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Such is their inseparable interrelation that not a single change in
character
figuration can be made without involving a change in the story.
Now the instant game soft is a love simulation game, and the
character figuration of the hero is a most important element that determines
how the game story will develop, and even how much fun the player gets
out of it.
(iii) The character figuration of the
hero in terms of numerical values
The character figuration
of the hero in the instant game soft is expressed in terms of numerical
values of the nine parameters: physical condition, letters, science, arts,
sports, sundries, figure, fight, and stress.
Expression of "a condition"
in terms of combined numerical values is in mathematics a routine technique
that goes by the name of "multidimensional quantity" or
"quantification."
It is widely used besides "character figuration."
A pupil's physical
constitution,
for example, may be expressed in terms of combined numerical values of
height, weight, chest circumference, sitting height, ... , and the weather
condition at a certain place and a certain time in terms of combined
numerical
values of temperature, air pressure, wind velocity, humidity, ... . The
condition of a baseball player is known by his game record representing
a combination of numerical values of the nine parameters[so many at bats,
scores, hits, runs batted in, strikeouts, walks, sacrifices, steals and
errors], which will reveal his condition as well as his individuality.
This applies to the instant
game soft, in which the combination of numerical values of the nine
parameters
shows its hero's condition and his individuality. It thus functions
as a characterization of the hero.
From the above we may say that changing the numerical values of
the nine parameters in the instant game soft is none other than changing
the character figuration of its hero.
(iv) The instant game soft is designed for
the hero to play the game of three years' high school life in which he
imprints his individuality on his inner side (status) and his outer side
(getting along with girl students), and finally to be rewarded with an
ending he merits according to the credit he has earned for his individuality
thus imprinted.
Now at the outset the hero
as a starting high school student is credited with 100 in physical
condition,
4 in letters, 40 in science, 40 in arts, 40 in sports, 32 in sundries,
60 in figure, 5 in fight, and 0 in stress. This means that at the start
of the game the hero has no particular individuality, and that the way
he will play the game has in it all latent possibilities of developing
his individuality, in whatever direction it may be.
But the hero as a high school freshman is rated, for instance,
at 999 in all the parameters except 0 in stress by block 1 of the instant
memory cards. It means that he is transformed into an extraordinary
student. His scholarship, for one, is such from the first that he will
sit totally unprepared for the first term-end examination on July 10, 1995
and for all that he will emerge at the top of the list.
We need hardly point out that such a modification is so seriously
damaging as to bring to naught all the efforts the individual designers
of the instant game exerted in determining the hero's individuality as
stated above.
Moreover, in the instant case the modification of the hero's
character
figuration will in its turn bring about serious modifications of other
parts of the instant game soft.
2 Modification of "game balance," an essential element
of the "story" of the game soft
(i) The proper game development of the instant
game soft
The game development of
the instant game soft is designed for the hero to begin with the numerical
values of the nine parameters indicative of his inner side and those of
the three undisclosed parameters indicative of what girl students think
of him, and to spend three years of high school life, contriving on the
one hand to bring the values of open parameters up to certain figures while
keeping an eye on balance, and on the other hand to bring the values of
the undisclosed parameters to certain values, and only if he meets both
requirements as stated below, the game comes to a happy ending in the form
of a declaration of love won from the lips of a girl student like Shiori
Fujisaki on the day of graduation.
Here the three undisclosed parameters are heart's throbbing,
friendliness
and heartbreak whose numerical values are affected by factors such as
frequency
and quality of dates with Shiori Fujisaki and others, attitudes to school
events (term-end examinations, school sports, cultural festivals etc.),
health condition (neurosis, medical checks), company with a girl student
on the way back from school, gifts presented, and factors for other girl
students' estimation.
To give a concrete illustration, the game is designed in such
a way that the hero can win a confession of love from the lips of prime
target Shiori Fujisaki when he has fulfilled the two requirements: (a)
that, as to the nine open parameters, he get at least 130 in letters,
science,
arts, and sports, 120 in sundries, and 100 in figure and fight, and (b)
that, as to the undisclosed parameters, he get at least 80 in heart's
throbbing,
at least 50 in friendliness, at most 50 in heartbreak, and at least 8 dates.
(ii) The instant game soft has in it two inherent
types of game balance:
(l) Game balance in increasing the values
of all the open parameters
together
The two requirements for winning the heart of prime target Shiori Fujisaki
in the instant game, reflecting her high standard of an ideal man, are
that he be at once a brilliant scholar and a good sportsman, and that he
be a handsome man as wellAor, that in concrete terms, that the above
parameter values be attained.
As a matter of fact, however, the way the game is designed is
this: If one command is chosen, the value of a specific parameter does
not go up alone, but the values of all the other parameters are affected
and changed, the values of about one half of them being even abated. Choose,
for instance, the command for the letters parameter to augment its value,
and the values of physical condition, sports, figure, and fight will drop.
Or choose the command for the sports parameter to lift its value, and the
values of physical condition, letters, science, arts, and figure will fall.
If, therefore, commands for
studies (letters, science, and arts) only are chosen, the value of the
sports parameter will go lower and lower, while a command for sports only
is chosen, the values of studies will go down and down. Thus commands chosen
have an adverse effect upon certain other parameters as it happens between
studies (letters, science, and arts) and sports, between studies and figure,
or between sports and figure. Especially a player aiming at winning the
heart of Shiori Fujisaki will face a dilemma, because he must bring up
all the parameters except stress. This is what we understand by game balance
here (called game balance type A for the present purpose). The player must
rack his brains to think out how to choose from among all the commands,
keeping an eye on game balance type A.
(2) Game balance in increasing the values of open
parameters and undisclosed parameters together
The instant game has in
store a dilemma or an obstacle as stated below: Now a date with a girl
student is an event most important in increasing the values of undisclosed
parameters, but it is allowed only on holiday mornings to propose a date
by phone or to have a date. It is no easy matter for a player to succeed
in increasing the values of the nine open parameters as he likes, but he
is relieved of this difficulty by choosing the command for letters and
the like, because he can then earn four week days' credit. If he relies
on this advantage by choosing letters or other studies on all holidays
to lift the values of the nine open parameters efficiently, he will fall
into a dilemma, for he will then miss opportunities for dates, a thing
of equal importance. This is also what we understand here by game balance
(called game balance type B for the present purpose).
