Can you pirate your own video game?

Hotline Miami 2, the forthcoming sequel to the excellent indie game Hotline Miami (note: I wrote that in bold, underline and italics to show how much I mean it), has been denied classification in Australia (another victim of the relatively restrictive local age rating system there).  So its developer instead just told Australian fans to pirate the game for free, attracting no small amount of games press in the process (hello, Streisand Effect).  So, I thought I’d write a little post on the subject of what happens legally if a developer pirates, or encourages piracy of, its own video game?   Continue reading Can you pirate your own video game?

Australia, Steam and consumer legal rights in video games

If you decide you don’t want your purchased Steam, Xbox Live or Apple iOS game anymore, or if it doesn’t work as promised or at all, what rights do you have legally?

I get such questions a LOT.  While there is a body of law about this area of consumer protection, sadly there is little in the way of actual, specific legal decisions applying those laws to this situation to to which I can point. So I read with interest some recent news out of Australia on the consumer protection front: the Australian Competition and Consumer Authority is to investigate Steam, the world’s largest digital distribution platform for games, over concerns that it does not comply with Australian consumer protection law, particularly relating to refunds and returns.

Continue reading Australia, Steam and consumer legal rights in video games

Sony brings landmark modchips lawsuit in Australia

Sony is bringing a potentially landmark lawsuit against a PS3 modchip seller over the legality of modchips in Australia. Most recently, Sony secured a temporary injunction against the seller,, banning them from selling any modchips while the lawsuit proceeds. In this guest post, Melchor Raval comments on the lawsuit and what it could mean for modchips Down Under…

Once upon a time, Australian gamers could brag to US and UK gamers that they had the right to modify their consoles using a modification chip (mod chip) [Jas: you can read more on modchips here and here]. At the moment, Australian gamers can basically install these chips into their consoles to circumvent the system’s capabilities of regional coding, digital rights management (DRM), and install an alternative operating system to completely re-purpose the console. However, recent amendments in the Australian Copyright Act 1968 introduced a stricter regime which could potentially ban mod chips (more on this below). Yet despite some recent fines obtained by Nintendo to manufacturers and distributors of the R4 modchip device – no actual case has actually confirmed that the changes ban modchip. In effect, as far all Australian gamers are concerned, the mod chip is still legal because the amendments are yet to be interpreted by a judge.

But this may not last for long since Sony is now bringing a test case against modchip distributor, OzModChips, to the Australian Federal Court in which it argues that the distribution of mod chips are illegal under the Australian law and therefore OzModChips must cease its modchip distribution. Before we get into the legal details, let’s backtrack for a bit.

The PS3 Mod Chip

On August 25, uploaded three Youtube videos online which proved that the first ever claimed working PS3 ‘mod chip’, called PS Jailbreak, actually worked. The mod chip is not actually a ‘chip’ like ye olde PS2 mod chips but is actually a simple USB stick that can simply be plugged into the PS3 USB ports. The device hacks the PS3 console and (for now) only allows the backing up of games into the PS3 hard drive, but the developers claim that it will open up the possibility of running homebrew software on the PS3 as well (such as emulators). The device was initially planned to be sold by the end of September 2010 by OzModChips with the hefty price of $170 Australian dollars.

Fearing that the PS Jailbreak could mean a repeat of the PS2 mod chip and piracy debacle, Sony succeeded on in obtaining a temporary injunction through the Federal Court of Australia on August 27 2010, to block the importation and sale of the device. In order to keep the ban permanent, Sony will have until September 3 2010 to convince the Court of the illegality of the mod chip. In a nutshell, Sony needs to prove to the Court that the device will be solely used to infringe Sony’s copyright works. OzModChips on the other hand argues that the device can be used for legally backing up games and homebrew applications (as they all do).

