Case: February 13, 2001 Decision of the Third Petit Bench
1999 (Receipt) No. 955
A Case for Recovery of Damages, etc.
1. This is an instance where the use of a memory card that caused development of a story beyond its originally-planned scope by changing the parameters set in the game software thereby infringed the right to preserve the identity of a work held by the copyright holder of the game software.
2. A person who imported, sold and placed into distribution with the intent of allowing use by other persons of memory cards the sole purpose of which was to alter game software has induced infringement, by other the persons' use thereof, of the right to preserve the identity of the game software, and is liable for damages based on tort (unlawful act).
Case Name: Case for Recovery of Damages, etc. (February 13,
2001 Decision of the Third Petit Bench, Supreme
Court 1999 (Receipt) No. 955, Dismissal)
Original Decision: Osaka High Court (1997 (Ne) No. 3587)
The appeal is dismissed.
The Appellant is liable for the costs of the appeal.
1. Outline of the Case
In this case the Appellee, who possesses the personal rights of a copyright holder with respect to the computer game software "tokimeki memoriaru" [Thrilling Memorial] (hereinafter referred to as the "Game Software"), asserts that the actions of the Appellant in importing and selling a memory card with the product name "X-TERMINATOR PS version No. 2 toki memo supeshiyaru" [X-TERMINATOR PS version No. 2 Thrilling Memorial Special] (hereinafter referred to as the "Memory Card") constitutes an infringement of the right to preserve the identity of the work possessed by the Appellee.
A summary of the factual relationship, as lawfully confirmed in the original decision, is set forth below.
(1) The Appellee has the personal rights of a copyright holder with respect to the Game Software. The Game Software is a romance simulation game in which the hero of the game (the player) becomes a pupil in a fictitious high school and selects a girl student to yearn for out of the set of characters in the game, with the aim of receiving a profession of love from that girl on graduation day. The hero must endeavor, through his course of study and by experiencing certain happenings and events over three years, to accumulate suitable abilities so that he will be worthy to receive the confession of love from the girl student.
In this Game Software, initial values are set for the nine kinds of manifest parameters (physical condition, literary ability, reason, art, drive, knowledge, appearance, disposition and stress) and three kinds of hidden parameters (ability to thrill the female student players, friendliness and degree of heartbreak; both these types of parameters herein collectively referred to as the "Parameters") that comprise the capability values of the player. Then, with commands that the player can select being set in advance, through the selection of those commands the rising and falling Parameters can be linked so that whether or not he can receive a declaration of love from the girl student will depend on the numerical values of the Parameters that the player has attained. With this Game Software, the core of the story-line is that it starts from the capability value of the hero that is established at the initial stage, and the hero himself strives to improve his own abilities, with the aim of winning the confession of love from the girl student. The game is set up so that over the course of this progress there may be encounters with other girls depending on the degree of capability level achieved by the hero. Thus the story develops within a set scope under certain set conditions.
(2) The Appellant imported the Memory Cards and sold 522 of them. Parameters usable in the Game Software are stored as data in the data memory units (blocks 1 through 13) of the Memory Cards, and when the player runs the Game Software program, the data in the Memory Card's discretionary block are read into the hardware of the game machine, so that such data can be used.
(3) The Game Software starts with the hero's ability value at a low level, and in order for it to be set up in the form that the rising and falling Parameters can be linked by the selection of commands, even if the numerical values of the most efficient manifest parameters can be raised, at the time when graduation approaches there is a limit on raising a small number of certain specified manifest parameters to a high numerical value. Almost all of the nine kinds of manifest parameters cannot be raised to a high numerical value just by the independent moves of the player himself. Further, the story development had been designed with the premise that until the numerical values of the manifest parameters reach a specified level, the girl student does not make her appearance.
In response to this, if the data in blocks 1 through 11 of the Memory Card are used, the numerical values of the manifest parameters (except for "stress") are very high from the time right after the hero enters high school. The result is that the numerical values allow play at a degree of achievement necessary to satisfy the requirements for the sought-after girl, so that she appears right after matriculation, although ordinarily that would not be the case.
Furthermore, if the data in blocks 12 and 13 of the Memory Card are used, the game jumps from its starting point to the time near graduation, and at that point the numerical values of all the manifest parameters except stress are changed to values much higher than they would normally be. Moreover, with data being stored that provides numerical values for the hidden parameters necessary to receive a declaration of love from the girl whom the hero yearns for, it becomes certain that the hero can get the girl to confess her love for him.
2. Regarding Reason 4 in the Petition for Taking Up the Appeal filed by appellant attorneys Norio Yamamoto and Tomoko Yamamoto
Since it is the case that the images in the Game Software creatively express ideas and emotions and fall within the scope of literature, science, fine art and music, and can be said to constitute a copyrighted work as provided in Article 2 Section 1 item 1 of the Copyright Act, under the factual relationship set forth above it is proper to find that the use of the Memory Card altered the Game Software and infringed the right to preserve the identity of the work held by the Appellee. Presumably, since the Parameters in the Game Software allow expression of the character image of the protagonist, and since development of the story corresponds to changes in that character, through the use of the Memory Card the character image of the hero as expressed by means of the Parameters set in the Game Software is altered. As a result, the story in the Game Software is developed beyond the scope originally planned, causing a change in the story.
The judgment in the original trial was similar to the above analysis and can be upheld as being just, so there are no illegalities in the reasoning in the decision below. This argument by the appellant attorneys is nothing more than a personal viewpoint criticizing the lower court's decision, and cannot be accepted.
3. Regarding Reason 3 in such Petition
As noted above, since through the use of the Memory Cards there is an infringement of the right to preserve the identity of the work with respect to the Game Software, pursuant to the above finding of facts the Appellant imported, put on sale and allowed many people to actually buy the Memory Cards, which have the sole purpose of altering the Game Software. That being the case, it can be concluded that the Appellant put the Memory Cards into distribution anticipating that there would be people who would actually use them. At the same time, based on the above-mentioned facts, it can be inferred that persons who purchased the Memory Cards actually used them. Accordingly, it can be found that through the use of the Memory Cards the right to preserve the identity of the Game Software was infringed, and if it were not for the aforementioned actions of the Appellant such infringements would not have occurred. Therefore, the Appellant, who imported, sold and put into distribution the Memory Cards, the sole purpose of which was to alter the Game Software, with the intent that they be used by others, brought about the infringement, by the use of the Memory Cards by third parties, of the right to preserve the identity of the Game Software, so it is proper to find that the Appellant is liable to the Appellee for damages based on tort (unlawful act).
The original decision with respect to the points of argument is proper in its conclusions and there are no illegalities in the reasoning of the original decision.
Accordingly, the justices unanimously decide the case as stated in the Holding.
(Chief Justice Masamichi Okuda, Justice Hdeo Chigusa,
Justice Toshihumi Motohara, Justice Toshihiro Kanatani)
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