On holiday mornings, a player, mindful of game balance type B,
must make up his mind which command to choose: a command for an open
parameter,
or a command for having or proposing date to enhance an undisclosed
parameter.
It is on holiday mornings
only that a player can have or propose a date with a girl student, an
important
event to enhance an undisclosed parameter, but it is on holiday mornings,
too, that he can most effectively choose a command for letters or other
studies, though with this limitation that he cannot choose more than one
command on one holiday morning by the rules of the instant game soft.
In these circumstances he will have no choice but to try to maintain a
balance with an eye on the development of the game.
(iii) Effects of the data in blocks
l -- 11 of the instant memory cards upon the game balance in the instant
game
(l) For instance, block
l of the instant memory cards credits the hero with 999 in all the nine
parameters except 0 in stress right after entering high school (on April
9, l995). What does this mean to the game balance in the instant case?
With regard to the values of the nine open parameters (requirement (a)),
he has gone well over the required minimum of 130 in letters, science,
arts, and sports, 120 in sundries, 100 in figure and fight, with no
possibility
of getting 999 lowered during three years except in extraordinary
circumstances.
The maximum reduction of an average of -0.75 a week day is possible in
sports by choosing a command for science, or in figure by choosing a command
for repose. Suppose he does it all week days during the three years (801
days). In either case the maximum reduction in the value of the chosen
parameter will be 999 -- 0.75 x 801 = 398.25, so that he need not be worried
about this matter. He has only to concentrate upon fulfilling the conditions
concerning the undisclosed parameters (requirement (b)).
(a) As to game balance type A
As seen above, the instant memory cards have done
away with the very need to raise the values of the nine open parameters
for the development of the game, and the fear, too, of being caught in
a dilemma while attempting to increase those values. Game balance type
A is totally thwarted in its purpose.
(b) As to game balance type
B
As stated
above, a player then has only to concentrate on fulfilling the conditions
concerning the undisclosed parameters, so that on holiday mornings he does
not have to vacillate between two choices: a command for some open parameter
or a command for some undisclosed parameter like one for having or proposing
a date, so that game balance type B as originally devised is rendered wholly
devoid of significance.
(2) The above remark applies not
only to block l of the instant memory cards, but also to blocks 2 -- 11.
For instance, in order to win a declaration of love from Saiko Katagiri
at the end of the game, a player must attain at least 120 in arts, and
at least l00 in figure. Now suppose the data in block 4 are 999 in physical
condition, 0 in letters, 0 in science, 999 in arts, 999 in sports, 999
in sundries, 999 in figure, 0 in fight. It is stated on the package of
the instant memory cards, a player can play the game with the status fit
for each individual character. The above data, therefore, more than fulfill
the requirements of "at least 120 in arts and at least 100 in figure,"
and 999 in these two parameters will in practically no circumstances fall
during three years (the reason given above applies here as well),
so that a player will have only to concentrate on the undisclosed parameters
as in the case of block l.
(iv) Conclusion
The foregoing shows that
with regard to Shiori Fujisaki and other girl students the required values
of open parameters are already attained by blocks 1 -- 11 of the instant
memory cards, with the evident result that the game balance of both type
originally devised by plaintiff when creating the instant game soft has
been utterly ruined; in other words, they have both been undeniably
modified.
The foregoing also shows
that the "game balance" is literally balance in the development of a game
and is indeed a key element of a game soft determinative of the fun the
player will get out of it.
Game balance is the individual game designers' device in expression
as to the progress and structure of a game, and may be called a form of
inner expression in the sense that it is not expression directly visible
to the eye.
As against game balance,
the "story," a key entity as to the progress and structure of a film or
a novel, and a determinative factor in the fun the player will get out
of it, is a form of inner expression of a film or a novel.
Then "game balance" may be characterized as an element of the
"story" that forms the backbone of a game soft, even a crucial element
of the "story" proper to a game soft. There is no denying, therefore, that
the "story" has been modified by the instant memory cards.
3 Modifications as to individual events
Now let us turn to the modifications in the contents of the whole
game soft work attributable to the modification of the character figuration
of the hero, and we find the following "modifications visible to the eye."
(i) Change of "the time of the first
encounter with a girl student"
The instant game soft work is designed to make different girl
students appear before the hero with the progress of the game in such a
way that when (but not until) his respective parameters attain certain
values, a girl student corresponding to such values appears on the screen
to encounter him. For instance, take the case of the girl student Mio
Kisaragi.
The player has a 1/3 probability of getting her on the screen by choosing
the command for letters if his letters parameter is at 55 or more (if
acquainted
with no girl) or at 75 or more (if acquainted with one or more girls).
In the instant game soft work, required denominations of parameters vary
with the girl student, so that by no contrivance whatever can he encounter
more than three girl students before May of the first year. Thus there
is a certain latitude in game development originally allowed for changing
"the time of the first encounter with a girl student."
However, by block l of the instant memory cards, for example,
the hero's status is changed to 999 in all parameters except stress as
of April 9, 1995, so that he can get a girl student on the screen without
so much as playing to raise the values of parameters. As a result,
he can encounter a maximum of six girl students by May of the first
year. It follows then that game development as to "the time of the first
encounter with a girl student" realized at least by block l of the instant
memory cards is evidently a deviation from the original "latitude in game
development."
There is no denying, therefore, that block l of the instant memory
cards has brought about a modification as to "the time of the first
encounter
with a girl student."
(ii) Significance of the above
modification
"The first encounter with a girl student" is indeed one of the
visible events in the sense that the girl student actually appears on the
screen and speaks to the hero. Therefore, it is not an element of the
"story"
or a form of inner expression "invisible to the eye," but an element of
an individual event or a form of outer expression "visible to the eye."
