[Free-sklyarov-uk] Modchips ruled legal in Australia.

[Martin Keegan]

On Fri, 26 Jul 2002, Dan Ackroyd wrote:

> Thus the fact that the data stored in the RAM can be used, .., to reproduce
> the visual or caption content data does not mean that the computer program
> can be reproduced in a material form." 
> 
> Would this argument be applicable in the UK ?

No.

I've now read the whole judgment. Australia's legal system is practically
the same as that of the UK, and the facts in the case were almost
identical to Sony v Owen (the Channel Technology mod-chipping case over
here). What's different is the technicalities of Australian copyright law.

Under Australian and UK copyright law, copyright regulates the
reproduction of a work "in a material form". These words are used in
the Australian Copyright Act 1968 s31(1)(a)(i), and in the UK Copyright
Designs and Patents Act 1988 s17(2).


Under UK law, transitory copies (such as those in RAM) are explicitly
covered by s17(6), which defaults to treating them as regulated by
copyright (and thus requiring permission of the rightholder). In the case
of computer programmes, this is overridden by s50, which removes the
rightholder's control over certain necessary activities such as backups,
reverse-engineering for interoperability, and anything else you might need
to do just to use the programme (such as copying it into RAM). In some of
these cases it even overrides EULAs.

A technicality of s50 is that you have to be a so-called "lawful user" of
the copyrighted work (a complicated notion since copyright is supposed to
regulate copying and distribution, not use). What the law is trying to say
here is "if the rightholder has already said you can have the CD, then
they can't turn round and say you can't use it, but if the CD is nicked or
a pirate copy or something, then you still need permission to use it,
which you probably won't get". Annoyingly, due to another technicality,
privately imported copies of PS games fall into the "still need
permission" category, even if they were bought in the normal way overseas. 
This latter point is how the law is currently thought to work, though it's
still under dispute.

The US law explicitly has a "transient copies are covered" provision in
the Copyright Act, but I don't know much about it.


Under Australian law, the position on transitory copies has been
established by case law to a greater extent than in the UK or US. Very
roughly speaking, a transient electronic copy is held by default NOT to be
in "a material form" if it's not feasible to copy it. This probably
distinguishes between PS2 RAM, which ordinarily is inaccessible, and your
ISP's web cache, which *is* (for their sysadmins).

In the Australian modchipping case, the defendant lost (on trademark
infringement, as it happens), but won on the circumvention device issue,
probably due to the intervention of the Australian federal government's
competition authorities. It was held that yes, he'd produced a
circumvention device for a technological protection measure, but that
there was no legal protection for the technological protection measures in
a PS2 console because they didn't qualify for protection as they didn't
prevent or inhibit copyright infringement, the copies in RAM not being in
a material form, and thus unregulated even when imported, nicked or
pirated. 

Mk