SONY COMPUTER ENTERTAINMENT v PAUL OWEN & ORS (2002)

[Derek Fawcus]

While it's good to actually see a judgement addressing these parts of the
Copyright act,  I have to say I find some of the Judges reasoning flawed.

On Wed, May 15, 2002 at 03:24:18PM +0100, Donald ramsbottom wrote:
> Full Transcript from Law reporters, less the final part on damages.

First one question is does Section 296 even apply?  I'd have suggested
that the defendents should not have accepted that this mechanism is a
form of copy protection.  This could have been argued on the grounds
that the work was supplied to the public in the wrong form:

"296.--(1) This section applies where copies of a copyright work are
           issued to the public, by or with the licence of the
           copyright owner, in an electronic form which is copy-protected.

       (4) References in this section to copy-protection include any
           device or means intended to prevent or restrict copying
           of a work or to impair the quality of copies made."

First I'd argue that the 'form' is not electronic.  I'd suggest that
electronic means in some form of electronics!  Or possibly by electronic
communications - i.e. downloaded over some communications medium.

I'd expect the 'electronic form' to be a solid state memory device,
not a lump of inert plastic and aluminium foil (CD/DVD).

> Each game has a code embedded into the CD or DVD.
> The console looks for those codes whenever it is loaded with a disk.
> Sony have so arranged matters that these codes do not form part of
> the data which would be read by an ordinary computer accessing the
> CD or the DVD. Thus if you take a PlayStation game on a disk and
> copy it using a CD burner, the copy will not run on a PlayStation console.
> If you try and run it, you get nothing. So, it is fair to
> say that the copy which you make is impaired. 

Second I'd argue that the mechanism described does not entail a form
of 'copy-protection'.  I do not accept the Judges conclusion that the
copy of the work is of impaired quality.

The copy is of perfect quality,  it's just that the device you play it on
tries to identify who made the copy (the extra codes),  and if it find that
it wasn't made by one of Sonys 'friends' it will refuse to play it.

Assuming I built my own playstation 2,  or a Playstation 2 emulator
and happened to omit this 'copy-protection' mechanism in the box,
any infringing (or backup) copies of the original work would
operate without any impairment.

> The Defendant wishes to sell these chips in this country for customers
> to insert into consoles in this country. Sony say that such activities
> infringe their rights under Section 296 of the Copyright, Designs and
> Patents Act 1988. This provides as follows,

  [ snip - already quoted above ]

> There is no dispute that the market is almost awash with copyright works
> issued by Sony or its licensees for use on the PlayStation 2.
> So sub-section (1) applies if there is copy-protection.

See above about 'electronic form'.

> There really can be no doubt that the special codes put in by Sony fall
> within sub-section 4. They are a device or means intended to prevent or
> restrict copying of a work. The copying that is prevented is, of course,
> the loading of the game into the computer.

Huh!  But that is a non infringing copying by virtue of section 50C (1)(a).

"50C.--(1) It is not an infringement of copyright for a lawful user of a
           copy of a computer program to copy or adapt it, provided that
           the copying or adapting- 
 
       (a) is necessary for his lawful use; and 

       (b) is not prohibited under any term or condition of an agreement
           regulating the circumstances in which his use is lawful."

You need to make the copy "load the game" in order to use it,  and for
this over the shelf software,  there will be no "agreement" between the
supplier and the end user.

Also he's mixing two bits which seem wrong.  The 'copy protection' is
embedded in the playstation 2,  not in the 'form' in which the work
was distributed.

The whole of the CD,  including the 'work' and the 'embedded code' on
the CD can be copied - just use a bit for bit copy.  The fact that most
normal CD-ROM drives may not read such information,  and that most CD-R
writer cannot write such information does not prevent one from copying them.

I would just need to build something similar to the means that the
Playstation 2 uses to extract this info,  and then arrange for a CD/DVD
pressing plant to make such disc.  Access to such plants by people making
infringing copies of works (music CDs,  video CDs,  DVDs) has occurred in
the past,  and will occur again in the future.

Ergo it can be copied, it can be copied perfectly,  and hence there is
no copy protection embedded in the 'form' in which the work is distributed.

To qualify I'd expect that 'form' would need to be some sort of electronic
device which which I have to perform a handshake before I can extract the
work from it.  i.e. something like a smart card.  c.f. DVDs where this
was still done wrong,  the DVD-ROM drive does a handshake to the computer,
but there is no handshake with the DVD itself.

> So, there are two disputes: 
> 
> (1) does it matter whether or not there may be some lawful uses,
>     given that there are some which are not?
> (2) What, if any, is the extent of any lawful use.
>
> The second point is irrelevant if Sony are right on the first point.
> The first point depends solely on the language of Section 296.

  [ snip ]

> It follows that Sony's first argument is right.

As stated above,  I don't believe Section 296 Should apply,  however...

  [ Mention of Section 22 and Section 50C ]

> To my mind, those two sections do not answer the question completely.
> The real question is whether an importer of a non-PAL Sony game may
> lawfully, in the country from which it is imported, would have any
> right to play the game in this country. That depends upon the existence
> of a licence to use the copyright work in this country.

