Appeal Court: Mod chips infringe game copyright after all
Even if it is only a little bit at a time
A man who sold computer chips that enabled pirated video games to be played on consoles was rightly convicted of copyright offences, the Court of Appeal has ruled.
Christopher Paul Gilham sold the devices - called mod chips because they modify a console - to people who were able to use them to play unlicensed copies of video games.
The Copyright, Designs and Patents Act (CDPA) makes it an offence to sell or distribute "any device, product or component which is primarily designed, produce, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures".
Gilham sold mod chips via a website and the Court of Appeal had to decide whether or not those devices made it possible for others to commit a copyright infringement. That would only be true if their playing of pirated games copied "a substantial part" of the work.
Gilham argued that only a small portion of a game is copied from a disc into a games console's memory at any one time, and that the amount copied at any given moment was far less than a "substantial part".
There are cases in which it has been argued that copying a 'little and often' is infringement. But those cases are inconsistent, the Court said. In one involving football broadcasting and foreign-registered decoder cards, the High Court said that only a small part of a match was held on the machine and any one time and a broadcast's copyright could not be considered on a cumulative basis.
In another case, though, the judge ruled that 'transient' copying is still copying and is still covered by the law.
Lord Justice Stanley Burton, though, said that the mod chip case did not have to be decided on the question of whether a substantial part of the whole game was copied or not. He said that constituent parts of it were copyrighted, and when substantial parts of those constituent parts were displayed, infringement occurred.
"In the present case, if the only copyright work that is copied is the game as a whole, the "little and often" would be material," he said. "But the game as a whole is not the sole subject of copyright. The various drawings that result in the images shown on the television screen or monitor are themselves artistic works protected by copyright."
"The images shown on the screen are copies, and substantial copies, of those works. If the game is the well-known Tomb Raider, for example, the screen displays Lara Croft, a recognisable character who has been created by the labour and skill of the original artist. It matters not that what is seen on screen is not precisely the drawing, because the software may cause her to be seen performing actions that are not an exact copy of any single drawing. It is clear that what is on screen is a substantial copy of an original."
"Even if the contents of the RAM of a game console at any one time is not a substantial copy, the image displayed on screen is such," said Lord Justice Stanley Burton. "As we said in the course of argument, it may help to consider what is shown on screen if the 'pause' button on a game console is pressed. There is then displayed a still image, a copy of an artistic work, generated by the digital data in [the console's memory]. The fact that players do not normally pause the game is immaterial, since it is sufficient that a transient copy is made."
"It follows that the appellant was rightly convicted of the offences charged under the CDPA," he said. "[The preamble to the EU Copyright Directive] emphasise[s] the importance of protecting copyright and related rights in multimedia products such as computer games, and if devices such as mod chips could be sold with impunity, the UK would not be conferring the protection of those rights required by the Directive."
"Secondly, it seems to us to accord with common sense that a person who plays a counterfeit DVD on his games console, and sees and hears the visions and sounds that are the subject of copyright, does indeed make a copy of at least a substantial part of the game, even though at any one time there is in the RAM and on the screen and audible only a very small part of that work," he said.
The ruling can be read here.
Copyright © 2009, OUT-LAW.com
OUT-LAW.COM is part of international law firm Pinsent Masons.
Why did the judges even go there?
There's no question that the defendant had broken the law by selling mod-chips (see section 296ZB http://www.opsi.gov.uk/si/si2003/20032498.htm#24)
What I don't understand is why the judges said:
14. In order to establish that an offence under, by way of example, section 296ZB (c)(i) of the CDPA has been committed in relation to games such as those concerned in the present appeal, the prosecution must prove:
(2) That the playing of a counterfeit DVD on a game console involves the copying of a copyright work."
as I can see nothing in the legislation that states that.
But now, thanks to the judges introducing that element, they've allowed themselves to establish this ridiculous and unnecessary new precedent.
I'm sure a jury would have shown more common-sense but they've got that covered as well:
"30. Cases that, for example, involve determination of difficult questions whether a copy is of a substantial part of a copyright work, can and should be tried in the Chancery Division before specialist judges. They can be so tried much more efficiently in terms of cost and time than before a jury, and questions of law can if necessary be determined on appeal on the basis of clear findings of fact."
I'm not even sure if I've completed one game on my original xbox (owned since 2002), but it's spent countless hours steaming video/music over samba using xbmc.
@AC - Tuesday 14:34
So my argument still stands. Because the "thing" can be used for illegal activities in one way, the "thing" is now illegal. If you can't install it, you still can't use it. The end result is the same.
This is madness, utter madness. So many "things" are dual purpose (mod chips included, despite the frothing on here). The examples people are giving of guns doesn't go into the detail.
Some guns are only fit for target shooting, their ability to kill is slight but they can still be sued for threats.
Some guns are primarily intended for hunting, although they could kill people.
Other guns are only intended for killing.
Taking this legal argument to it's conclusion, picking up a gun ("installing" it) is now illegal in the UK because it *COULD* be used for an illegal act. That is all that is need.
I *COULD* use my motorcycle to kill someone (and probably kill/serious injure myself in the process but that's beside the point). If that now illegal?
I *COULD* break a CD in half and use the broken edge as a weapon. Is breaking CDs in half now a illegal?
I'll say it again. It's not the "thing", it's not the people who sell/make/supply the "thing" it is the purpose the end-user puts the "thing" o. Go after the end-users *IF* they commit a crime. The only exception is when the "thing" is single purpose and that purpose is to commit a crime (so that's the sale of fully operational assault rifles in the UK...oh, wait, no...that's not illegal; that's positively encourage with government funding! Hey ho).
On a happier note: I am now thinking of plonking a Linux distro on this old xBox. Someone come and arrest me!
Backups: That right was effectively rescinded a while back in memory serves. You should contact the publisher for a new copy which will be supplied "at a reasonable price". I think Sony has claimed they do this with their CDs.