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Stevens v. Sony Decided in AU: Sony Loses |
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Wednesday, October 05 2005 @ 11:40 PM EDT
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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.
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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'.
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The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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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.
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The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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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 | # ]
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- Stevens v. Sony--Paging All Groklawyers! - Authored by: Weeble on Thursday, October 06 2005 @ 01:06 AM EDT
- Stevens v. Sony Decided in AU: Mod Chips Are Not "Technological Protection Measures" - Authored by: Anonymous on Thursday, October 06 2005 @ 01:13 AM EDT
- Celeryon? - Authored by: Cyberdog on Thursday, October 06 2005 @ 07:39 AM EDT
- Celeryon? - Authored by: Jude on Thursday, October 06 2005 @ 08:51 AM EDT
- "budget" chips - Authored by: Anonymous on Thursday, October 06 2005 @ 10:31 AM EDT
- "budget" chips - Authored by: Anonymous on Thursday, October 06 2005 @ 10:52 AM EDT
- "budget" chips - Authored by: Jude on Thursday, October 06 2005 @ 11:46 AM EDT
- "budget" chips - Authored by: Anonymous on Thursday, October 06 2005 @ 05:31 PM EDT
- Celeryon? - Authored by: Weeble on Thursday, October 06 2005 @ 04:33 PM EDT
- ACCC support and lack thereof - Authored by: Anonymous on Thursday, October 06 2005 @ 09:14 AM EDT
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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 | # ]
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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 | # ]
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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
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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 | # ]
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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 | # ]
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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.
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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 | # ]
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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
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