Protection Measures And Chippers: New Laws But Do They Help Gaming Companies?

In late 2005, gadens lawyers represented Sydney businessman Eddie Stevens who won a landmark case against Sony in the High Court that was widely-viewed as a win for gamers and chippers. Since that case, new legislation has come into force, and more legislation is being proposed, that gaming manufacturers like Sony hope will close the loophole created by Eddie's win.

As the lawyers for Mr Stevens, we are continually asked whether the new legislation will result in the closure of Eddie's operations and those in similar situations. Our view is that the new laws are not clear enough for Eddie to be shut down. But beware, the new legislation now makes using, not just selling, a circumvention device illegal.

Despite what has been publicised in the media by gaming companies in Australia, the proposed changes to the Copyright Act relating to protection measures and circumvention devices may not be the death of "chipping" and other activities undertaken by gamers in Australia. Further, the new legislation may be unconstitutional in that the Federal Government may be overstepping its power by enacting new laws that prohibit acts which are not related to copyright.

The new draft legislation proposes that changes to the definition of a protection measure will increase the incidence of infringement for users and sellers of devices used to circumvent protection measures and increase the penalties imposed on people who breach the Copyright Act.

Despite what many commentators believe, the definition of a "technological protection measure" has not substantially changed. The new legislation still requires that for a protection measure to be effective, it must "prevent or inhibit" copyright infringement. Therefore, it remains identical to the legislation faced by Eddie Stevens.

The only real change which will affect the judgment is the change in the definition of "material form" that was implemented in early 2005. Under the old definition of "material form", a copy of a computer program or film made by a computer in RAM was not an illegal copy. The new definition makes such a copy illegal but only if what is copied into RAM is "substantial".

If playing a Playstation game does not result in a "substantial" copy being made in the RAM of the computer, then nothing has really changed. It is important to note that in the Stevens case, the High Court held that Sony failed to establish that a "substantial" amount of a film or game was copied into the RAM of a Playstation console.

But assume Sony is right….if a protection measure is attached to a copyrighted movie or game today, then "chipping" to circumvent it will be illegal. But it will stay illegal forever, long after the movie or game has lost copyright protection. So, because of the way the Act is now drafted, it has the indirect effect of extending copyright forever, at least where a protection measure is available. This raises a constitutional issue; is the government legislating to prohibit acts that have nothing to do with copyright (something it cannot do)?

So what now? Until a company like Sony takes on another person like Eddie Stevens, the law will remain uncertain. One thing is for sure though… this fight is sure to last a while longer.

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