27 September 2002

Edward Alder

For some years now the ‘copyright community’ has taken a two pronged approach to piracy by fighting on a legal front those individuals who deal in unlawful works and, outsmarting them at their own game, using technology to control the use of unlawful copies.

The music industry generally failed in attempts in the 1970s to tackle the home taping ‘problem’ by suing machine manufacturers and proposing levies on blank tapes. The difficulty then was that in the Luddite tradition they fought the copying technology itself. Given the circumstances, that was never going to work.

Copyright owners in the digital age have had more success by deploying anti-piracy technology and, significantly, in persuading Governments that the anti-piracy technology should itself be protected by law against circumvention.

Two 1996 WIPO treaties require signatory states to prohibit by law circumvention of technology that protects copyright. This has resulted in the amendment of the copyright legislation in Australia and the UK and the enactment of the US’s Digital Millennium Copyright Act.

The Australian, Hong Kong and UK legislation now makes it equivalent to infringement of copyright to make, import, sell or advertise any device specifically designed to circumvent copy protection measures. This is aimed at so called “mod chips” that back room operators install in brand name hardware products. The legislation also prohibits publishing information intended to enable others to circumvent such copy protection measures. This is aimed at so called “cracking” code such as DeCSS which is available on the Internet and enables encoded DVDs to be played on PCs.

Much like the region coding scheme for DVDs, Sony markets PlayStation consoles and games according to three geographic regions. Games sold in each region come with an embedded access code for that region. Consoles purchased in one region contain technology that limits them to playing games containing the access code for their region. However, it is fairly easy to “chip” PlayStation consoles so as to override the region technology and enable them to play games from any region.

Sony has had mixed luck in its attempts to enforce the anti-circumvention legislation. In February this year Sony obtained an injunction in the UK against Channel Technology restraining the import of “Messiah” mod chips. Sony was able to persuade the court that one of the functions of the access codes in PlayStation games was to prevent pirate copies of the games, called “Hong Kong Silvers” in England, being made. Sony argued that mod chips in consoles overrode out-of-region codes and the absence of codes on pirate games and therefore circumvented the copy protection.

Channel Technology argued that the technology in the consoles – not the codes - was not, or was not solely, for “copy protection” because it had uses other than preventing unlawful copying, for example it restricted lawful back ups being played. They argued that the mod chips were therefore not solely for circumventing unlawful copying. The court had no difficulty rejecting this and found because mod chips circumvented the codes they were prohibited copy protection circumvention devices.

Sony got just the opposite result last month in Australia. Sony again sought an injunction to restrain a business from selling mod chips for PlayStations. The Australian judge accepted, though there was scant evidence, that one of the purposes of the region scheme was to deter people from making infringing copies of Sony games, called “Bali Silvers” in Australia. But he said that the legislation only prohibits dealing in devices that circumvent measures that physically prevent an infringement of copyright in games, that is prevent copying.

He went on to look in much more detail than the UK judge had at whether using a chipped console actually involved copying a game. The UK judge had resolved in two words (“of course”) the question of whether loading a game into the RAM of a console was “copying”. The Australian judge produced 11 pages of reasoning to reach the conclusion that it did not.

Because simply playing an out of region game on a “chipped” console would not involve copying the game, the region limiting devices in the consoles could not be said to be there to prevent copying, and therefore the mod chips do not circumvent copy protection measures.

Sony’s tactics may have been a problem. In a post trial filing they urged the judge to adopt the approach that had worked in England of looking at the codes rather than the console technology as the copy protection measure, but the judge declined to do that.

The Australian Competition and Consumer Commission intervened in the case to support the defendant who had no lawyers acting for him, and was clearly delighted with the outcome. After the judgment the Chairman said “Australian consumers can now enjoy games legitimately bought overseas, as well as authorised backup copies, by legally having their games consoles chipped”.

Should the Hong Kong legislation be tested in court in similar circumstances the Australian case may present a major obstacle for the equipment manufactures.