Last year, Eddy Stevens was sued by Sony for selling modchips which, among other things, allowed Playstations to play burnt games. Yesterday, the Full Court of the Federal Court unanimously reversed the decision of the trial judge (Sackville J). The SMH reports that this decision has led to an X-Box modchip manufacturer to suspend its sales.
A cursory skim of French J’s judgment in the case (Kabushiki Kaisha Sony Computer Entertainment v Stevens) reveals that the primary issue was whether or not Sony’s copy protection measures constituted a “technological prevention measure” under s 10(1) of the Copyright Act 1968. Under s 116A(5) of the Act, a person selling devices aimed at circumventing such prevention measures can be sued. Playstation games are copyrighted by having an encrypted code written into a part of the disc which can’t be burnt onto by normal burners. The Boot ROM then checks discs for this code. Together, the code and the Boot ROM was purported by Sony to be a “technological prevention measure” (TPM). The trial judge held that:
the focus of the definition of “technological protection measure” was on a technological device or product designed to bring about a specified result, namely preventing or inhibiting the infringement of copyright in a work, by a particular means. His Honour did not think the definition was concerned with devices or products that did not, by their operations, prevent or curtail specific acts infringing or facilitating the infringement of copyright in a work, but which merely had a general deterrent or discouraging effect on those who might be contemplating infringing copyright in a class of works, for example, by making unlawful copies of a CD-ROM. (at para 13)
In other words, Sony’s copy protection was not a TPM because it merely served to deter or discourage game copying. The Full Court disagreed, and after engaging in a bout of statutory interpretation, preferred a purposive approach to interpreting the term: paragraphs 16-20. This broader definition meant that Sony’s codes and Boot ROM did form a TPM, and so Stevens lost the case. He still has the option of appealing to the High Court.
As much as I hate how exorbitant console games are (partially the reason why I don’t a console), I would agree with the Full Bench’s interpretation in this case. It is fairly clear that the intention of the Copyright Act would be to encompass copy protection measures such as that implemented by Sony. It’s obvious to any computer gamer that what Sony has done to prevent copying their games constitutes a TPM. Nonetheless, this reminds me of how they brought out that CD copy protection technology a while ago that could be bypassed by scribbling around the CD’s outer rim with a texta or permanent marker. The Courts wouldn’t outlaw the sale of textas (I’d imagine that this would be because their predominant use is not for copyright circumvention), but it does raise interesting questions about what might be considered a circumvention device. What if the mod chip’s main purpose is to bypass the DVD region locking (I think that’s still legal)?
(Thanks Shish for passing on the news.)