decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Stevens v. Sony Decided in AU: Sony Loses
Wednesday, October 05 2005 @ 11:40 PM EDT

Brendan Scott of Open Source Law, the lawyer who keeps Groklaw up-to-date on legal events in Australia, sent me some news. Here's his email, which he gave me permission to share with you:
I'm sure you'll be interested in this. The High Court of Australia (Australia's equivalent of the US Supreme Court) has issued a press release in the Sony v Stevens case. The case relates to Mr. Steven's sale of "mod chips" for the Sony Playstation a couple of years ago. The case is relevant for its interpretation of the term "technological protection measure". I also believe that this is the first time DMCA provisions have been considered by a court of final appeal anywhere in the world.

The Federal Court at first instance found that the chips in Sony Playstations which prevent you from playing legally purchased US-sourced games were not technological protection measures because they did not inhibit the infringement of copyright. The decision was reversed on appeal by the Full Court, arguing that the chips had a general deterrent function in respect of unauthorised copying. The High Court has considered the case and has unanimously concluded that the chips are not technological protection measures - reversing the decision of the Full Court affirming the decision of the court at first instance.

Of course, if they're not technological protection measures, then their circumvention doesn't fall foul of the local DMCA equivalents. The court at first instance found that, in reality, these chips were region coding devices, a view which has a high common sense index.

The media release is here: http://www.highcourt.gov.au/media/Stevens.pdf

The text of the judgment is here.

It's technically called Stevens v. Sony, in that Stevens brought the appeal, so he is the appellant. But it started in the lower courts as Sony v. Stevens, so everyone got used to calling it that. I'm just explaining, so it doesn't throw you when you see it called Stevens v. Sony in the press release and the judgment and maybe send me email about how Groklaw made a mistake.

: )

You can search on Google either way and you will find oodles of information. It's a major case everyone has been following closely.

Here's the press release:

******************************

HIGH COURT OF AUSTRALIA

Public Information Officer

6 October 2005

EDDY STEVENS v KABUSHIKI KAISHA SONY COMPUTER ENTERTAINMENT, SONY

COMPUTER ENTERTAINMENT EUROPE LIMITED AND SONY COMPUTER

ENTERTAINMENT AUSTRALIA PTY LIMITED

The High Court of Australia today allowed an appeal against a finding that Mr Stevens’s modifications to Sony PlayStation consoles to allow unauthorised copies of games to be played were illegal.

With effect from 4 March 2001, the Copyright Amendment (Digital Agenda) Act introduced provisions relating to “circumvention devices” into the Copyright Act. The appeal concerned the meaning of that term.

The Sony companies manufactured and distributed both PlayStation consoles for playing computer games on television sets and the computer games on CD-ROMs. Sony owned the copyright in both the hardware and the software. Each CD contains an access code and the circuit boards of the PlayStation consoles contain a chip described as a boot ROM. An unauthorised copy of a PlayStation CD does not replicate the access code so the boot ROM of the console denies it access so that the game cannot be played. Sony claimed that the access code and boot ROM, either separately or together, constituted a “technological protection measure”, as defined in section 10(1) of the Copyright Act. Section 116A of the Copyright Act gives an owner of copyright in an item protected by a “technological protection measure” a right of action against someone who makes or sells “circumvention devices”, devices capable of overcoming the protection measure.

On two occasions in 2001, after the Amendment Act took effect, Mr Stevens sold unauthorised copies of the PlayStation games Croc 2, Medi Evil, Motor Races World Tour and Porsche 2000. On three occasions he also sold “mod chips” and installed them in PlayStation consoles to bypass the boot ROM anti-infringement device and allow the copies to be played. These mod chips would constitute “circumvention devices” – and Sony would have a right of action against Mr Stevens – only if Sony’s device was found to be a “technological protection measure”.

In the Federal Court, Justice Ronald Sackville held that they were not such measures, because in order to be a “technological protection measure” a device must be designed to prevent or inhibit copying in breach of copyright. The Full Court of the Federal Court unanimously allowed an appeal by Sony, holding that its device inhibiting infringement by making unauthorised copies unusable was sufficient. A majority of the Full Court did agree with Justice Sackville that when a game is played computer programs are not reproduced in a material form in the Random Access Memory of the console, and a copy of the game fulfilling the definition of “cinematograph film” is not made in RAM. The Court granted Sony a declaration, an injunction and costs and ordered that the question of damages be remitted to Justice Sackville. Mr Stevens appealed to the High Court.

