UK Court Condemns the Sale of "Mod Chips" for Video Game Consoles

The UK Court of Chancery recently held that the act of selling modification chips for the Sony PlayStation 2 is illegal. Highlights of the decision (Kabushiki Kaisha Sony Computer Entertainment Inc et al v. Ball et al, [2004] EWHC 1738 (Ch)), include a finding that a copy of software in a computer's RAM is a copyright-infringing copy, even though the copy exists "ephemerally", that is, only for a very short time. This argument could not be made in Canada, as the Canadian Copyright Act specifically excludes from infringement copies made by a program during its execution. However, the decision is based on a newly adopted European Union Directive on Copyright, which has no such exception. Thus, in the UK, RAM that contains a copy made during execution is a reproduction in a material form, and is caught under the UK Copyright, Designs and Patents Act, 1988. A defence raised was that since a user has a right to make a backup copy of legally licensed software, the mod chip was simply a mechanism that permitted the user to back up the game. The UK statute, like its Canadian counterpart, permits this form of copying. However, the Court found that since the software was stored on robust, unchangeable media (CDs or DVDs) and since Sony would replace any defective discs on request, there was no need for users to create a backup copy. The decision can be seen as part of a broader, world wide trend clamping down on the distribution and sale of mod chips. There have been a number of decisions in the US under the Digital Millennium Copyright Act against mod chips. A decision in Canada also condemned the practice. In July 2002, the Ontario Court of Justice imposed a sentence of 12 months' probation and a $17,000 fine for violating the Copyright Act and the Criminal Code. There have also been judgements against mod chip distributors in Belgium and Australia. For the full text of the UK decision, see: www.courtservice.gov.uk/judgmentsfiles/j2680/sony-v-ball.htm. For other references in the UK and Canada, respectively, visit: www.theregister.co.uk/2004/07/21/ps2_mod_chip_win/; and http://www.justice.gc.ca/en/dept/pub/jc/vol3/no1/page4.html. Summary by: James Kosa