|
TECHNICAL BACKGROUND
A “mod chip” is an aftermarket upgrade applied to a gaming console. The chip disables certain security features of the console, allowing a user to load and access otherwise restricted software - such as pirated software.
Playstation’s anti-piracy solution is based around a “lock and key” approach. A sanctioned Playstation CD includes an embedded “key” that is not duplicable using conventional CD burning equipment. A Playstation console includes an embedded “lock” requiring the presence of an appropriate embedded key prior to loading information on a CD. This prevents the loading of software pirated using conventional CD burning equipment. A similar anti-piracy solution was implemented for the Playstation 2.
Put simply, a mod chip circumvents the lock such that a key is not required. This allows the loading and operation of pirated software.
AUSTRALIAN LAW
Relatively recent amendments to Australian copyright law extend the notion of infringement to cover the manufacture or sale of hardware or software designed to avoid copyright protection measures.
The law provides that it is an infringement of copyright to make or sell a “circumvention device”. This includes a device or computer program for facilitating circumvention of a measure designed to prevent or inhibit copyright infringement.
THE HIGH COURT’S DECISION
The High Court’s primary task was to determine whether the Playstation anti-piracy solution was actually designed to prevent or inhibit copyright infringement – an issue on which the lower courts were at odds.
It was found that Sony’s anti-piracy solution did not actually make it any more difficult to produce infringing copies of Playstation software. The solution only served to restrict the use of that software in a Playstation console. That being the case, a mod chip could not be regarded as a circumvention device. The sale of such chips is therefore not an infringement of copyright.
END GAME
A relatively strict literal interpretation of the law appears to have been applied in this case - which is unfortunate in a practical sense. The law relating to circumvention devices was created to assist in the reduction of piracy. Widespread availability of mod chips increases the market for pirated Playstation software and, following this decision, one can expect the pirate market to flourish.
The reasoning applied by the Court is difficult to fault – the law was applied as it is presently written. It is likely that copyright law will be subject to a relatively urgent review in light of this decision.
|
