High Court of Australia rules on chipping of game consoles
The High Court considered that the PlayStation did not include a “technical protection measure”, as defined in the Australian Copyright Act 1968 (Cth) because it did not prevent any copyright infringement. It was considered that any infringement would have already occurred through burning a CD-ROM for play in the console, and the mod chip installed by Mr Stevens was used for a different purpose, ie subsequent play of the game. Based on the evidence submitted by Sony, it was not established that any infringement under the Act occurred merely by playing the game.
In overturning the Full Federal Court decision, the High Court accepted and reinstated the narrow construction of the technical protection measure provisions in Sackville J’s initial decision.3The provisions at issue in this case, however, have since been amended to expand the definition of “material form” so as to no longer require that the form in which a work is reproduced must itself be capable of further reproduction.4Australia also has obligations under a Free Trade Agreement (FTA) with the US to amend the technical protection measure provisions by 1 January 2007 to expand their operation.5
Sony’s arguments concerning reproduction of a “cinematograph film” during play of the game were also dismissed largely on the basis of the evidence before Sackville J.6
Accordingly, whilst the High Court decision has allowed Mr Stevens to escape liability, the decision does not provide a green light for console chippers in Australia. Armed with the amendments to the provisions to comply with the FTA and better evidence concerning reproduction of works and other subject matter during play of the games, content owners, such as Sony, may still be able to use the provisions to find chippers liable.
1. Eddie Stevens v Kabushiki Kaisha Sony Computer Entertainment & Ors  HCA 58, 6 October 2005.
2. Kabushiki Kaisha Sony Computer Entertainment v Stevens  FCAFC 157, 30 July 2003.
3. Kabushiki Kaisha Sony Computer Entertainment v Stevens  FCA 906, 26 July 2002.
4. By the US Free Trade Agreement Implementation Act 2004 (Cth), Schedule 9, which commenced operation on 1 January 2005.
5. Amendments must be made to the Copyright Act 1968 to ensure compliance with Article 17.4.7 of the Australian-United States Free Trade Agreement (AUSFTA). An Australian Government Committee is currently considering whether additional exemptions to liability under the technical protection measure provisions would be appropriate (http://www.aph.gov.au/house/committee/laca/previnq.htm).
6. Supra, n1, para 98.