The Court unanimously allowed the appeal. It accepted Justice Sackville’s construction of a “technological protection measure” as a device which denies access to a copyright work or which limits capacity to make copies of a work and thereby prevents or inhibits the undertaking of acts which would infringe copyright. The Court upheld the finding by Justice Sackville and the Full Court majority that computer programs are not reproduced in a material form in RAM and copies of cinematograph films are not made in RAM when games are played.


  


Stevens v. Sony Decided in AU: Sony Loses | 188 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections, please
Authored by: ankylosaurus on Thursday, October 06 2005 @ 12:04 AM EDT
Please make any corrections here. Simple typos can be given a subject line like
'mitsake --> mistake'.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Off-topic here.
Authored by: ankylosaurus on Thursday, October 06 2005 @ 12:08 AM EDT
Please make clickable links as shown in the page where you enter comments, and
ensure you post your message as HTML rather than Plain Old Text.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Stevens v. Sony Decided in AU: Mod Chips Are Not "Technological Protection Measures"
Authored by: starsky on Thursday, October 06 2005 @ 12:39 AM EDT
I have been following this case for some time, and I am so glad the this was
able to reach it's conclusion. In the early parts of the High court appeal,
Stevens was trying to represent himself, with the judges trying to assist him in
attaining free representation. Even though he had no cash it was good to see he
had the courage to appeal without the support of the Australian Competition and
Consumer Commision (ACCC) who had financially supported him in defending the
appeal by Sony to the Federal Court. I was, however, disgusted in the ACCC for
not seeing it through and supporting Stevens in High Court after losing in
Federal Court.

The ACCC supported Stevens in earlier cases and had been publically arguing the
Mod Chips are ok, because they remove region codes, and region codes are
artificial barriers to a consumers right to import games from overseas.

Stevens (and the ACCC) argument "from memory" was that the mod chip
was incidental to the copyright infringement, in that you could copy the
software even if you didn't own a playstation, let alone a mod chip.

So the mod chip itself didn't prevent the copyright infringement.

The federal court had tried to extend the meaning of "TPM" by saying
that something that deterred copying could be considered a technological
prevention measure.

Anyway. I personally wrote to the Senate inquiry on the adoption of the new DMCA
like provisions and cited this case as a classic example of the laws being drawn
to broadly, and the negative impact it could have on consumers.

I am glad the High court has got it right and drawn a line in the sand.

[ Reply to This | # ]

loading into RAM is not copying
Authored by: Anonymous on Thursday, October 06 2005 @ 01:02 AM EDT
this ruleing explicitly states that loading things into RAM does not count as
copying.

this knocks the underpinnings out of much of the sillier theories that allow
copanies to control how people use their software.

[ Reply to This | # ]

Stevens v. Sony Decided in AU: Mod Chips Are Not "Technological Protection Measures"
Authored by: Anonymous on Thursday, October 06 2005 @ 01:22 AM EDT
AS good as the ruling is -- in the longer run it doesnt really matter
The DAMN FTA our government signed with the USA - against the advice of all the
parliamentary studies on the matter I might add - insists that we implement laws
equivalent to the US by Jan 2007.


[ Reply to This | # ]

Consider the point...
Authored by: The Mad Hatter r on Thursday, October 06 2005 @ 06:39 AM EDT


The court decided that the chip is not a technological protection measure
because of how it acts. The chip acts like a TPM module, so therefore it could
be argued that a TPM module is not a copyright protection device.

>Stevens (and the ACCC) argument "from memory" was that
>the mod chip was incidental to the copyright infringement,
>in that you could copy the software even if you didn't
>own a playstation, let alone a mod chip.
>
>So the mod chip itself didn't prevent the copyright
>infringement.
>
>The federal court had tried to extend the meaning of
>"TPM" by saying that something that deterred copying
>could be considered a technological prevention measure.

The point being that a TPM does not prevent copying, therefore reverse
engineering a TPM is not illegal. I can see the meetings happening to discuss
this right now. Part of the appeal of "Trusted Platform Computing" to
the companies who would misuse it is that it gives them more control over the
user.

And if the TPM can be reverse engineered/modified legally then that control
slips away.


