Reference:  EWHC 1738 (Ch)
Court: Chancery Division
Judge: Laddie J
Date of judgment: 19 Jul 2004
Summary: Copyright - Copyright-protection - Circumvention - CDPA 1988, s.296 - 'infringing copies' - 'sole intended purpose' - CDPA 1988, ss.296ZA-ZD
Instructing Solicitors: Bristows for the Claimants; Sarjeant & Sheppard for the Defendant.
Sony uses a copy-protection system for its PlayStation 2 (‘PS2’) games console, whereby the CDs and DVDs containing the software incorporate sectors of encrypted data. Without the encrypted data, the consoles will not allow the software to be used. The Defendants designed and marketed a modification or ‘mod-chip’, which bypasses the copy-protection system by making it appear to the consoles that the necessary encrypted data is always present.
Sony brought an action for breach of copyright under ss.296 and 296ZA-ZD of the CDPA 1988, and applied for summary judgment against the first Defendant, Ball. Ball argued that he was not liable under s.296 as the mod-chip was not used to make infringing copies within the meaning of the section and its ‘sole intended purpose’ was not to circumvent the copy-protection mechanism, but rather to allow back-up copies to be made and games from other regions to be played.
(1) Whether the mod-chip was used to make infringing copies.
(2) Whether the mod-chip’s ‘sole intended purpose’ was to circumvent the copy-protection mechanism.
(3) Whether the mod-chip was intended to circumvent technological measures to protect copyright works, contrary to s.296ZA.
(4) Whether Ball had committed any of the proscribed acts under s.296ZD.
(1) The silicon chips inside PS2s on which infringing copies of copyright works are briefly stored are articles, and accordingly are infringing copies. However, many of these copies may be outside of the jurisdiction. s.296 only applies to infringements within the jurisdiction. Accordingly Ball’s liability depends on the extent to which he has sold to UK customers, which cannot be determined on a summary judgment application.
(2) The activities which Ball suggests the mod-chip was designed for are not authorised by Sony, and are in fact what the copy-protection mechanism was designed to prevent.
(3) There was no defence to the claim that
the mod-chip was intended to circumvent technological measures to protect copyright works.
(4) s.296ZD was a tort of strict liability, and Ball had no defence to it.
Although this judgment does not make new law, it does confirm the illegality of dealing in and manufacturing ‘mod-chips’. It is also interesting in finding that ss.296ZA-ZE create a strict liability tort, lack of knowledge of infringing use being no defence; and in finding that an article need only transiently contain a copy to be an infringing copy. Note that, perhaps surprisingly, mod-chips have been held lawful in Spain and Italy.