Sale of mod chips prohibited in Australia
The Full Federal Court of Australia has allowed an appeal1, by Sony that effectively prohibits any further sales of mod chips for video game consoles in Australia.
In a unanimous decision, the court adopted a broad construction of the definition of "technical protection measure" in the Australian Copyright Act2. The definition in the Act requires that the measure must be one designed "to prevent or inhibit the infringement of copyright". The Court felt that this definition was wide enough to cover an intended result of deterring or discouraging infringement by rendering any infringing copy useless for the purpose for which it was made. Sony's PlayStation was held to include such a technical protection measure, which a mod chip sold by Mr Stevens circumvented in breach of the provisions. Although the technical protection measure did not directly prevent copying, it did discourage copying and sale of pirate games by rendering them unplayable.
By adopting a broader interpretation, it was not necessary for the Court to consider arguments that related to the extent to which the console and its technical protection measure directly prevented or hindered acts of infringement by its own operation. Nevertheless, the Court did consider and comment on the arguments dealing with copying in the console at some length.
On the issue of temporary reproduction in RAM, the Court concluded that the words "in a material form" did impose a limitation on the Act that reproduction of the work in a digital form will only constitute copyright infringement if the form of storage is itself amenable to further reproduction (French and Lindgren JJ, Finkelstein J dissenting). Lindgren J felt that it was an unrealistic and strained construction to treat the words "can be reproduced" at the end of the definition of "material form" so widely as to encompass "could be reproduced if an additional device, not supplied with the console and not yet available, were to be manufactured and attached to it" or "could be reproduced if the RAM under consideration formed part of a future modified console". As to the argument that the console produced a copy of a cinematograph film in RAM, the Act requires this reproduction to occur in an article or thing, and Lindgren J felt that the RAM was not an article or thing existing outside and independently of the console. He felt that the evidence did not establish that the RAM made a copy of the visual images produced by the console in the manner required by the Act. Finkelstein J took a different approach and felt that to hold that the RAM is not a form of storage would be to thwart the legislature's intention. He was persuaded by the fact that the visual images could be continuously displayed when the power was left on the console, and felt that this was substantive enough to find that reproduction had occurred, and that there was copying of a substantial part of a cinematograph film in the RAM.
- Kabushiki Kaisha Sony Computer Entertainment v Stevens  FCAFC 157, 30 July 2003
- s116A, Copyright Act 1968 (Cth)