The Legal Rules

Sony’s and OzModChip’s totally different perspectives are not surprising since similar cases in the past, regardless of jurisdiction, have presented the same arguments. Australia gamers however have had the advantage because of the 2006 High Court decision in Sony v Stevens, which legalised the mod chip on the grounds that Sony’s technological measures did not prevent or inhibit infringement because the infringing activity (such as copying the game using your PC) precluded the use of the mod chip anyway. The mod chip only allowed access to the infringing game, but was not actually the cause of the infringement, which Sony’s technical measures needed to prevent. (See more on that here  – which explains it all in layman terms).

In spite of this short-lived victory for Australian gamers, Australia amended the Copyright Act 1968 in 2006 which obligated Australia to align their copyright rules with the far stricter American DMCA through the Australian-US Free Trade Agreement. The changes are very long and complex, but it can be summarised in this nifty comparative table:

The Arguments

(1) SONY

Though very simplistic, the table illustrates that Australian gamers might not be lucky this time for a number of reasons:

I. Sony can claim that the PSJailbreaker device is a circumvention device that circumvents the technological measures of the PS3 to allow the unauthorised backing up of games, which infringes s.10 (1) of the Act because access to these backed up games are not “in the normal course” of the PS3’s operation. Note the emphasis on the term effective because if reading literally from the actual provision, there is actually no requirement that the TPM needs to be effective in controlling access of work.

II. Sony can also bring a claim that the sale, manufacture and marketing of such devices are illegal because the device has no purpose other than to enable or facilitate the circumvention of the PS3’s TPM. Also note that emphasis is added on the lack of an effective technicality.

III. Any arguments contrary to the above two regarding the mod chips ability to allow the backing up of games can be nullified because of the explicit limitation brought about by s.110AA.

The third argument is perhaps the most disturbing because there is a lack of awareness in part by Australian gamers that backing up of games is NOT actually allowed since S. 110AA ONLY allows an individual to copy a videotape into electronic form for personal and domestic use. In fact, the Attorney-General’s Copyright Department (which can be read here) recently announced that no amendments will be made to the private copying exceptions for computer games!! So tough luck Oz gamers – backing up isn’t actually allowed at all, but could potentially tantamount to an illegal reproduction.


On the other hand, OzModChip could argue for the interoperability exception under s 116AN. This exception basically allows users to circumvent technological measures to install independent programs (i.e. homebrew) to devices without the authorisation of the owner.

The interoperability exception is quite a tricky legal technicality because it has not been tested in Australia. On the other hand, American case law (including Sony v Gamemasters and Sony v Divineo) have ruled out the application of their version of the interoperability exception as a defense for mod chips because the courts literally interpreted that the mod chip “bypassed, removed, deactivated or impaired a technological measure in the console without the authority of the copyright owner”. Moreover, interoperability must also be necessary under the DMCA and this becomes doubtful when console manufacturers have released official interoperable programs which can legally access the console without illegal circumvention (see here).

Under Australian copyright law however, there is a distinct lack of requirement that interoperability must be necessary. As such, OzModChips may argue that the development of independent homebrew applications interoperable with the PS3 is not totally dependent on whether it is actually necessary in the first place. Hence developers can develop independent apps interoperable with the PS3, such as an emulator, which can be useful but otherwise ‘unnecessary’. And if Sony argues that interoperability should only be allowed when it is necessary, well they pretty much proved that the using the PSJailbreak is necessary to create interoperable application since Sony removed the Linux compatibility option.

However, the ability of the dongle to play “infringing” games could weigh more than its non-infringing applications. This is to be decided by the court if they do a proportionality test –that is – whether the proportion of users who will use it for homebrew will actually be significant enough to warrant its legitimacy. Otherwise, if more gamers use it to pirate games then the defense will be useless.

So who will win?

Since this is the first time the amendments will be tested, the case will be decided on how the court interprets the provisions in question. My bet is that Sony will probably win this time because any backing up arguments will be rejected by the court, and it seems that the defendant will solely rely on this argument for the legitimacy of the device. The homebrew argument could also come off too weak since the court could potentially question whether the proportion of users who will use the device for legitimate home brewing might (and will) be outnumbered by eager pirates.