"The time of the first encounter with a girl student" has
significance
to the contents of the instant game in that, but for this first encounter
with the girl student, no subsequent dates will be possible, with the
consequence
that no requirements as to undisclosed parameters can be met. In this sense
timing of the first encounter is important in the game designers'
determining
different parameters and different values for different girl students as,
for instance, letters at 55 or more for Mio Kisaragi and science at 60
or more for Yuna Himoo, or determining that he cannot encounter more than
three girl students before May of the first year (see above).
But block l of the instant memory cards has made an encounter
with any girl student instantly possible from May of the first year, thereby
rendering inoperative the game designers' conditions for the first enter
with a girl student. This is a serious modification, too.
4 Conclusion
As demonstrated above, the data in blocks 1--11 have brought
about modifications of the instant game soft work as to "the character
figuration of the hero," "game balance" and "individual events."
[Blocks 12 &13 of the instant memory cards]
1 Modification of the character figuration of the hero
(i) Change of the values of parameters as
of February 22 and 25, 1998
Blocks 12 & 13 of the instant memory cards contain the values
of the nine parameters as of February 22 and 25 respectively.
The values of the nine
parameters
in the instant game soft as of February 22 and 25 are changed by blocks
12 and 13 of the instant memory cards, -- for instance, by the latter as
follows: 999 in physical condition, 998 in letters, 998 in science, 998
in arts, 997 in sports, 894 in sundries, 868 in figure, 987 in fight, 0
in stress.
Suppose a freshman who sets 999 as a target point in the eight
parameters other than stress in the instant game soft starts striving toward
his goal on April 4, 1995 and continues doing so till the day of graduation,
March l, 1998. How much can he achieve at most? Upon mathematical
verification,
it has been found that the utmost he can do will be 378 in physical
condition,
0 in letters, 0 in science, 0 in arts, 999 in sports, 733 in sundries,
366 in figure, 815 in fight, 0 in stress. Evidently it is absolutely
impossible
to attain the above values in block 13 by a proper game development of
the instant game soft.
The same may be said of the changed values of parameters in block
12: 999 in physical condition, 998 in letters, 995 in science, 998 in arts,
998 in sports, 873 in sundries, 849 in figure, 973 in fight, 0 in stress.
Hence it follows that the
values of nine parameters as of February 22, 1998 (block l2) and as of
February 25, 1998 (block 13) are evidently a deviation from the original
"latitude in game development" as of the respective dates.
(ii) Significance of the above modification
(change of the character figuration)
Any change of the values of the nine parameters is none other
than a change of the character figuration of the hero in the instant game
soft work.
Moreover, in this case blocks 12 and 13 suddenly started the game
only a week before graduation, i.e., on February 22 and 25, l998
respectively.
This brings about serious modifications in other contents of the instant
game soft, too.
2 As to starting the game on February 22 and 25, 1998, a week
before graduation (cutting "the story")
The story of the instant game soft is supposed to be for three
whole years' high school life from entrance till graduation. The game
designers
have exerted their ingenuity in designing a game that would allow the player
to enjoy various experiences all through that period of time. But blocks
12 and 13 of the instant memory cards skip over nearly all of "the story"
to make it start abruptly a week before graduation. This is a deletion
of "the part of the story covering the period from the beginning to a week
before graduation" from the fundamental elements of "the story" originating
with the game designers, and it is without doubt no trifling modification
of the essential contents of the work.
Thus it is a serious alteration of "the story" and at the same
time an infringement of the right to preserve the integrity of a work just
as is the act of starting with the last scene in
exhibiting (or broadcasting or videoizing) a film.
Defendant, however, denies this by distinguishing a game soft
from a film. The reason it advances is that a theater film has an invariably
fixed story, while a simulation game like the one now under dispute has
no fixed story, of which an important element is the player's own active
participation and choice pregnant with an infinite variety of developments.
But this is an utter mistake, for plaintiff is talking about the
period of three years at high school in "the story" predetermined for the
instant game soft, and the period of three years is absolutely fixed, and
leaves no room for alteration that depends on the player's participation
or choice. Admitting that the instant game soft has its own vast variety
of developments, an absurd development of the gam that starts with an almost
ending scene is fatal to the fun of playing the instant game, and was
certainly
the very last thing in the minds of the game designers."
3 About starting the game on February 22 and 25, 1998, a week
before graduation (doing away with "interactiveness")
(i) "The traditional way of appreciating a
work" such as a film, music, or a novel is characteristic of one-sidedness
because the work moves one way only from the author to the appreciator
(spectator or reader). As against it, the new way of appreciating
is both-sided or "interactive" in the sense that "the game soft makes
progress
with the player's inputting behavior and gets its concrete substance
determined."
In other words, "interactiveness" in the way of appreciating a game soft
work in the instant case is the appreciator (player)'s participation in
such a way that (a) the game does not make progress without his choice,
and that (b) the game gets orientation from what the player has chosen.
From the standpoint of the author of the game soft,
"interactiveness"
in its appreciation may be defined not merely as the "both-sidedness"
through
the player's inputting behavior, but also its contents into which the
structure
of such "both-sidedness" is incorporated.
(ii) The substance of "interactiveness" in the instant
game soft
In the instant game soft, there are only two kinds of commands
for choice as follows:
(a) "the day's behavior to be chosen
on Sunday or holiday mornings (four alternatives: a. commands for raising
the hero's parameters, b. commands involving use of the telephone, c.
commands
for dating, d. commands for club activities), and
(b) "behavior during the next week's
week days from tomorrow" to be chosen on Sunday or holiday nights (only
commands for lifting the hero's parameters).
Unless the player chooses one or more commands, not a single day passes,
nor comes March 1, 1998 when the fate of his pursuit of the goal is known;
the orientation of the game's contents depends on his choice.
(iii) How "interactiveness" and "the story" are interrelated
The term "interactiveness"
has so far been defined mainly from the point of view of the user such
as the player, but from the point of view of the game designers, it is
none other than their devices in expression as to the progress and structure
of the game, in the sense that the choice of commands triggers the progress
of the contents of the instant game, and that the way he chooses commands
determines orientation for such contents individually and concretely. It
is a key determinative factor in the fun of the game (the game designers
work out actual contents of a game, always mindful of what the player will
think and how he will react through the controller for inputting). As
interactiveness
thus always rests on concrete contents, their individualistic expression
is given full play. Here devices in expression, as distinct from
characters, speech or music, are a form of inner expression not directly
visible to the eye or audible to the ear.
