Practically speaking, if a defendant's final product is infringing, the defendant has much bigger problems than whether copyright infringement was committed in an intermediate step. The Sega inquiry as to whether the defendant decompiled the source code in order to determine which elements of the copyrighted program were protectable would always be answered in the affirmative, so both courts would always come to the same conclusion. A major question, however, is how the district courts and other circuits will interpret Connectix. Although the language clearly supports a finding that all noninfringing final works are per se transformative, many practitioners will surely debate this issue. Once the debate moves from whether a final work is infringing to whether a final work is transformative, the general rule that disassembly is a fair use as a matter of law will be diluted.
Consumers usually buy several game cartridges, even in the same genre.
The copyrightable elements in each game dictate their market success, and none of these elements was infringed by Accolade. The intermediate copies merely permitted Accolade to become a market competitor, something Sega could not legally prevent. After considering these factors, the court found that the effect on the potential market was negligible. The analysis in Connectix was more generic. Citing Acuff-Rose, the court stated that transformative works are not likely to have any adverse impact on the copyright holder's potential market.