Oz mod-chip seller to take Sony to High Court

Appealing against the appeal

Australian PlayStation 2 mod-chip supplier Eddy Stevens is taking Sony to court in a bid to reverse an appeal court decision made last year which backs the consumer electronics giant's claim that such chips infringe copyright law.

Stevens was originally sued by Sony in 2002, essentially for facilitating games piracy, but the Federal Court ruled that selling, installing and using mod-chips does not necessarily violate copyright. The result was not so much a victory for Stevens as a case of Sony failing to show that its PS2 security system was a "technological protection measure" under the terms of Australia's copyright legislation, specifically the 2000 Digital Agenda Amendments to the Copyright Act.

In July 2003, Sony appealed against the verdict, and the Full Court of the Federal Court ruled that Stevens' chips did violate copyright law. It thus became illegal to sell mod-chips down under, but curiously not unlawful to use them.

Now the case is set to return, this time to the High Court, as Stevens seeks to challenge last summer's judgment. According to Stevens' lawyer, Michael Bradley, in an Australian Associated Press report, the mod-chip seller will maintain that the court must acknowledge the legitimate uses of such parts - to make back-ups, and to play games and DVDs legally purchased outside Australia - and so permit them to be sold for these uses.

For the same reason, the US appeal court last month upheld a lower court ruling that P2P software providers could not be held liable for users' illegal activity. It should remain legal to offer P2P software, the court ruled, since the code has legitimate uses.

Such a verdict still leaves mod-chips infringing the copy-protection circumvention legislation, and the High Court will undoubtedly be asked to rule on this paradox too.

The case is expected to be heard in the High Court in March 2005. ®

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