The
Sony companies sued mod-chip seller Eddy Stevens in 2001, arguing
that he had infringed Australian trade mark and copyright laws by
selling pirated games and mod chips that could be used to run the
games. They have now lost the part of the case relating to mod
chips.
The suit concerned the Australian Copyright Amendment (Digital
Agenda) Act of 2000, which makes it an offence to make, sell or
promote devices to override copy-protection technology. Mod chips
are devices that, once installed in a console, permit the use of
imported games and back-up copies but can also be used to run
pirated games.
The question for the court was whether the mod chips were a
s
copy protection system could be found to be a “technological
protection measure.”
In 2002, a federal judge ruled that Stevens had infringed Sony's
trade marks by selling pirated games. However he decided that
chipping the consoles was not illegal, reasoning that modified
chips overrode a device that only prevented copied games from being
played and did not prevent them being copied in the first place.
Sony’s device was not therefore a technological protection
measure.
Sony appealed the ruling, and in August 2003 the Court of Appeal
unanimously held that the federal judge was wrong. In its
opinion, the fact that Sony's system made the copied games unusable
was sufficient to bring it under the protection of the Digital
Agenda Act.
Stevens appealed to the High Court of Australia. In a unanimous
ruling the country’s top court today upheld the federal judge’s
original decision, accepting his 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.
UK position
In the UK, the modification of consoles has been an illegal
practice since 31st October 2003, when Regulations were passed that
made an amendment to the Copyright Designs and Patents Act.
The new regime allows rightholders to take action against
individuals who circumvent what the law calls Technological
Protection Measures, or TPMs, to make unauthorised use of
copyrighted works. Action, including criminal action, can also be
taken against those who make and distribute equipment designed to
circumvent TPMs.
Accordingly, the whole process of chipping consoles is illegal,
including selling and advertising chips as well as providing a
service for chipping.
The UK saw its first criminal conviction for the illegal
modification of video games consoles in July.
