INC., Plaintiff,

v.

JS & A GROUP, INC., Defendant.

597 F.Supp. 5 (N.D. Ill. 1983)

This appears to be the first case to analyze and consider 17 U.S.C. sec. 117, which provides that owners of copies of computer software can make copies of the software for "archival" purposes.

Atari manufactures and sells a home computer video game system, the "2600", and game cartridges such as "CENTIPEDE" and "PAC-MAN" for use in the 2600. In order to play the games at home, the consumer connects the Atari computer to a television set and plugs his controls, or "joysticks", into the computer. A game cartridge, which is usually purchased separately, is then inserted into the computer. The computer program in the cartridge causes the audiovisual aspects of the game to emanate from the television. Atari has copyrighted its video games as audiovisual works. In addition, it is seeking to register a copyright of the computer program for the CENTIPEDE game.

JS&A is a retailer of electronic products. It began to market its PROM BLASTER, a device for the duplication of those video games which are compatible with the Atari 2600 home computer. The PROM BLASTER has two slots, one for a 2600-compatible cartridge and one for a blank cartridge sold by JS&A for $10. In the words of JS&A's advertisements, "[y]ou simply plug in your Atari or Activision cartridge in one slot and a blank cartridge in another, press a button and three minutes later you've created an exact duplicate." JS&A markets the PROM BLASTER primarily as a means of making "back-up" copies of 2600-compatible games.

The court finds that JS&A's PROM BLASTER does not make a backup copy to protect against "mechanical or electrical failure," as is required by section 117, but instead protects against accidental physical dangers due to the nature of the unerasable and nonreprogrammable ROM inside each cartridge. This danger is no different than accidentally shredding a handwritten literary work, and is thus not protected under section 117. JS&A also argued that since they offered a series of 9 games that they permitted to be copied and sold without restriction, the device had substnatial noninfringing use (the court didn't buy it, given the massive number of other games on the market for the Atari 2600 game console). There being no other substantial noninfringing use, the court grants Atari a preliminary injunction enjoining JS&A from selling the PRO BLASTER. Note that the court in Vault v. Quaid (case summary to follow later) declined to follow the reasoning in this case.
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