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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.


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