Therefore, "interactiveness" is a crucial element of "the story"
of a game soft, like "the story" of a film or a drama, which is a
fundamental
concept as to its progress and structure, a key determinative factor in
the fun of the game, and is a form of inner expression.
(iv) Effects of blocks 12 and 13 of the instant memory
cards upon "interactiveness"
Starting the game on February 22 and 25, 1998, a week before
graduation is after all doing away with the "interactiveness" designed
in this case as a device in expression for the whole period of time from
the start of the instant game to a week before graduation. Such an
unauthorized
act of deleting "interactiveness" as a device in the expression of a game
soft is a "modification of the contents of a work" that constitutes an
infringement of the right to preserve its integrity.
4 Conclusion
The foregoing has established that the data in blocks 12 and
13 of the instant memory cards have brought about a "modification of the
character figuration of the hero," a "modification of the story," a
"modification
of interactiveness" of the instant game soft work.
[Defendant's argument in this instance]
I Plaintiff's argument in this
case seems to support the conclusion that the use of the instant memory
cards disturbs the game balance and causes a deviation from "the
predetermined
latitude of the game development" in the game soft with the result that
the right to preserve its integrity as a film work. But it is untenable
under the Copyright Act as it is properly interpreted.
In the final analysis plaintiff contends that, in a simulation
game, too, a player may not go beyond the bounds subjectively set by the
game designers and that the act of breaking the subjective bounds
constitutes
an infringement of the right to preserve the integrity of the game as a
film work.
Firstly, however, plaintiff totally overlooks the characteristics
of a simulation game that a simulation game cannot come into being without
a player's independent participation, conversely stated, that such a game
is distinguished from a play film or a novel in that it is a special kind
of work in which the development of the story, or the contents, are not
completely fixed.
Secondly, what plaintiff calls "the predetermined latitude of
the game development" is stated nowhere in the program, still less on the
package of the game or in the manual, so that a third party has no means
of objectively knowing it. Such a thing is no doubt out of the question
as an object of copyright protection. If the designer of a game intends
not to allow a deviation from a limited latitude in inputting parameters,
all there is for him to do is to so program it.
Thirdly, plaintiff's argument is no less than the claim that not
only a program itself, but also mere save data (mere parameters or figures)
generated while executing a program should be recognized as copyrightable.
There is no doubt that it will entail very unreasonable consequences. For
instance, if newspaper articles or photographs are in the form of digital
data, they should of course be accorded copyright protection just as in
man-readable form. But evidently we would be going too far if we
extended game maker's copyright to mere save data (parameters) that have
only incidental meaning in the execution of a specific program.
II We dispute the characterization of
the instant game soft as a film work.
To qualify as a film work
a game soft must fulfill three requirements: (l) that it be expressed by
a process producing visual or audio-visual effects analogous to those of
a film, (2)that it be fixed in some material, (3) that it be a work of
authorship. A regular film is a product of editing (selecting and combining)
a large number of short-time series of similar images made in advance.
A film so produced is neither a compilation or a collective work into which
those series of images are incorporated, nor a work of joint authorship
or under joint copyright ownership of those who creatively participated
in the making of the respective series of images.
Those who have creatively participated in the making of a film as a
whole are the only authors of a "film work."
As seen above, the
most important and essential creative act in a film work is the editorial
act of which cutting and montaging are typical. There it is decided which
short series of images out of many should be presented, in what
positions,
and in what order, and so forth. Even if two films have some of those short
series of images in common as material, they are two distinct film works,
so long as they can be distinguished by the way the materials are selected,
combined, or ordered.
For a film work to qualify
as such its expression in a creative way must be by a "process producing
visual or audio-visual effects analogous to those of a film" must be "fixed
in some material."
"Fixed in some material" means "the state in which a work exists
preserving its integrity by being fastened in some manner to a
material
object and is capable of reproducing its expression." Under the Copyright
Act, * 2 (3) as it is read straightforward, a "film work" means not
components
or gathered groups of original works, but an expression itself as a "film
work," that is, certain series of images in which thoughts or sentiments
are expressed in a creative way. The state in which a "film work" "exists
preserving its integrity by being fastened in some manner to a material
object" means that groups of series of images presented in fact as they
are selected, combined and ordered are recorded in a material object,
and it can be said to be "capable of reproducing its expression," only
when that material object, if reproduced in a certain way, can express
certain groups of series of images in certain combinations in certain order.
A film, videotape, videodisk etc. that on a duplicating machine will always
reproduce identical successive images are in a state as just described
above.
The most important creative act in the production of a film work
is editing, and its essential characteristic of its form of expression
as such stands out when it is "fixed in some material."
The instant game soft is a simulation game, and the order and
the combinations in which certain successive images appear naturally vary
with the operation of the player. It is practically impossible to present
certain successive images in certain combinations and in certain order,
because the game depends on random digits in some parts. In the case of
the instant game soft, therefore, it does not meet the requirement that
an expression made in a creative way be fixed in some materal.
Pt 3 Discussion and opinion of this court
I Characterization of the instant game soft as a work
1 Plaintiff is a corporation that is mainly engaged in
the manufacture and sale of computer game softs and other amusement
apparatuses
(an undisputed fact). On its initiative it had a computer game soft named
"Tokimeki (heart's throbbing) Memorial" (the instant game soft) produced
by its employees in the course of their duties and on May 27, 1994 it put
it on the market as a game soft for use on a game machine "PC Engine" in
the name of plaintiff as author. Afterwards it released a version for the
game machine "Play Station" under the title of "Tokimeki Memorial -- forever
with you --" on October 13, 1995, and a version for the game machine
"Superfamicon"
under the title of "Tokimeki Memorial-- under the legendary tree --" on
February 9, 1996 (A1 (1)--(2), gist of the whole argument).
There is no dispute between the parties that plaintiff has the
author's moral (personal) rights and copyright to the instant game soft
(except as to its contents).
