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October 6, 2005
Australian High Court Deals a Blow Against Ubercopyright
The Australian High Court today brings us refreshing copyright sanity.
It ruled for the mod-chippers in Stevens v. Sony, the case in which Sony was suing under Australia's anti-circumvention laws to stop people from modifying the Sony PlayStation to play cheaper overseas versions of games. Specifically, it found that:
[The] true construction of the definition of "technological protection measure" must be one which catches devices which prevent infringement. The Sony device does not prevent infringement. Nor do many of the devices falling within the definition advanced by Sony. The Sony device and devices like it prevent access only after any infringement has taken place...[In] construing a definition which focuses on a device designed to prevent or inhibit the infringement of copyright, it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it.
If I'm interpreting correctly (and that's a big "if"), the Court has essentially said, "If you're not using a technological protection measure to stop copyright infringement, you don't deserve protection under copyright law. We will not uphold your 'right' to use technological protection measures to protect anything but copyright."
In other words, the Court refuses to turn an appropriately limited monopoly right (copyright) into an unlimited "ubercopyright."
Australian copyright expert Kim Weatherall has extensive analysis, explaining:
[Measures] like those used by Sony are about controlling use of and access to Sony PlayStation consoles. Sony controls all kinds of things about the way people use Sony consoles. For example: they control whether people can:
- play legitimately purchased games sold in overseas markets;
- play games created by someone other than Sony on the Sony console (something that cannot be done on a non-chipped console owing to the absence of an access code).
So while Sony can argue that it wanted to prevent piracy (it clearly did), and that the measures acted in part to deter piracy (they clearly could), Sony's own approach to the measures muddies the waters. It doesn't just act to prevent infringement, and that point is taken notice of by the Court here. One can't help but suspect the legal reasoning would look different, in this case, if Sony only used its power over the console to actually prevent use of 'pirated' disks.
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