Feeds

Appeal Court: Mod chips infringe game copyright after all

Even if it is only a little bit at a time

The essential guide to IT transformation

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.

The essential guide to IT transformation

More from The Register

next story
Britain's housing crisis: What are we going to do about it?
Rent control: Better than bombs at destroying housing
GCHQ protesters stick it to British spooks ... by drinking urine
Activists told NOT to snap pics of staff at the concrete doughnut
Top beak: UK privacy law may be reconsidered because of social media
Rise of Twitter etc creates 'enormous challenges'
What do you mean, I have to POST a PHYSICAL CHEQUE to get my gun licence?
Stop bitching about firearms fees - we need computerisation
Ex US cybersecurity czar guilty in child sex abuse website case
Health and Human Services IT security chief headed online to share vile images
We need less U.S. in our WWW – Euro digital chief Steelie Neelie
EC moves to shift status quo at Internet Governance Forum
Oz biz regulator discovers shared servers in EPIC FACEPALM
'Not aware' that one IP can hold more than one Website
prev story

Whitepapers

Endpoint data privacy in the cloud is easier than you think
Innovations in encryption and storage resolve issues of data privacy and key requirements for companies to look for in a solution.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Advanced data protection for your virtualized environments
Find a natural fit for optimizing protection for the often resource-constrained data protection process found in virtual environments.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.
Next gen security for virtualised datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.