2 The contents of the instant game soft are
a love simulation game in which the player of the game (hereinafter simply
the player), acting in the role of a student (the hero) of the fictitious
"Glittering High School," spends three years of high school life through
various incidents and events to gain an ability that makes him a good match
for a girl student he adores and chooses as his target before the others
he is to meet, with the goal of a happy ending in the form of her confession
of love under the legendary tree on the day of graduation.
In the instant game soft, whether the hero can reach a happy ending
by winning a confession of love from the lips of the girl student he aspires
to on the day of graduation, or his three years' high school life closes
with a bad ending with no such confession from any girl student depends
on how the hero acts during that period of time. Even if, therefore,
he first succeeds in arriving at the happy ending, he can next time enjoy
an entirely different game development by behaving otherwise (by changing
his approaches to studies, sports, events, and the like), and so he may
get a confession of love from a different girl student (Shiori Fujisaki
and ten other girls' figuration varies in character, figure, taste or type
of a man they like, and so on), or he may get one from the same girl student
but by behaving otherwise.
The instant game soft, if put into execution, will show the
following
game development (A11, KA1,2):
(i) Introduction (Beginning)
It begins by inputting the name of the player of
the game (family name, first name, nickname), his birthday and blood type.
The ability of the player is expressed in numerical values as to the nine
elements: physical condition, letters, science, arts, sports, sundries,
figure, fight, and stress (these numerical values hereinafter called open
parameters), whose values at the start (on April 4, 1995) are set at 100
in physical condition, 40 in letters, 40 in science, 40 in arts, 40 in
sports, 32 in sundries, 60 in figure, 5 in fight, and 0 in stress. And
initial values are also set in three "undisclosed parameters" -- heart's
throbbing, friendliness and heartbreak -- which indicate how the hero is
thought of by girl students. The icons arranged by 3 lines x 5 rows stand
for commands. The player chooses a command for letters to enhance his
ability
for letters, and a command for a telephone to propose a date with
a girl student.
(ii) Progress (Middle)
(1) With the
goal of winning a confession of love from a s girl student he adores, the
player proceeds to spend his three years' high school life in behaving
as follows:
(a) He plays
in cycles of one week; during week days he chooses from among the commands
for studies (letters, science, arts), sports, club activities, dandyism,
recreation, relaxation so that he may enhance his own ability enough to
be a good match for the girl student he adores. As a result the open
parameters
set at the start will rise (but the parameter for stress will fall by
choosing
a command for relaxation, and other parameters will also change. For
instance,
if the command for studies is chosen, the parameters for studies will rise,
but the one for stress will also rise. If the command for relaxation is
chosen, the one for stress will fall, and the one for figure will also
fall.
(b) Also in cycles
of one week, he chooses on holidays a command for a telephone for having
or proposing a date or for a command in the (a) group. When a date
is chosen, he may have occasion to be spoken to and answer the girl student
or otherwise to decide how to to cat, his choice then will affect her
estimation
of him (values of undisclosed parameters).
Girl students' estimation will be affected by his regular
attendance
at school events as well (such as examinations, school sports, cultural
festivals). This will also happen depending what the hero chooses to do
on occasions such as when he falls into company with a girl student on
the way back from school on a week day or when he gives her a birthday
present.
(c) He is not always successful in the choice of commands. He
sometimes fails. He is not always in good health; he sometimes falls sick
or gets injured. He may become neurotic or may have an accident. All these
happenings affect his parameters.
(2) The instant game is supposed to last three years, so that
its long play time has many breaks, so that the player may enjoy one game
for several days. The state of the game when it is suspended can be
preserved
in numerical values. Preservation is made possible by the save command
on a memory card available on the market (different from the instant memory
cards). By reading in the numerical values so preserved on the memory card,
the suspended game can be continued from the point where it was suspended.
The player can always recognize his open parameters because they
appear on the upper part of the screen as "the status of the player." As
to the girl students' estimation of him (his undisclosed parameters), he
can get information by calling his good friend Yoshio Saotome (brother
of Yumi Saotome. He is so designed as to know all about her fellow girl
students). So he has means of knowing their estimation (in seven grades)
including whether or not his target girl is now cross with him.
(iii) End
At the end of
playing as in (ii), it is decided whether he can win a confession of love
from the girl student he adores. Relevant factors considered are
(a) whether his open parameters have attained the numerical values that
deserve the target girl, (b) Whether the frequency and quality of his dates
with her, his attitudes to school events (examinations, school sports,
cultural festivals), health condition (neurosis, medical checks), his
company
with her on the way back from school, and presents he gave her, and other
girl students' estimation of him (undisclosed parameters) have attained
certain numerical values. If all these factors are considered altogether,
and found to meet the requirements (a) and (b), he can close the game with
a happy ending by winning a confession of love, and if not, he will go
home with a good friend.
3 The framework of the story in the instant game soft
As seen above, the instant game soft is framed in terms of time
to start on the day of entrance into the high school (April 4, 1995), go
through various happenings during three years and end on the day of
graduation
(March 1, 1998), and the story is designed to develop multifariously within
that temporal framework. For the nine elements of the ability of
the player (the hero) nine initial numerical values are set, together with
commands that he can choose on week days and holidays. Those commands
are set in such a manner that choice of a command results in the rise or
fall of a parameter which, however, is linked with the reverse movement
of another parameter (doesn't this smell of the lamp?). Out of such
features he gets fun and difficulty in the game management (A 22).
In the instant game soft the eleven girl students appear before
the hero on the screen, and it depends on the numerical values he has
attained
which one of them he can get a confession of love from. For example, in
the case of the prime target girl Shiori Fujisaski, (a) as to the nine
parameters, 130 or more in letters, science, arts, sports, 120 or more
in sundries, 100 in figure, fight, 50 or less in stress, (b) as to the
undisclosed parameters, 80 or more in heart's throbbing, 50 or more in
friendliness, 50 or less in heartbreak, and not less than 8 dates.
The player, therefore, starting with commonplace initial ability values,
has to manage the game without losing a balance between rising and falling
parameters with the object of bringing those values up to the highest level
of credit for a high school boy at once brilliant in studies and sports
and handsome in figure.
If some other girl student is chosen as a target, the hero must
attain the open and undisclosed parameters set according to her specific
character.
