Feeds

Appeal Court: Mod chips infringe game copyright after all

Even if it is only a little bit at a time

Boost IT visibility and business value

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.

Build a business case: developing custom apps

More from The Register

next story
Hello, police, El Reg here. Are we a bunch of terrorists now?
Do Brits risk arrest for watching beheading video nasty? We asked the fuzz
UK fuzz want PINCODES on ALL mobile phones
Met Police calls for mandatory passwords on all new mobes
Munich considers dumping Linux for ... GULP ... Windows!
Give a penguinista a hug, the Outlook's not good for open source's poster child
EU justice chief blasts Google on 'right to be forgotten'
Don't pretend it's a freedom of speech issue – interim commish
Detroit losing MILLIONS because it buys CHEAP BATTERIES – report
Man at hardware store was right: name brands DO last longer
Snowden on NSA's MonsterMind TERROR: It may trigger cyberwar
Plus: Syria's internet going down? That was a US cock-up
UK government accused of hiding TRUTH about Universal Credit fiasco
'Reset rating keeps secrets on one-dole-to-rule-them-all plan', say MPs
Caught red-handed: UK cops, PCSOs, specials behaving badly… on social media
No Mr Fuzz, don't ask a crime victim to be your pal on Facebook
e-Borders fiasco: Brits stung for £224m after US IT giant sues UK govt
Defeat to Raytheon branded 'catastrophic result'
Yes, but what are your plans if a DRAGON attacks?
Local UK gov outs most ridiculous FoI requests...
prev story

Whitepapers

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.
Top 10 endpoint backup mistakes
Avoid the ten endpoint backup mistakes to ensure that your critical corporate data is protected and end user productivity is improved.
Top 8 considerations to enable and simplify mobility
In this whitepaper learn how to successfully add mobile capabilities simply and cost effectively.
Rethinking backup and recovery in the modern data center
Combining intelligence, operational analytics, and automation to enable efficient, data-driven IT organizations using the HP ABR approach.
Reg Reader Research: SaaS based Email and Office Productivity Tools
Read this Reg reader report which provides advice and guidance for SMBs towards the use of SaaS based email and Office productivity tools.