It is certain that the gaming industry have stepped up their battle against the mod chip manufacturers (as witnessed from the recent Playables case in the UK) and Sony has a lot riding in this case because the potential of piracy with their flagship console already spell big problems with their software sales, evident from the lack of developer support for the PSP. This is the one case for the industry and gamers to watch closely.

Melchor Raval is a current PhD Candidate at Monash University of Australia, writing his dissertation about the persistence of modification devices in the new generation of gaming consoles and the legislations that affects the legitimacy of the device. His previous article, which is a comparative analysis of the Australian amended Copyright Act 1968 and the DMCA regarding the mod chip, is pending for publication with a number of academic journals.

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Australia edges closer to an 18 games rating?

New South Australian Attorney General John Rau says he’s currently neutral on the issue of an 18 age rating for games in the country, reports

He told Gamespot AU that he had “no preconceptions about this issue and intend[s] to listen to the arguments” but that, until he has been able to read up on the issue, he “can neither support nor wisely argue against a position if I am not aware of the relevant factors“.  He also said that, “it is worth noting that ultimately, the decision does not rest with me alone…Any change would require the support of each jurisdiction’s attorney-general.”

We’ve written previously about Australia’s approach to games classification, which does not at present include an 18 rating.  This has led to games such as Aliens v Predator and Left 4 Dead 2 previously being banned for being too ‘violent’ for a 15 rating.  It was widely held at the time that the sole barrier to introducing an 18 rating was former South Australia Attorney General Michael Atkinson, who was said to be the only Attorney General actively opposed to an 18 rating (Australian readers, correct me if I’m wrong on that).

Since then, the Australian government has held a large public inquiry into an 18 rating and Mr Atkinson has stepped down.  Positive signs for an 18 rating for Australian games?  Watch this space…

[Image credit:]

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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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Australia turns banhammer on Modern Warfare 2?

We’ve previously blogged about South Australia’s (ultimately successful) attempt to cut everything popular out of Left 4 Dead 2 – bye bye gore, violence and (presumably) the more offensive zombies, on the basis that Austalia’s game classification system only goes up to 15 and L4D2 as a game goes well beyond that rating.  The obvious solution would be to introduce an 18 rating (in common with many other countries), but the Austalian response ultimately was simply to refuse to admit the game into the country as it  was presently constituted.  So, instead, EA/Valve had to release a special Australia-only toned down version (with which some sources appear to have been less than impressed).

Now, it seems that a certain South Australian may have set his sights on Modern Warfare 2 (which, by the way, is doing rather well elsewhere in the world).  MW2 at present has a 15 rating, but the South Australia Attorney General, Michael Atkinson, is set to appeal that rating – which, if successful, it seems likely would effectively mean blocking the game in Australia.  L4D2 down, MW2 in the gunsights – good going so far. 

But why MW2?  We would wager it may have something to do with the global political outrage regarding that mission.  This seems to be borne out by a quote from the man himself (thanks, “I worry about any game that encourages gamers to perpetrate extreme violence and cruelty on screen, but this game allows players to be virtual terrorists and gain points by massacring civilians. Expecting game designers to be responsible by not glorifying terrorism will always lead to disappointment.”

Our suggestion: perhaps Mr Atkinson should team up with the UK’s Keith Vaz (Labour MP and no fan of allegedly ‘violent’ games) and combine their individual powers to ban all games other than (i) The Sims (provided each Sim is confined to his/her house); and (ii) Flight Simulator (provided the plane does not actually leave the ground).  It could happen…

News: Australia conclusively pwns L4D2

The ongoing saga as to whether or not Australia will permit the full version of Left 4 Dead 2 in all its zombie-mowing-down glory (see here and here for previous instalments) appears finally to be come to an end. reports that the Australian Classification Review Board has turned down publisher EA’s appeal against a previous decision of the Classification Board that L4D2 could not be given a 15+ rating, being the highest rating that Australia has.  In effect, if a game does not meet the criteria of a ’15’ game, it cannot be admitted into Australia.  So, Valve will instead have to sell a toned-down version of the game in Oz, which version does not contain “depictions of decapitation, dismemberment, wound detail or piles of dead bodies lying about the environment”.  So that’s alright then.

As we’ve previously noted on this blog, this seems a clear case of the law simply not being up to date and certainly not up to speed with modern gaming.  The practical consequences of this decision are likely to be: (i) consumer dissatisfication; (ii) relatively lower revenues for Valve; (iii) massive piracy of  the full version of the game; and (iv) to a lesser extent, legally dubious parallel imports of the full version of the game into Oz.  None of which stands exactly to the credit of the local of federal governments of Australia.

[Image source: Wikipedia –]

News: Australia vs L4D2: Part 2

Another twist in the battle between Valve, Australia’s game classification board and the countless thousands of zombies which comprise Left 4 Dead 2 (see our first blog entry on this farce here; thanks for the update on this story are due to Slashdot).
It seems that Valve has prepared a “compromise” version of L4D2 with which the Australian game classification board feel happy enough to award it a “15+” rating.  Exatly how is this a “compromise”?  The most popular quote from the board’s report is that:
“The board notes that the game no longer contains depictions of decapitation, dismemberment, wound detail or piles of dead bodies lying about the environment.”

We can’t help but wonder what this compromise version will look like – flowers and daisies will replace all the dead zombies (a la Serious Sam) ?  Possibly the Tellytubbies or Bob the Builder might make an appearance? 

Apparently, Valve is still pushing ahead for its full version to be accepted – a hearing is scheduled for later in the month.  Let’s assume that that hearing decides the “compromise” version must be released.  It seems to us that that decision may well lead to an increase in (i) downloads (or attempts to download) the non-Australian version of L4D2; and/or (ii) considerable attempts to crack the Australian version; and/or (iii) an increase in parallel imports of non-Australian versions.  All of which would no doubt be in breach of several Australian laws.  We will leave readers to draw their own conclusions as to whether the board’s rating decision should still stand in those circumstances…

News: Australia and Germany pwn L4D2 and Wolfenstein respectively

An eventful week in the ongoing battle between national regulators and the games industry.

Australia vs Left 4 Dead 2

Australia has banned Left 4 Dead 2 on the basis that it is, well, just too violent. Apparently the Australia game classification system simply does not contain an 18+ rating and, L4D2 being what is is, they decided it was not appropriate to rate it as 15+.  Therefore, they felt they had no choice but to ban it. 

Of course, one has to wonder whether, if that kind of logic was evenly applied across games and other media products entering Australia, just how much entertainment would be able to enter Australia.  More generally, query whether this was really an appropriate response  – isn’t the real issue that there needs to be some modernisation of the classification system there?

[30/09/09: UPDATE: has a follow-up piece here, which confirms that (at least in South Australia) the Attorney-General continues to oppose implementing an 18+ rating in Australia’s rating system.]

Germany finds out Wolfenstein apparently contains some Nazi symbols (shock!  horror!) reports that Activision has removed all copies of the new Wolfenstein game from Germany after it was discovered that one small Nazi flag had been left in the game.  It is, of course, culturally very insensitive to display or in any way glorify the Swastika in Germany.  Perhaps more relevant for Activision though is the fact that it is also an offence to display the Swastika in Germany (other than in a historical/artistic context).  Presumably Activision decided not to plead the historic/artistic exception, so the game had to go.

Again though, was this the appropriate response?  Presumably Activision was comfortable with the fact that, looking past the flag matter, there are no legal issues raised by publishing in Germany a game which consists of blasting away Nazis in Nazi strongholds which are literally dripping with with Nazi iconography (and blood).  Does that not raise issues in and of itself?