Thus in the instant game
soft the story lays main emphasis on the endeavors of the hero, starting
with initial ability values, tries to improve them with the goal of winning
a confession of the prime target girl student, encountering during that
process with other girl students depending upon how much credit he has
earned (A21, 22, 30).
4 The Structure of the instant game soft
In the instant game soft, which contains a simulation game, images
are presented on the monitor, sounds are emitted from the speaker, scenes
appear as the game develops according to the program stored on a CD-ROM
in response to the commands chosen by the player. All successive
scenes proceed from beginning to end solely as the player chooses. It is
the function of the computer program to read the contents of commands
selected
by the player, and to present scenes accordingly. In so executing those
commands, it moves up or down the nine open and three undisclosed parameters
as originally designed in it (such movement cannot be specified, because
they depend on random sampling). Not only images (characters and
background) and sounds in each scene, but also figuration of characters
and conditions for choosing commands are all stored on a CD-ROM as data.
5 The instant game soft as a work
(i) As stated above, since the instant game soft
consists of a program and data, the essential elements of a simulating
game such as images and sounds are all stored as data.
A "film work" under the Copyright Act, §10 (1) #7, includes a
work expressed by a process producing visual or audio-visual effects
analogous
to those of a film and fixed in some material (§2 (3)). The instant game
soft, by using a reproduction machine, can be made to develop a certain
story on the monitor by presenting changing images (if not continuous)
in each scene and making characters speak words befitting to the scene.
Therefore, the instant game soft is a "film" work" within the meaning of
the Act (The program and data of the instant game soft are all stored on
a CD-ROM. We cannot deny that it also meets the requirement that it be
"fixed in some material").
The program of the instant game soft can also be deemed to include
a combination of instructions to the computer (gist of the whole argument).
It may also qualify as a "program work" under the Copyright Act, §10 (1)
#9.
In the instant game soft, images and sounds preserved in the data
are read and reproduced by the program, and then the game can be developed
only by the independent participation of the player. Because of this
the instant game soft is not so much a work in which a "film work" and
a "program work" simply coexist, as a work of complex character into which
both works merge, which we may properly characterize as "game images."
(ii) The instant game soft is so programmed that
girl students who appear on the monitor and the hero (the player) who does
no appear, but acts the key role in the development of the game cultivate
a mutual friendship during their three years' high school life, and that
the hero endeavors to improve his ability in studies, sports, figure and
the like towards the goal of getting a confession of love from a girl
student.
As a consequence, the figure and expression of the girl students
can be seen on the screen of the monitor, while that is impossible with
the hero, but he is always spoken to by the girls on the screen. The story
is developed by their conversation and association. Although the girls'
speech and behavior toward him are fixed and limited to several patterns,
the hero has variable initial ability values. Assigned to him right
after his high school entrance, those values, are designed, as are also
the values of the undisclosed parameters, to vary diversely according as
he chooses commands on weekdays and holidays in an effort to enhance his
ability values.
As seen above, the girl students who appear on the monitor get
their character formed through their respective figure and expression
projected
on the screen, while the hero, instead of such character formation, gets
his character configuration right after his entrance as, a common medium
high school boy expressed in terms of initial ability values: 100 in
physical
condition, 40 in letters, 40 in science, 40 in arts, 40 in sports, 32 in
sundries, 60 in figure, 5 in fight, 0 in stress.
The characters such as Shiori Fujisaki and other girl students,
therefore, should properly be protected by copyright; so should also the
hero, for he is a character whose figuration is expressed in terms of
ability
values, and as such he is a major constituent element of the instant work.
(iii) Plaintiff contends that the
"characteristic
contents of the instant game soft," i. e., "game balance" and
"interactiveness,"
should be placed within the scope of copyright protection as works.
(1) Plaintiff argues that this
"game balance" is the very key factor that determines the fun of the game
soft, that it is a device in the designers' expression as to the progress
and structure of the game, and that it is a form of inner expression in
the sense that it is a device in expression not directly visible to the
eye.
In rebutting this argument,
defendant
asserts that plaintiff totally overlooks the specific character,
classification
and contents of a simulation game work. What plaintiff calls "predetermined
latitude in game development" cannot be objectively recognized by a third
person, so that it is not susceptible of copyright protection,
Plaintiff's
contention is unreasonable in that it goes so far as to seek protection
for mere save data incidentally generated in the execution of a program.
(2) Plaintiff seems to mean by "game
balance" that in the instant game soft which is so programmed as to link
the rise of values of certain open parameters with the fall of rise or
fall of the values of other parameters, the player has to choose commands
always mindful of a balance among the values of studies, sports, etc. as
well as linkage between open and undisclosed parameters, or that the
development
of the game is programmed in such a manner.
Such balance is realized by the program of the instant game soft
which reads the contents of commands chosen by the player and adds to the
hero's parameter values certain predetermined plus/minus values in
accordance
with instructions so given.
Such "game balance" in itself is a design of the game, an idea
or design of the game which the designers of the instant game had when
they formulated diverse story developments of the game from beginning to
end and made the player's command choice complicated and difficult so that
his intellectual activities might be fun. Admitting it is
intellectually
the most painstaking part of the work to its designers, it is not
in itself a work within the meaning of the Copyright Act and is not a proper
object of its protection as such. In the instant case a proper object of
copy right protection as a product in which thoughts or sentiments are
expressed in a creative way is the story (a virtual love affair) (designed
to be multifarious but limited) and its images stored in the instant game
soft.
What plaintiff calls
"interactiveness"
is not quite a clear concept. It asserts that it refers to the aspect
of the game that the game does not progress without the player's
participation,
and that the concrete progress and development by his choice is dialogic
and bilateral. But granting the game has such a character, the progress
and development of the game is nothing but selections from the contents
stored in advance in the program or data. Such "interactiveness" is no
more than an abstract technical concept of the way of operation peculiar
to a simulation game, or of relations between operation and response.
"Interactiveness" in itself cannot be characterized as a creative expression
of thoughts or sentiments of its designers as to the development of the
game and its characters.
