Data Cash Systems / Staid Inc.

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Data Cash hired a programming consultant to develop a computer program for use in a hand-held calculator chess game known as "CompuChess." The program was stored as object code in a ROM incorporated into Data Cash's product. About a year after Data Cash began to market CompuChess, JS&A entered the market with an almost identical product.

Taking advantage of recent technological advances, JS&A apparently unloaded the ROM of Data Cash's device, so that, in effect, the object code was directly transferred to the ROM of the JS&A device.

In June of 1978, it came to the attention of plaintiff that a Hong Kong company claimed to be licensed to sell CompuChess at a lower price. Plaintiff learned from General Instruments that it was manufacturing a ROM for another chess game. At plaintiff's request, General Instruments tested the new ROM and found it to be identical to plaintiff's. Upon further inquiry, plaintiff learned that the other chess game was using a ROM made by General Instruments and was being manufactured by Novag Industries of Hong Kong for JS&A Industries to be marketed as JS&A Computer Chess. Plaintiff's attempts followed to prevent the manufacture and marketing of JS&A Computer Chess. These efforts were unsuccessful. In late 1978, JS&A began marketing its computer chess. Shortly thereafter, plaintiff filed this suit for copyright infringement and unfair competition. Defendants moved for summary judgment on both counts of plaintiff's petition on April 13, 1979. The district court granted the motion for summary judgment for defendants on the grounds that the ROM was not a "copy" under the copyright law so that reproduction of the ROM could not be an infringement. The parties had neither briefed nor argued that issue and neither side on appeal defends the district court's position, so we do not consider it further. The parties focused their arguments in the district court and on appeal to whether the program had entered the public domain prior to the duplication, such that plaintiff's copyright had been forfeited. The prevailing party in the lower court may rely on any ground that supports the decision. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Moraine Products v. ICI America, Inc., 538 F.2d 134, 149 (7th Cir.), cert. denied, 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310 (1976). Since we find the forfeiture issue dispositive, we do not reach the merits of the district court's decision.

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