Case Note: Kabushiki Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157 (30 July 2003) (Federal Court of Australia)

In a recent Australian case, Sony successfully argued that the defendant competitor's attempts to circumvent the security device on Sony's PlayStation console were actionable.   However, in passing, the Court dealt with an alternative claim for relief based on copyright infringement.   The Court wrestled with the important question whether a computer in operation can make a reproduction in a "material form" of a computer program, thereby constituting infringement. Sony sued a manufacturer of "modchips", i.e. devices designed to permit the execution of non-Sony software on the Sony PlayStation console. By a slim majority, the Court ruled that the copying of small portions of the Sony software program to the computer's random access memory (temporary memory used to execute the program, or RAM) did not constitute a material reproduction because, on the facts, it would not be possible to reconstruct the original code from the electrical impulses in RAM.   That is, machine-level code fragments derived from the original code would not be protected by the copyright in the software program. Containing a vigorous dissent, the reasons for judgment are interesting and discuss the existing common law in both the US and the UK. For the full reasons for judgment, see: http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/157.html. Summary by:  James Kosa