(3) However, the program of the instant
game soft is structured in such a way that, on the basis of certain ability
values of the hero originally set and fixed, the player develops the story
by creatively varying and cumulating such values of the ability elements
corresponding to the actions (commands) he chooses. Such save data generated
and accumulated by the player, therefore, are not mere numerical values
independent and clearly distinguishable from the program, but its
inseparable
elements for varying the values originally set by its maker
and expressing game development accordingly.
Because variation of the ability parameter values in response
to chosen commands, to say nothing of original setting of such values,
is thus an essential constituent element of the instant game soft, its
modification and mutilation should properly be condemned as a modification
of the contents of its expression and an impairment of the right to preserve
the integrity of the instant game soft work.
II Modification by the instant memory cards
1 Contents of the instant memory cards
Blocks (or data memory units) 1--13 of the instant memory cards
imported and sold in Japan have in store nine parameters for use as data
in the instant game soft. A player, in executing the program of the instant
game soft, can use the data in any block of the memory cards he
chooses
(the block relating to the girl student whose confession of love he wishes
to get) by reading them into the hardware of the game machine.
2 Change of the game development by using the instant memory
cards
Evidence (A6 (1-2), KA1-3) and the gist of the whole argument
show that the game development of the instant game soft is changed by the
use of the instant memory cards as follows:
(i) If the data in blocks l -- 11 of the instant memory cards
are used, the original values of the nine parameters set at 100 in physical
condition, 40 in letters, 40 in science, 40 in arts, 40 in sports, 32 in
sundries, 60 in figure, 5 in fight, and 0 in stress as of April 5, 1995,
the day of high school entrance are changed in less than a week after that,
or on April 9, 1995, for instance, to 999 in all parameters except 0 in
stress in block l giving the status for playing with Shiori Fujisaki as
a target, or to 99 in physical condition, 0 in letters, 999 in science,
0 in arts, 0 in sports, 0 in sundries, 999 in figure, 0 in fight, 0 in
stress in block 2 giving the status for playing with Yuna Himoo as a target.
(ii) If the data in block 12 -- 13 of the instant memory cards
are used, the starting time of the game jumps to February 22, 1998 (block
12) or February 25, 1998 (block 13) just before the graduation (March l,
1998), and the nine parameters at that time are, in block 12 giving the
data "just before the ending" relative to Rei Ijuin, 999 in physical
condition,
998 in letters, 995 in science, 998 in arts, 998 in sports, 873 in sundries,
849 in figure, 973 in fight, 0 in stress, and in block 13 giving the data
"just before the ending" relative to Shiori Fujisaki 999 in physical
condition,
998 in letters, 998 in science, 998 in arts, 997 in sports, 894 in sundries,
868 in figure, 987 in fight, 0 in stress. In addition, those blocks have
in store data helpful in attaining required numerical values of undisclosed
parameters with regard to those things the player need to know to win a
confession of love from such a prime target girl students as Rei Ijuin
or Shiori Fujisaki, such as the frequency and quality of dates, attitudes
toward school events (examinations, school sports, cultural festivals etc.),
health condition (neurosis, medical checks), company with a girl student
on the way back from school, presents to her, other girl students'
evaluation.
If he plays properly during the last one week, he is sure to win a
confession
of love of the target girl student he aspires to, be it Rei Ijuin or Shiori
Fujisaki, although such data are not shown on the screen and invisible
to the eye).
(iii) As stated above, however, in the proper game development
of the instant game soft, the originally set values are low, and besides
the nine parameters are designed to make link motions such as the rise
of one parameter linked with the fall of another. As a result, even if
the player spends all weekdays and holidays in choosing the best commands
with success in all of them, and always keeps in good health and free from
injury, neurosis or any other disease, thereby succeeding in lifting the
chosen parameters most efficiently, the utmost he can do will be to bring
a small number of specific parameters only up to the highest value of 999,
while he fails in bringing many others to a figure over 900 or even close
to 900 at the same time (A30, KA6).
Bringing most of the nine parameters to high values is only
possible
when, as stated in (i) and (ii), external data stored in the instant memory
cards are written into the RAM of the game machine. The player is never
able to achieve it by his own independent operation.
3 Change of the game development and modification of the
instant game soft
(i) Variation of character figuration and the consequent
modification
of the "story"
As already stated, the character figuration
of the hero (the player) as well as that of Shiori Fujisaki and the other
girl students is an element that plays an important part in the development
of the story.
If the instant memory cards are used,
for instance, credit the hero with such high values as 999 in all the open
parameters except 0 in stress right after high school entrance in block
l giving the status for playing with Shiori Fujisaki as the target, and,
as to blocks 12 and 13, such high values as 999 in physical
constitution,
998 in letters, 995 in science, 998 in arts, 998 in sports, 873 in sundries,
849 in figure, 973 in fight, 0 in stress as data relative to Rei Ijuin
right after high school entrance (block 12), and 999 in physical condition,
998 in letters, 998 in science, 998 in arts, 997 in sports, 894 in sundries.
868 in figure, 987 in fight, 0 in stress as data relative to Shiori Fujisaki
(block 13|. The image represented by such high values is one of a
high school boy of outstanding ability, preeminent in scholarship and
sportsmanship,
highly talented as an artist, and superbly handsome,
The image of the hero in the instant game soft in the
contemplation
of its maker is a common and ordinary high school boy right after entrance,
who makes the utmost efforts and
by a certain point of time before graduation develops an ability
sufficient
to attain high values only in a small number of specific fields. There
is no denying, therefore, that such an image of the hero is modified
by the use of the instant memory cards.
Furthermore in the instant game soft as stated above, the hero,
on the basis of the originally set low ability values, chooses commands
so as to attain the highest values possible at each point of time, and
goes on developing the story under this limitation. Replacement of those
ability values of the hero by far higher values at the very start, as in
the change of "the time for the first encounter with a girl student,"
renders
ineffective the values of commands inputted by the player in the course
of story development and causes such story development to go beyond the
originally set bounds. Thus modification of the hero's image does lead
in its turn to the modification of the story.
(ii) Change of "the time for the first encounter with a
girl student"
The instant game soft is designed in
such a way that the story starts with low ability values of the hero and
that a girl student appears only when his open parameters attain certain
values that vary with the girl students. So the story development
may be said to suppose that no girl student appears until his ability
attains
certain values.
