Nintendo ‘wins’ Australian modchip lawsuit, but are modchips actually illegal Down Under?

GamePolitics reports that the Australian Federal Court “has ordered RSJ IT Solutions, operators of the website GadgetGear, to stop selling R4 mod chips for the Nintendo DS and to pay Nintendo $520,000 AU in damages“.
You might fairly assume from that headline that modchips are illegal in Australia.  Not so.  When we previously discussed the legality of modchips previously at Gamer/Law, we saw that in the last-reported Australia case on modchips, the Australian High Court ruled that modchips for the Playstation 2 were not illegal.  As I understood it, the Court’s reasoning was that, since the Playstation 2 technology had only ever sought to stop players playing unauthorised games but had not sought to stop them copying those games, a modchip which assisted players to play but not copy unauthorised games was not an attempt to circumvent “technological protection measures” under Australian law. 
Does this Nintendo case overrule that law?  Apparently not.  According to Australia’s ITNews, the Nintendo case was actually settled out of court, meaning that all the Court was doing in the order which GamePolitics referred to was setting out what RJS IT Solutions had agreed to pay to Nintendo in the settlement.  It would not therefore mean the court has changed Australian law.  If that’s right, then it seems to me that modchips are presumably still legal in Australia (although, of course, Nintendo may well have had powerful arguments in the litigation that the law should actually be changed – modchips are illegal in the UK and USA after all).  Glad to hear from anyone with greater Australian legal experience who knows different…
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1 comment

  1. Under Australian law, modchips can be installed in region code protected consoles in order to allow consumers to play imported games and backup copies of their legitimately bought games. However, the installation of mod chips in non-region protected consoles, like the DS, is not allowed becasue in the eyes of the law, this facilitates piracy.

    Its a hugely confusing and muddled piece of law, especially considering that R4 carts facilitate fair use as well as piracy, the same argument which resulted in region coding being excluded from legislative definitions of a TPM.

    Australian anti-circumvention laws have changed since Sony v Stevens, but since the PS2 is region protected, the courts would prob have still come to same conclusion.

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