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Digital Games Piracy and Paracopyright

12 Apr 2006

The Sony Playstation case is another in a line of computer software cases which the Australian courts have given illiberal decisions based on the “over-engineered” specificity of the Australian Copyright Act.

The case was about the supply of computer chips which could be installed in Playstation consoles to allow consoles to run games CDs (or DVDs) which had been copied from genuine Sony CDs or which had been produced by companies not authorised by Sony. 

Sony’s system for ensuring only genuine CDs would run was to incorporate on the disks a special code which unless read by the Playstation, would prevent the Playstation running the game.  These codes could not be read by a normal computer and thus would not be copied over when people burnt copies of the Playstation CDs. 

The chips (called “mod chips”) were designed to intercept the Playstation calls to the disk for the code and return authorisation for CD or DVD playback whether the disk contained Sony’s code or not.  The mod chips thus allowed unauthorised copies of Sony’s games CDs and DVDs to be run on Playstations.

Mod chips were being sold by a Mr Stevens and Sony sued Stevens for knowingly selling “circumvention devices” for circumventing Sony’s technical protection of their games.  At least for copy protection measures anti-circumvention law has been incorporated in the copyright law of various countries since the late 1980’s – even though a law which makes defeating technical protection of a copyright work illegal is not really copyright law at all.  Nevertheless because it is for the benefit of copyright owners, it has been included in copyright legislation and has been referred to as “paracopyright”.   The World Intellectual Property Organisation (WIPO) Copyright Treaty 1996 requires legal protection for all technical protection measures adopted by copyright owners.

Sony had lost their action against Stevens in the Federal Court, won on appeal to the full Federal Court and Stevens had appealed to the High Court of Australia.  In the meantime Sony had twice sued for breach of paracopyright in the United Kingdom.  In both cases there, it was successful against importers and resellers of a mod chip called “Messiah”.  However the paracopyright provisions as enacted in the United Kingdom Copyright Act were not quite the same as those in the Australian Act. The Australian courts had long come to opposite conclusions to their UK counterparts on whether copying into computer memory devices could infringe copyright – an issue of importance in this case.

The mod chip allowed the Playstation to play previously made copies of Sony’s games.  The Australian Copyright Act made it unlawful to circumvent technological protection measures which prevented or inhibited copyright infringement by denying access to a copyright work. The High Court said the mod chip did not do this.  It allowed access to CDs which had already been copied. 

The English courts had taken the same approach on copying to CDs, but said that mod-chips allowed copying from the CD to the Playstation memory (RAM) for subsequent running.  Therefore the UK paracopyright law had been breached. 

Australian law said temporary copying of digital media in this way was not an infringement of copyright.  The High Court therefore held that Sony’s technical protection measure was not the sort of protection measure envisaged by Australia’s paracopyright law and therefore Sony’s action to restrain the supply of mod chips in Australia failed.

The paracopyright provisions of the New Zealand Copyright Act are based on those originally contained in the UK Copyright Act 1988, although unlike the UK provisions, have not yet been amended to ratify the WIPO Treaty.  Nonetheless both Sony cases in the UK decided that even the unamended paracopyright provisions had been breached and a New Zealand court if asked to decide, could very well find the UK Court’s decisions persuasive and come to the opposite conclusion to the High Court of Australia. 

The Australian paracopyright provisions have proven somewhat limited – especially in view of existing law on copying to computer memory.  It seemed not to take into account even technical protection measures (for either software or digital content) already well known at its enactment in 2001.  In fact the technique used by Sony has some similarity to the “dongle” protection which was commonly used for computer software and which was the whole point of the Autocad copyright case which had the rare honour of going to the High Court of Australia twice.  No doubt there will now be pressure for yet another amendment to the Australian Copyright Act.

Sony’s protection technology also had the more controversial ability to ensure “out of zone” game releases could not be run.  One of the New Zealand Government’s pending digital copyright recommendations is that while the law against circumvention of technological protection measures of copyright works should be strengthened, (to comply with the 1996 WIPO Copyright Treaty) the circumvention of regional zone coding for DVDs will be allowed.

Ken Moon
Consultant, A J Park Auckland
ken.moon@ajpark.com
DDI