As against this, blocks l -- 11 of the instant memory cards
replaces
the hero's ability values right after high school entrance by far higher
values, with the result that girl students make an untimely appearance
right after the start. In this point there is a glaring modification of
the story development.
(iii) Cutting the "story"
Plaintiff contends that
blocks 12 -- 13 almost entirely cut the "story" that is supposed to be
developed throughout three years' high school life, and abruptly start
it a week before graduation, and that it is nothing short of a serious
modification of the "story," which is the essential contents of the game
soft in the contemplation of its maker.
It is plaintiff's contention that striking of the whole process
in which the hero, starting with the original values set right after high
school entrance, gradually grows during a span of three years amounts to
a modification of the story.
But replacement of the hero's ability values by high values beyond
proper bounds only a week before graduation by means of blocks 12 --13
is none other than a modification of character figuration, which brings
with it a modification of later story development just as is the case with
blocks 1 --11.
Therefore, what is modified is the part of later development
that follows replacement of values, not the part of development that
precedes
it.
(iv) Plaintiff also complains of modification of "game balance"
and "interactiveness," but these are aspects of the simulation game as
it is designed, not works in themselves as stated above. Even granting
that these have been modified, such modification in itself does not
constitute
an infringement of copyright. Plaintiff's argument is untenable.
(v) Defendant argues that, since in a simulation game no story
is developed until the player participates, and no latitude in development
is fixed, nor can it be recognized by a third person, replacement of the
hero's ability values by higher values by means of the instant memory cards
does not modify the story of the instant game soft.
Defendant is indeed right in arguing that the instant game soft
is to be distinguished from an ordinary verbal work or a film work with
a fixed story within it, in that no game is developed until the player
participates, or the story is multifariously developed according to his
choice.
But as stated above, since
in the instant game soft the story starts on the basis of specified number
of characters (mainly girl students) and conditions for their appearance
on the screen, and also of the specified original ability values of the
hero, the story certainly has a fixed beginning, and afterwards is
concretely
developed according to variation of the hero's ability values and of the
undisclosed parameters related to girl students. Admitting that the story
allows some latitude, there is no denying that it is none the less developed
within certain scope under certain conditions.
Such being the case, replacement of the hero's ability values
by high values beyond proper bounds, at whatever point of time it may be
made during high school life, will automatically change the conditions
of development accordingly and present a peculiar story development
independent
of the original conditions. This certainly amounts to a modification of
the story.
Because playing the instant game
soft takes many hours, a player is allowed to use memory cards obtainable
on the market for the purpose of temporarily preserving game data
accumulated
by his game operation, and to write such data preserved in the memory cards
into the play station to continue the suspended game.
But such data preserved in the memory cards obtainable on the
market are limited to results of game development within proper bounds
as contemplated by the maker of the instant game soft, i.e., data generated
by game development from the start. It is not allowed to write in
data not generated by the instant game, or to omit data generated by game
operation from the start.
Allowed use of memory cards obtainable on the market is limited
as described above, so that it does not follow that the instant memory
cards cross the line of permissibility.
It may be added that
the latitude in game development as contemplated by the game maker, even
it is not objectively recognizable to a third person, does not prevent
copyright from attaching to the instant game soft, or justify the production
of the instant memory cards. Nor does it make sufficient reason to make
them permissible that their use keeps the program going in good condition
without coming to a standstill or going suddenly out of control.
Additionally, although the
program of the instant game soft has no built-in check routine against
reading in values higher than a certain figure, that does not affect the
validity of the right to preserve the integrity of the instant work.
III Infringer upon the instant copyright
To execute the program of the instant game soft using the instant
game cards constitutes an infringement of the right to preserve the
integrity
of the instant game soft as a work, so that an individual player is no
doubt a performer of such action. Evidently, however, the maker of
the instant memory cards is an active and intending contributor to such
action, and so with regard to the modification of the instant game soft
through the use of the instant memory cards, he is an infringer through
those players upon the right to preserve the integrity of the instant work
and he is liable for his customers' use of the instant memory cards, because
we may presume they have played the instant game using the instant memory
cards. Defendant who imported and sold such cards cannot escape liability
for violating the integrity right under Copyright Act, §113 (1) #1, #2.
IV Damage sustained by plaintiff
Defendant began about December 1995 to import the instant memory
cards and sell them in Japan (an undisputed fact). It is shown by evidence
(A8, 9 (1)) that defendant imported a total of 700 units (\1260 per unit)
and actually sold 522 units(\2980 per unit), but because the instant memory
cards proved partly unworkable, it soon stopped import and sale, and
abandoned
what was left in stock.
It is our finding as stated above that the instant memory cards
were instrumental in violating plaintiff's right to preserve the integrity
of their work. All circumstances taken into consideration, such as the
total number of sold units, the profit from such sale, the contents and
nature of the instant memory cards, the mode of violation etc., the damage
may properly estimated at \1,000,000.
It may be added that in view of the substance and degree of the
violation among others, we do not find it necessary to order an a apology
to be published in newspapers as a measure to restore plaintiff's
reputation.
With regard to the infringed right of reproduction of the instant
game soft we quote that part of the decision of the court below which deals
with the infringed right of reproduction (p. ll., line 3 -- p.12, line
2, p. 58, line 9 -- p. 60, line 7).
Pt 4 Conclusion
Hence it follows that appellee by reason of its infringement
of the right to preserve the integrity of the instant game soft and of
the right of its reproduction is liable to pay \1,146,000
plus an interest of 5 per cent per annum from December 27, 1996 to
the day of full payment, so that appellant is entitled to recover within
this limit.
Accordingly, the court decides as in the formal judgment upon
modifying the judgment of the court below.
(Oral proceedings
closed on December 16, 1998)
Osaka High Court, Civil Bench 8
Presiding Judge Judge Shigeo KOBAYASHI
Judge Takuo OBARA
Judge Yozo YAMADA
*
*
*
The above
is the original.
April 27. 1999
Osaka High Court, Civil Bench 8
Clerk of the Court Nobuyuki HIRAI