inamerrata

Via IP Wars, seems there’s been some oral argument in the High Courty on the Sony v Stevens case (ie, is it okay to sell PlayStation modchips, whether you’re using the modchips to play imported games, or pirated games?). Justice McHugh raises some good points. Here’s a notable exchange:

McHUGH J: But you seem to be converting the ensuring of access into a right to access, rather than as a means of protecting your copyright. Why should the Copyright Act be concerned with giving you sole rights of access as opposed to ensuring that you can use means concerned with access to protect your copyright?

GUMMOW J: That is the new dimension that is going on, is it not?

MR CATTERNS: Yes, your Honour. That is the debate. We have now committed ourselves under the free trade agreement to control access without any question of infringement, a la America — apparently, we have got to do that within two years — we have given your Honours the reference to that. But, your Honour, what protects us, as this is worded now, from your Honour’s idea, is the words “infringement of copyright”. So this is not giving the copyright owner a new right to control access. It is giving the owner a right to control access so as to prevent infringement.

[..]

Your Honour, on our construction, we do not have a pure right to control access. The control of access is a means to prevent or inhibit infringement.

There’s also an interesting section earlier when Justice McHugh discusses the possibility of an entirely reverse-engineered console, that happens not to implement the access restrictions the PS2 does. Mr Catterns wishes to call the entire device a circumvention device in that case, but appears not to believe such an argument mightn’t be possible. That’s got some relevance to Linux DVD players:

McHUGH J: Can I just ask you about this question which has been troubling me. On the view of the Full Court, their construction only prevents or inhibits the infringement of copyright when it is used on the copyright owner’s machine or on your machine. Let me give you an illustration. Supposing this appellant had not only sold the circumvention device but had also sold a reverse engineered device of your console, you would have no case, would you? In other words – – –

MR CATTERNS: Well, your Honour, that might leave us an argument about whether the access code itself alone could be a technological protection measure, which is not this case, but we would submit that is precisely what this new machine is doing, your Honour’s hypothetical machine. It is just the same as one of our consoles with a circumvention chip in it, because that is what it is. It will have all of the same other devices inside it, but instead of a Boot-ROM which looks through the access code and says, “I won’t play the game if it’s not present”, it will write a rival Boot-ROM which does not do that. Your Honour, I would submit that in that case the whole new console would be a circumvention device.

McHUGH J: No, but the point is that it does not prevent or hinder the infringement. I mean, the argument of the Full Court is in a practical sense it makes the infringement useless, therefore it prevents or hinders it, but if you can reverse engineer another console, then you can play, so it does not prevent infringing. Your device does not prevent infringing in any practical sense.