This is an appeal in the High Court made by appellant, Eddy Stevens from the decision of the Full Court of the Federal Court of Australia issued on 30 July 2003 in a case initially filed by Kabushiki Kaisha Sony Computer Entertainment with the primary court under trial judge Sackville J. Sony Play Station is one of the popular computer games platform or consoles in the market. Playing a game would mean inserting the disc/ CD ROM into the play station.
It has a Regional Access Coding (RAC) and is read by a chip known as RAC/ Boot Rom. Thus, a game that is purchased in the U. S. cannot be played in a play station purchased in Australia or elsewhere. Moreover, any unauthorised copy of a version of a game cannot be played in the play station as it does not have the necessary coding embedded in the copy. ‘Mod chips’ or converter were devised allowing games purchased from other regions and those copied to be played in a play station.
The factual backdrop of the case is as follows: Sony sued Stevens and sought a declaration of contravention, damages, an injuction and civil relief under s 116D of Copyright Act 1968. According to Sony, Stevens without authorization and permission, had knowingly sold ‘circumvention device’ which had the ability to circumvent and facilitate the circumvention of a ‘technical protection measure’ which served to protect the copyright of the computer programs which are considered by it in the nature of literary works and cinematographic films within the purview of the Copyright Law.
In the first instance or primary level, Sony failed in the three issues. However in the Full Court, Sony’s arguments on the first issue succeeded but not in the second and third issues. Sony contends that the device, boot ROM in the play station console and the access code in the CD-ROM was a ‘technological protection measure’ (TPM) and therefore the mod chips of Stevens have circumvented this measure.
The device prevented the ‘reproduction in the RAM of an unmodified play station console a substantial part of the specific part of the program to be contained in the unauthorized copy. ’ The device falls within the purview of the definition of TPM considering it prevents the ‘making in the RAM of an unmodified play station console a copy of a substantial part of a cinematograph film embodied in the unauthorised copy of the play station CD-ROM by playing the CD-ROM in that console. ’
At the first instance, Sackville J. rejected all these claims and ruled that the protective device did not constitute a TPM because it merely inhibits or discourages copying the games but does not affect the ability to copy games as it is not designed to prevent copyright infringement. Moreover, the device was not designed to prevent copying in a ‘material form’ since the storage part of the play station game ‘was not a form of storage from which the PlayStation game, or a substantial part of it, can be reproduced without modifying the console.
’The cinematograph contention cannot also be upheld considering that the ‘ device was not designed to prevent the copying of the computer game as a "cinematograph film", because the portion of the PlayStation game that was stored in the console's RAM during the playing of the game was not a "substantial part" of the "aggregate of the visual images" that constitute a cinematograph film. ’ Moreover, Sackville J ruled that there is insufficiency of evidence since one ‘cannot conclude that the computer game's "images are capable, when the RAM is used in the console, of being reproduced from the RAM. "