A Comparative Discussion of the Two Cases

A case was filed before England and Wales High Court, Chancery Division involving Sony Group of Companies against seven defendants. The defendants designed, manufactured, sold and installed Messiah2. This electronic chip when installed in PS2 console allowed PS2 authentic games designed for a specific geographic area (Regional Access Code) to be played as well as the unauthorised copies and those from either of two regions considered as ‘foreign’. According to the Court, the Messiah2 chips circumvented the copy protection system of Sony.

This prevents use of copied PS2 game on PS2 consoles and all uses of PAL consoles with non-PAL games and vice versa. Defendant Ball is found to have advertised the chips, thus are exported and installed in UK and abroad in violation of the provisions of s 296ZD of the Copyright, Designs and Patents Act 1988. The Court further ruled that notwithstanding the amendment of s 296, there is still an unauthorised circumvention considering that the law does not make a distinction between the work being located in the hardware or on the software.

The law simply requires that the work ‘be issued to the public in an electronic form which is copy-protected. ’ Copy-protection refers to any "means intended to prevent or restrict copying of a work". With the amendment, s 296 now refers to ‘technical device’ which is defined as "any device intended to prevent or restrict acts that are not authorised by the copyright owner of that computer program and are restricted by copyright. ”  Clearly, the amendment does not affect the fact of violation.

Section 296D refers to technological measure which is defined as "any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program. " This is a general definition of technical device and there is nothing that suggests that the work should be located in the software. The High Court in the case of Stevens v. Kabushiki Kaisha Sony Computer Entertainment took a stricter interpretation of the law.

In interpreting the term ‘technological protection device,’ the High Court resorted to the provisions of Acts Interpretation Act 1901, specifically Sections 15AA,  15AB  and the pronouncement in the case of CIC Insurance Ltd v Bankstown Football Club Ltd (1997)  It explained that in statutory construction resort is had from ‘extrinsic materials’ such as reports and deliberations of the legislative body relative to the enactment’s history with reference to its mandated purposes.

It ventured in stating the reality in the enactment of legislation whereby there are competing groups lobbying with competing interests which most often than not lends to the enactment of legislation ‘not as a law motivated solely by the public interest. ’ In fact it is considered a compromise, both not restrictive and broad. By reason of this the Court concluded that the best interpretation would be the ‘text’ of the provisions, thus adopting the mechanically focused approach of Sackville J.

‘The technological measure that limits access to the database for those who have the key and password limits act of access and which may facilitate infringement after access. ’ On the other hand, the Court in the case of Kabushiki Kaisha Sony Computer Entertainment Inc and Others v Ball and Others did not go to the extent of detailed statutory construction. Instead the Court accepted the evidence of Sony that PS2 consoles and games are designed to work together and contain a copy protection system whereby one is embedded in the console and the other in the CD or DVD, cooperating together like a lock and key system.

This evidence was not disputed by the defendants. There was no dispute that the system adopted by Sony is a copy protection device and that the Messiah chip is designed to circumvent it. The issues raised were that the chips are not articles within the meaning of the Copyright, Designs and Patents Act 1988 and that the defendant did not know that the Messiah chips would be used for infringing copies because these chips are exported. The Court readily interpreted that the silicone chips are articles.

In construing the law, the Court ruled that defendant ‘distributes, offers, exposes or advertises for sale and has in possession for commercial purposes these products and he promotes and advertises them for customers in the UK as well as customers abroad. The fact that he advertises his Messiah chips to both groups of customers does not alter the fact that he promotes and advertises all of it to customers in this country. That is a breach of s 296ZD. ’ It should be stressed that these two cases were brought under different legal jurisdictions. The law at point in the case of Stevens v.

Kabushiki Kaisha Sony Computer Entertainment is the Copyright Act 1968 and Copyright Amendment (Digital Agenda) Act 2000. The issues raised under these laws were whether the system of Sony is to be considered a technological protective measure and whether circumvention of this was facilitated by a circumvention device. The High Court in the case ruled in the negative and therefore had the effect of reinstating the decision of the primary judge. Moreover, the issue of reproduction in RAM was raised to which the Court negated as being impossible for the storage of the game code and that it is not in ‘material form.

’ The reproduction of cinematograph film was also negated considering that Sony failed to present evidence on substantiality. In the case of Kabushiki Kaisha Sony Computer Entertainment Inc. and Others v Ball and Others, the law in point is mainly s 296 of the Copyright, Designs and Patents Act 1988 before it was amended on 31 October 2003 as well as, s 296, 296ZA, ZD and ZF after it was amended. It was held that the Messiah chip is a technical device for infringing copies. Albeit, defendant countered that it is for reproduction of back-up copies, the Court ruled that if this is true, still it did not have the authorisation of Sony.