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''Stevens v Kabushiki Kaisha Sony Computer Entertainment'' was a decision of the High Court of Australia concerning the "anti-circumvention" provisions of the Copyright Act 1968. The appellant, Stevens, had sold and installed modchips that circumvented the Sony PlayStation's copy protection mechanism. Sony argued that Stevens had knowingly sold or distributed a "circumvention device" which was capable of circumventing a "technological protection measure", contrary to s 116A of the ''Copyright Act''.〔() HCA 58, ()〕 At first instance, the Federal Court (Sackville J) held that the relevant copy protection feature was not a "technological protection measure" and refused Sony's application for relief under s 116A. Sony successfully appealed the primary judge's decision in the Full Court of the Federal Court. The High Court then reversed the Full Court's decision, endorsing Sackville J's construction of the term "technological protection measure".〔() HCA 58, ().〕 == Background == The Applicant (Collectively described as “Sony”) manufacture and distribute the Sony PlayStation computer game console and computer games on CD-ROMs for use with the Sony PlayStation console. Sony owns copyright of the computer programs embodied in the CD-ROMs of the games (as literary works under Part III of the Copyright Act 1968) and in the cinematograph films (as subject-matter other than works in Part IV of the Copyright Act 1968).〔See Copyright Act 1968, (link title )〕 In the manufacturing process, Sony embedded access control technology in the form of RAC’s into all Sony’s games. This worked in the way that once a Sony PlayStation game was inserted into a Sony PlayStation console, the console would only play Sony games with the corresponding regional code. If the ROM chip in the game console did not read a RAC or the RAC did not correspond with the console, then it would not play the disk. This worked to block out illegally copied games, as when a game was conventionally copied to another CD (‘burnt’) it would not copy the RAC. However, the RAC also blocked legally copied disks〔Back-up copies of computer programs allowed in special provision in s 47C of Copyright Act 1968 (Cth)〕 and games legally purchased from different regional codes. As a result of this, a market evolved for modifications (‘mod chips’), which could override the RAC scan process in the game console, so that ‘burnt’ games could be used. Mr Stevens sold and installed ‘mod chips’ for use in PlayStation consoles, which overrode Sony’s access control technology. Stevens carried out this activity in Sydney. In addition to this, Stevens, on two occasions sold unauthorised copies of Sony PlayStation games. In 2001, Sony commenced action in the Federal Court of Australia against Stevens, alleging inter alia that he breached s 116A of the Copyright Act 1968 (Cth.) (the Act). The allegation was that the unlawful sale of devices (the ‘mod chips’) circumvented Technological Protection Measures (TPMs). Sony alleged that Steven’s ‘mod chips’ circumvented a measure that protected the applicants’ copyright in literary works (computer programs) and cinematograph films.〔, ().〕 Whether the ‘mod chips’ were a circumvention device depended on whether Sony’s RAC system was defined as a TPM within the meaning of s 10(1) of the Act. This was of particular interest to The Australian Competition and Consumer Commission (ACCC), who successfully applied for amicus curiae because of it. The ACCC thought that Sony’s RAC process interfered with imported lawfully sold copyright material in Australia by blocking the use of games purchased from different regional codes. At first instance in the Federal Court of Australia,〔Kabushiki Kaisha Sony Computer Entertainment v Stevens () FCA 906〕 Sackville J held that Sony’s RAC system did not fall within the meaning of a TPM as contained in s 10(1) of the Act. Sackville J focused his attention on the opening words of the definition, and held that Sony’s “device” was not, as such, in the ordinary course of its operation, designed “to prevent or inhibit the infringement of copyright”. Sackville J reasoned that Sony’s RAC system “merely () a general deterrent or discouraging effect on those who might be contemplating infringing copyright... for example, by making unlawful copies of a CD-ROM.” 〔Kabushiki Kaisha Sony Computer Entertainment v Stevens () FCA 906 para 15〕 Thus, Sackville J held that by not preventing the act of primary infringement in an immediate sense, Sony’s RAC system did not constitute a TPM within the meaning of s 10 (1) of the Act. Sony appealed to the Full Court of the Federal Court of Australia,〔Kabushiki Kaisha Sony Computer Entertainment v Stevens () FCAFC 157〕 who reversed the decision of Sackville J. The Full Court reached their decision, on 30 July 2003, through a broader interpretation of the meaning of TPM. The Full Court held that Sonys’ RAC system did constitute a TPM, and thus the Respondent was liable for charges based on s 115 of the Act. The Full Court made a declaration as follows:
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