---
Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

What about the EU (DVD Regions)?
Authored by: Anonymous on Thursday, October 06 2005 @ 07:33 AM EDT
Could someone bring me up to date on the situation in Lithuania, Estonia, and
Latvia?

These countries were included in DVD Region 5 along with Russia. They have since
become members of the EU; all other members (I think) being Region 2.

I notice that Lithuania, Estonia, and Latvia now seem to be included in Region
2; but what that change means is hard to determine. In the UK, region-locking
seems to have two consequences; firstly, the physical inconvenience of
region-locked DVDs, and secondly, the fact that it is illegal to sell
out-of-region DVDs.

Citizens of Lithuania, Estonia, and Latvia are likely to want Russian language
DVDs (the authorities may have other ideas) as well as DVDs from the West.

Seems like a big muddle. If Russian DVDs are not region-locked (I can think of
no reason why they should be unless the US software they use does it by default)
then the problems seem to go away.

Alan(UK)

[ Reply to This | # ]

Isn't DMCA a local US regulation? Why should AU obey DMCA?
Authored by: Anonymous on Thursday, October 06 2005 @ 09:18 AM EDT
The case relates to Mr. Steven's sale of "mod chips" for the Sony Playstation a couple of years ago. The case is relevant for its interpretation of the term "technological protection measure". I also believe that this is the first time DMCA provisions have been considered by a court of final appeal anywhere in the world.
I am really amused, why australian court should consider DMCA. AFAIK it is just the local US regulation.
Similarly the muslim countries forbid kissing in public places. Are the american courts going to punish US citizens for doing it in US?

[ Reply to This | # ]

Recommended Reading: Kirby J's judgment from para 163ff
Authored by: Anonymous on Thursday, October 06 2005 @ 11:40 AM EDT

As usual (speaking from experience as a current law student), Kirby J's judgment is the most eloquent and well written of the lot.

Highlights:

  • He compares Sony's attempt to divide the world into regions with the popes of old.
  • He talks about the delicate balance that must be struck between the interests of all stakeholders, in the traditional meaning of copyrights, patents and trademarks.
  • He talks about how, if parliament attempts to extend copyright in a way that destroys the social utility of copyrights (ie, if they go too far to favour one of the stakeholders and destroy the balance), then it may be that that piece of legislation cannot legitimately call upon the copyright head of power, and may be vulnerable to a constitutional challenge (this is because the Commonwealth's powers in Australia are not plenary, they consist of a set of strictly enumerated rights). In other words, you can't use the copyright head of power if what you're attempting to do can no longer be justifiably understood to be 'copyright'.
  • He talks about the protection of fundamental rights, and the rights of persons over their property and chattels. He even goes so far as to remind Sony of the betamax case (Sony v Universal) as an example of how the courts will protect copyrights only relative to the rights of the rest of society (the US court allow video recorders because of legitimate uses of the technology - ie, timeshifting; Kirby J is inclined to allow mod-chipping because of legitimate uses of this technology to protect consumer rights - ie, allowing the playback of legitimately purchased copies of region locked games and movies)
  • He talks about the fair dealing provisions in Australia's copyright laws, and how upholding Sony's case would effectively allow Sony to circumvent those fair dealing provisions, thereby giving Sony the ability to enforce a differential pricing scheme that they wouldn't have been able to do under normal copyright law.

Anyway, a beautifully written and highly readable judgment, and he explicitly spells out the policy considerations in play in a way that the other judges don't.

[ Reply to This | # ]

I guess (hope) that this would apply to DeCSS as well...
Authored by: darkonc on Thursday, October 06 2005 @ 02:11 PM EDT
CSS is mostly in there to provide region coding... It seriously does not do much of anything for copy protection, because the real pirates are just going to press bit-copies of the DVDs.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

AU's problem
Authored by: Anonymous on Thursday, October 06 2005 @ 05:42 PM EDT
"The GPL works, and works well, to empower innovation - but also represents
a peaceful implementation of Karl Marx's famous dictum that the state should
take from each individual according to the individual's abilities, and give to
each individual according to that individual's needs. Indeed the GPL doesn't
different in principle (although it's certainly dramatically different in
practice!) from the communist Chinese policy of state confiscation of
intellectual property for state use."

http://blogs.zdnet.com/Murphy/?p=435

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )