Tag: Modchips

Modchips now legal in the EU (as long as they’re not naughty)

We now have some authoritative clarification about the legal status of modchips in the EU for the first time.  As longstanding readers of this blog will know, I’ve been writing about modchips for some time.  Here’s a quick recap of the latest position.

What are modchips?

Essentially, a modchip is a technology which permits you to circumvent restrictions which a device manufacturer builds into a device to limit your potential usage of the device.  These limitations are enforced by technology commonly called ‘technological protection measures’.  For example, a modchip might permit you to install software or to play games on a device which otherwise you wouldn’t be able to due to the technological protection measures installed by the device manufacturer on the device. Continue reading Modchips now legal in the EU (as long as they’re not naughty)

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, Ozmodchips.com, 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, OzModChips.com 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.


(2) OzModChips.com


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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Nintendo v Playables – the latest modchip case considered

It seems that Nintendo is on a mission to gun down modchip sellers at the moment. I posted in May 2010 that Nintendo was suing New York-based modchip seller NXP Games, Inc. The 1709 Blog has just reported that Nintendo has successfully just sued another modchip seller in Holland. And, last week, Nintendo won a UK High Court claim against modchip seller. This post is about the UK decision.

Here’s a quick summary:

Nintendo v Playables, the UK High Court decision on modchips delivered last week, was not a groundbreaking decision. It simply reinforces the fact that previous caselaw has already found that the sale and distribution of modchips breaches UK copyright laws and is therefore illegal. So, this decision did not make modchips illegal for the first time under UK law.  It is still an important decision, however, because it forms part of a continuing move in the US/UK towards outlawing modchips altogether – an approach which is not shared in certain other countries, particularly in Europe (more on that at the end of this post).

So, now read on the clever(ish) legal analysis. Oh, and for more background on modchips you can read my previous post ‘Are Modchips Illegal?’…

The story

Nintendo manufactures and sells its handheld Nintendo DS among other consoles. Playables, a UK company, imported and sold devices which when connected to a Nintendo DS could be used to play pirated games (either using inbuilt memory or through inserting memory cards into the device). In other words, Playables sold modchips.

HM Revenue & Customs and Trading Standards seized about 165,000 of these modchips en route to Playables, which led to Nintendo finding out about them and deciding to commence High Court proceedings against Playables and one of its directors. As it turned out, prior to trial Nintendo agreed a partial settlement with Playables (the terms of which are unknown and no doubt secret) but nonetheless sought summary judgment of the case to court in order to obtain legal vindication of its position.

Fundamentally, Nintendo argued that the modchips infringed its copyright in: (i) the source code for the boot up software; (ii) the Nintendo Logo Data File (which assist the DS to run); (iii) the Nintendo ‘Racetrack’ logo. In legal terms, the arguments being run were:


(i) circumvention of ‘Effective Technical Measures’ (essentially, they deliberately circumvented technology put in place by Nintendo to stop copyright infringement); and


(ii) pure copyright infringement.


More on that below.


The ETM argument


This is where we get a bit legal. Nintendo relied upon two provisions in the Copyright Designs and Patents Act 1988 (the “CDPA”), section 296 and section 296 ZD.


Section 296 prohibits anti-circumvention devices that have been applied to computer programs. To establish a breach of this provision, Nintendo had to prove that: 

  1. there was a “technical device” which had been applied to a computer program; and
  2. that the defendants had manufactured it/sold it etc for the sole purpose of the unauthorised removal or circumvention of the technical device.

In addition, for one of these sections Nintendo also have to prove that the defendants actually knew or had reason to believe the technical device would be used to make infringing copies.


Nintendo easily could prove Test (1), since the modchips physically are inserted into the Nintendo DS and can then be used to run pirated games etc.


As to Tests (2) and (3), Playables advanced the same arguments that pretty much all modchip sellers have advanced in these cases:

  • modchips are not just sold for circumvention purposes but can have legitimate uses, e.g. if you wanted to play your own game on the console; and
  • the modchip sellers don’t know that their devices would be used by people to make/use pirate games.

In the UK, these arguments had already been put forward (and failed) in several cases, in particular one called Sony v Ball and separately in R v Gilham (more on that below). Here, again, the judge gave these arguments pretty short shrift. He said “I do not think that the defendants have a realistic prospect of asserting that they did not know of the unlawful uses to which the devices would be put” and that Playbles had “no realistic prospect of success” in arguing the modchips were for legitimate purposes.


The Jurisdiction angle


One interesting/new question which came up during this part of the case was what happens when a modchip seller is exporting modchips outside the UK as well as selling them within the UK. Does just exporting modchips outside the UK fall foul of the CDPA as well?


Mr Justice Floyd said yes, it does. He said that one of the CDPA sections being relied on, s296 ZD, is concerned with dealings in the UK in devices capable of circumvention. Nintendo did not need to prove actual circumvention.


So what? Answer: on this reasoning, if in the future a modchip seller was to import modchips into the UK and then export them out (e.g. to Europe), that would be illegal even if the modchip is not actually sold/used in the UK. It also means that the claimant (in this case, Nintendo) could seek greater financial damages.


The copyright argument


As I said above, as well as an ETM argument, Nintendo also brought a plain old vanilla copyright argument, based on the DS source code, the NLDF and Nintendo’s logo (well, actually, Nintendo’s argument was that Playables should be liable for copyright infringement because its device authorised others to infringe Nintendo’s copyright, most likely because it would be hard to prove that Playables itself had actually infringed Nintendo’s copyright).  These arguments met with more limited success: Nintendo only won on the NLDF authorisation point.


The court’s judgment


We already know that Nintendo/Playables itself had settled but Nintendo wanted a judgment in its favour. So, it went off seeking summary judgment from Mr Justice Floyd, who found in its favour on the ETM argument and partially in its favour on the copyright argument. The Judge also found there was enough evidence to find Mr Chan, the Playables director, jointly liable with Playables.


Also, just to emphasise, the court’s judgment was directed at whether Playables had in fact breaches the relevant sections of the CDPA.  This case did not seek to establish as a general principle that modchips are illegal, as that had already effectively been achieved by a combination of the CDPA provisions and previous caselaw.  Obviously though this case will act as further precedent to be used in any subsequent cases against modchip sellers in the UK.


Analysis


As I said, this was not a groundbreaking decision, but it does have some interesting aspects:

  • It forms part of the continuing trend in the US/UK towards outlawing modchips altogether, by finding that they have no legitimate purpose other than to facilitate copyright infringement/games piracy. For example, the case follows hot on the recent UK criminal case of R v Gilham, in which a modchip seller was convicted of offences relating to his sale of modchips (you can read my thoughts on that case here).
  • It contrasts with the view on some other countries that in fact modchips can be used for legitimate purposes and that the games companies should not have ‘their own way’ of controlling the consoles in the way they want, rather than what consumers want. For example, you read here about recent modchip decisions in France and Spain which moved in that direction.
  • It shows that the directors and employees of modchip sellers can be personally liable, not just the company. Here, Mr Chan was found financially liable as well as Playables. In Gilham, Mr Gilham himself was prosecuted and convicted. This is must be a serious deterrant factor, but…
  • The fact that the case was taken all the way to judgment shows that the console manufacturers clearly do still regard modchips as a serious concern, so deterrants are needed.
  • HMRC were involved. We don’t know exactly how, but clearly there was (and has been for some time) cooperation between HMRC and the console manufacturers to tackle copyright infringement/piracy of all kinds, including modchips.
  • Why didn’t Nintendo go for criminal prosecution of Mr Chan and/or Playables? We know from Gilham that console manufacturers have done this before against modchip sellers. Instead Nintendo relied on a civil suit. Why? I can speculate, but really it’s a mystery…

So what next?

In the UK, Playables will likely be shut down, Nintendo’s position has been vindicated, now it and the other console manufacturers will need to focus on the next modchip threat.

However, modchips are used all over the world, with the console manfacturers being forced on jurisdictional grounds to fight legal battles under the legal systems of several different countries to outlaw modchips (for example the New York and Holland lawsuits mentioned above). It is by no means clear that the same result achieved here would be achieved in say France, China or Brazil. All of which unfortunately means continued legal expense and uncertainty for the console manufacturers.

Speculation alert: in the meantime, as far as I am aware there has been no or very little consideration of the use of modchips from a consumer law perspective in Europe, certainly in the UK. Perhaps a consumer law argument could help to change the nature of the argument away from pure copyright considerations? Sounds like a tough gig, but you never know. Watch this space…



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Nintendo sues another modchip reseller

GamePolitics reports that Nintendo is suing NXPGame Inc, New York based reseller of Nintendo DS modchips, as well as its owner apparently.  It is seeking $150,000 for infringement of each copyright work and $2 million for infringement of each Nintendo trademark.
We’ve previously discussed the legality of modchips on this blog.  In the UK, the sale of modchips is quite clearly illegal as there is a specific legal prohibition on the use of devices like modchips which are intended to circumvent “technical measures” designed to prevent copyright infringement.  In the USA, the DCMA imposes broadly similar restrictions on the sale of modchips.  Doesn’t sound too hopeful for NXPGame, eh?
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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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Are modchips illegal?

[This article was first posted on Gamaustra here]

This article is about modchips: is their sale/use illegal or not?  We look at three recent cases in England, Spain and France – which show an interesting divergence of European opinion as to the legality of modchips: not every country thinks that modchips are a bad thing.  More below…

What is a modchip anyway? 
Wikipedia has a succinct definition:

“A modchip (short for modification chip) is a small electronic device used to modify or disable built-in restrictions and limitations of many popular videogame consoles. It introduces various modifications to its host system’s function, including the circumvention of region coding, digital rights management, and copy protection (homebrew) software checks for the purpose of running software intended for other markets, copied game media, or unlicensed third-party.” 

Modchips exist for other devices (e.g. dvd players) but for today’s purposes we’re only talking about modchips which are used in games consoles and which are intended to circumvent games copy-protection: in other words, modchips which fool a console into thinking that the player owns an authentic, licenced copy of a game when it fact he/she does not.  An example of such a modchip is the wiikey, which (funnily enough) mods the Wii.

Why are modchips a problem?
Modchips are seen as a problem by the games industry because: (i) they are said to facilitate games piracy by allowing players to play unauthorised/pirated copies of games; and (ii) they enable a player to tamper with the innards of a games console.  The games industry periodically takes action to stamp out modchipping – for example, Microsoft banned a lot of Xbox Live accounts of owners of chipped consoles last year.
Of course, gamers may (and do) take a rather different approach.  Many argue: (i) it’s my console and I should be able to do what I want with it, including playing pirated games or modifying my console; and (ii) I didn’t ask console manufacturers to install arbitrary mechanisms for controlling what I can do with my console.  And so forth.

Still, the purpose of this post is not to debate the merits of these arguments, but simply to summarise what the legal position is regarding modchip in different jurisdictions.  (Caveat:  the following really is just a summary, so it should not be taken as a authoritative analysis of the law of these jurisdictions!)
England
Use and sale/distribution of modchips is illegal in England.
Section 296ZB of the Copyright, Designs and Patents Act 1988 (CDPA) makes it a criminal offence to sell or distribute “any device, product or component which is primarily designed, produce, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures” (this provision was introduced as part of the EU-wide anti-DRM laws introduced by the EU Copyright Directive of 2001).
So, under English law the sale or distribution or such devices intended to circumvent “effective technological measures” is a criminal offence.  Does this apply to modchips?  Yes, is the answer.  We know this thanks to recent case-law in the English courts. 
In a case called Gilham v the Queen, the Court held that that selling or hiring modchips will be a criminal offence under s296ZB CDPA if it is established that:
(1) The game is or includes copyright works.
(2) The playing of a counterfeit DVD on a game console involves the copying of a copyright work.
(3) Such copying is of “the whole or a substantial part” of a copyright work.
(4) The game consoles include effective technological measures designed to protect those copyright works.
(5) The offender sold or hired the modchip device in the course of a business.
In Gilham v the Queen, the jury found that modchips met of all of these requirements – and so they convicted Gilham.  He appealed, arguing that using a modchip does not lead to copyright infringement because there is no “substantial” copying of the game – all that happens when you play a chipped game is that a fragment of the game is copied to the console’s RAM at any point, which is insufficient to establish copyright infringement.
 This gave rise to tricky legal issues as to whether copying lots of little pieces of a copyright work (so-called “little but often” copying) could in some way turn into “substantial” copying.  Tough question…which the Court side-stepped by instead holding that the game drawings which appear on the screen, and the audio recordings which are played, are themselves copyright works which are “substantially” copied in playing the game.
So, selling modchips is illegal under English law.  What about just using a modchip in your console but not selling/distributing them?  You’re no better off really, because (following the logic in Gilham) using a modchip in your console would involve copyright infringement – which could have civil (and possibly criminal) legal implication of its own.
Verdict: sale or distribution of modchips in England is a criminal offence.  The use of  modchips in your own console would likely constitute copyright infringement.
Spain
Since Spain is also subject to the EU Copyright Directive (which led to the introduction of the law in England that has made modchips illegal -see above), you may expect to see Spanish law also ruling that modchips are  illegal.  Si?
Apparently…no.  Admittedly I’m by no means a Spanish lawyer, but I understand that the Spanish Penal Code does contain measures intended to prevent the circumvention of “effective technical measures“.  However, a Spanish court case in 2009 seems to have gone the opposite direction to the English courts.
The case followed a criminal complaint by Nintendo against Movilquick, a Spanish modchip distributor. The judge decided that flash carts could be used for “both legitimate and illegitimate purposes, but not only illegitimate” purposes.  He held that flash carts could be used for “pirated games” but may also have  “legitimate functions of employment” such as “backing up original games or other various functions such as managing photos, music or performance of [free] software“.  On that basis, he dismissed the criminal complaint.
Why is this interesting?  Well, it is not often that one sees the judiciary coming down on the side of gamers.  The judgement was not set out in great detail, so it is not at all clear why the judge decided to do so.  In particular, it is not clear how this decision can be reconciled with the EU Copyright Directive (or with the Spanish law that implements it). It is also not clear whether this is the only case-law on the subject – it may be that there are other Spanish cases elsewhere that go the other way. Still, I imagine it made Spanish gamers happy…
Verdict: using or selling a modchip/flash cart may be legal, but just wait for Nintendo’s lawyers to get the appeal going…
France
Ah, La France, home of la loi Hadopi (also known popularly as ‘3 strikes’) and also a subject of the EU Copyright Directive.  Do its judges sympathise with their English or their Spanish colleagues when it comes to modchips?
Answer: Spain, apparently. 
Details so far are sketchy (no sign of the actual judgment yet) but summary as follows: in December 2009, a Paris criminal court ruled that Divineo, a company which makes Nintendo DS flash carts – essentially, a type of modchip – did not break the law (i.e. presumably they do not “circumvent effective technical measures“).
The Court’s logic seems to have been that flash carts in fact extend the utility of the DS and that the user should therefore be free to use them as he or she wishes – a lot closer to the reasoning of the Spanish than the English court.  But, in the absence of more details being made public (especially the Court’s formal judgment), it is not entirely clear on what legal basis the Court made its judgment.
For completeness: Nintendo said it would appeal the decision and pointed out that Divineo has already been banned from selling flash carts by a Hong Kong court and ordered to pay damages to Nintendo.
So, are modchips illegal then?

It is pretty clear from the above that there is a divergences of opinion within the EU as to the legality of modchips.  The legislation is there (i.e. the EU Copyright Directive) to make modchips illegal, but that legislation has been interpreted (or possibly simply ignored) in different ways.

As often happens in the EU when different Member States take different approaches to legal issues, the answer may only come when the EU itself takes the opportunity to clarify the position (whether through a case before the European Court of Justice or through further legislation from the Commission)…but those opportunities are relatively few and far between.  Until then, that uncertainty seems set to continue…
What about modchips in other countries?
For those of you who are interested, here is a quick round-up of developments in the treatment of modchips in other jurisdictions:
  • USA: in principle, use of modchips may fall foul of the Digital Millenium Copyright Act (DCMA), which has been used previously to get at sellers of modchips (example here)
  • In Italy, back in 2005 a court ruled that the purpose of modchips was to ‘avoid monopolistic positions and improve the possibilities for use of the PlayStation’. The court said: ‘It’s a little like Fiat marketing its cars while banning them from being driven by non-European citizens or outside towns.’ “
  • In Australia, the Australian High Court ruled in 2005 that modchips for the Playstation 2 were not illegal.  As I understand 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.  (As far as I’m aware, that position has not been contradicted in any subsequent case-law).

    (In England, the Court took a rather simpler approach by holding that the very act of playing a game using a modchip constitutes copying infringement – but there may have been good reasons why this
    argument was not adopted in Australia).


Closing thoughts
  • Even without having to get into a detailed legal review of the laws of different jurisdictions, it is clear that some countries have adopted a relatively hardline approach to modchips (e.g. the UK or USA).  In particular, the UK has made it clear that the sale of modchips may be a criminal offence.
  • But, maybe surprisingly, other countries appear to have taken a more neutral/favourable approach to modchips, recognising that modchips are not just about playing pirated games.  With games companies apparently remaining keen to shut down modchip sellers (as with the French action above), it will be interesting to see what 2010 brings…