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Midway Manufacturing Co. v. Omni Video Games, Inc.
668 F.2d 70 (1st Cir. 1981)

Midway, the creator of the games Pac-Man, Rally-X, and Galaxian, sued Omni for copyright infringement of these games. During the course of this suit, Midway filed a motion for an ex parte hearing seeking to impound any infringing items in Omni’s possession. A single machine, holding an allegedly infringing version of Pac-Man, was seized from Omni and impounded. However, several days later, the District Court vacated this impound order and not only returned the potentially infringing machine to Omni, but also suppressed this machine from evidence admissible at trial and ordered Midway to pay the attorney’s fees incurred by Omni as they sought return of this machine.

Illustrative authentic Pac-Man units (not the allegedly infringing version):


Midway immediately appealed to the 1st Circuit Court of Appeals, requesting reversal of the decision disallowing impoundment of the machine, suppressing it as evidence, and the award of attorney’s fees. However, Midway’s brief and oral arguments failed to address the main legal issue of this case, appellate court jurisdicion under the “collateral order” doctrine.

Under the “collateral order” doctrine, an interlocutory appeal, or an appeal to a higher court before the lower court has issued a final judgment, is rarely allowable. Such an appeal is proper only when (1) the order being appealed is a final order on an issue of law, rather than judicial discretion, (2) the issue is separable from the other issues to be presented at trial, and (3) that the appeal cannot wait until after the final judgment of the court, because irreparable harm would be probable.

Thus, the question in this case was not whether Midway’s arguments had merit, but whether Midway could appeal while its trial was still in progress. The Court of Appeals held that Midway could not appeal the orders of the District Court until after final judgment of the case.

The Court reasoned that the interlocutory appeal was improper because no irreparable damage would be done if Midway was forced to wait until after trial to appeal. At this time, Midway appeared likely to find more evidence of copyright infringement during discovery, therefore the appeal might ultimately be unnecessary. Further, even if Midway were to lose at final judgment, and Omni’s allegedly infringing machine had since disappeared, Midway could still rely on the accounts of the individuals involved in the seizure. These individual accounts, in lieu of the machine itself, would be credible evidence because they were from the neutral agents of the court who had performed the seizure. These agents had also been accompanied by a Midway engineer who could verify the technical details of the machine.

The Court further noted that under 17 U.S.C. s 503(a), the statute authorizing impoundment, a judge “may” order impoundment if he deems it reasonable. The Court interpreted this statute to establish discretionary power on the trial judge to order an impoundment, which would make an interlocutory appeal improper on this issue. Similarly, the Court reasoned that the order to suppress the machine from admissibility at trial, and the award of attorney’s fees to Omni were discretionary and reparable decisions of the District Court. Therefore, the Court denied Midway’s interlocutory appeal, and allowed the trial to resume in District Court.

Thanks to Brian Brisnehan for his assistance in the preparation of this case summary.
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