Huh?  What licence.  I only need a licence to perform actions that would
otherwise be infringing.  The simple use of a computer program does not
require a licence - by virtue of the fact that it's not explicitly stated
to need one,  and that the copies made in using it are granted by Section 50C.

If I import it for personal domestic use,  then I am the 'lawful user' of
that program.

> The games are sold, as appears to be common ground, abroad with, for
> example, 'For Japan only'. I see no reason from that to suppose that
> there is a licence for use outside Japan.

But that's simply where the copy is sold,  and relates (as I understand)
to when copyright exhaustion occurs in this copy of the work.

> In the end, it is for a licensee to prove his licence and I do not
> think any such licence is proved. Copyright is inherently territorial.
> You need a licence in every territory in which you wish to use a
> copyright work in such a way as would otherwise infringe.

> In the case of computer programs, you use the computer program when you
> load it into the machine - you reproduce the work.

Uh huh.  This it the big mistake.  Section 50C explicitly makes that copy
of the work non infringing,  hence it does not require a licence.  His
complete line of reasoning seems to collapse at this point.

> Next there is the backup argument. I have to confess I found this rather
> fanciful. Thus far, millions of Sony games have been sold around the
> world without anybody making backups. They could not make backups which
> would work until a circumvention device arrived. Reliance is placed upon
> Section 50 A which provides,

"50A.--(1) It is not an infringement of copyright for a lawful user of a
           copy of a computer program to make any back up copy of it which
           it is necessary for him to have for the purposes of his lawful use."

> "It is not an infringement of copyright for a lawful user of a copy of a
> computer program to make any backup copy of it which it is necessary for
> him to have for the purposes of his normal use".

Which is correct?  Mine says 'lawful use',  his says 'normal use'?  Is that
even relavent?

> This pre-supposes somebody having a licence - for example, to use a word
> processing program - and the physical hardware - for example, a floppy
> disk, or more likely these days, a CD rom - which enables them to operate
> their licence (particularly so in the case of floppy disks because they
> were rather fragile).

I don't operate any licence.  I make use of a work that I am the lawful
user of.  I am not performing any act that would be infringing,  hence
no licence is needed.

CD's are also fragile.  I've destroyed a couple of CD-ROMs by misplacing
them in the drive,  and causing the top (printed surface) to be scratched.
This act renders them unreadable,  and hence requires a backup.

That reminds me,  I should back up my Quake,  Quake II and Quake III CD's,  
all of which require the CD to be in the drive in order to make full use
of the program.  Also my father's copy of Quicken should be backed up,  as
for full use (audio help messages) it requires that the CD be in the drive
during use.

> So, if you got your licence and your floppy disk would not work, you would
> still have a license, but you could not operate your license. That is not
> the same thing to my mind as a man whose only licence is to use the
> particular disk concerned. That is all you get when you buy a computer
> game.

Err nope.  Licence issue aside,  I have the right to use the work.  As the
work is a computer program,  I have the right to make a backup copy,  this
would seem to be because the media is fragile.

> Copinger considered the question of what is meant by 'necessary' in the
> latest edition of Copinger & Skone James. It points out that Section 50 A
> is consequential upon Art. 5 of the Computer Software Directive, as Council
> Directive 91/250/EEC is generally called. It goes on to say,
> 
> "While the making of a backup copy is no doubt highly desirable, it seems
> arguable that it is not usually necessary. It would seem particularly
> difficult to argue that an additional copy was necessary if, as is
> normally the case, the program was supplied on a CD rom or floppy disk
> with the intention it should be copied on to the hard drive.

But here the copies are not loaded onto some other medium from which they
are generally available,  so this comparison is not valid.  These works
are copied (each time) from the CD/DVD to memory,  or even are such that
the media needs to stay in the machine for the program to operate.
In that sense they are a lot closer to the way in which floppies were
used 15-30 years ago.

> Where a program is supplied on floppy disk it is widely seen as good
> practice always to copy the original disks and to use the copies to
> install the program on to the hard drive, and user manuals frequently
> provide instructions to this effect.

But we can't make a copy onto the machine,  and need to leave the media
in the drive.

> Even in the absence of such a specific instruction, it might be possible to
> imply a licence to make such copies by virtue of custom in the trade.
> It therefore seems that unless a wide construction is given to this
> provision so that the ordinary and prudent making of a backup copy
> is protected, this section would be of virtually no application but
> the purchaser will often have the benefit of an express or implied license".
> 
> To my mind, Copinger has not quite addressed the point, which is that
> there are cases where there is a separate licence other than the obviously
> implied licence to use the article itself as embodied on a floppy or the
> like. That is the kind of situation which Section 50 A of the directive is
> aimed at.

But my reading of this quote is that Copinger has addressed the point.
Section 50A is about backups (which Copinger says).  Since we run the
program direct from the media,  a backup is 'necessary'.

The quote states that if the manual said to make a backup,  then you
could argue that I have a licence to make such a copy.

However in the absence of such a statement in the manual, or even [by
virtue of 50A (3) and 296A] in the presence of a statement that I may
not or must not make a back up,  Section 50A (1) says that I am allowed
to make a copy.

It is not up to the supplier of the work/media to make the decision
about if this is 'necessary',  50A is all about saying I can make the
decision about necessity.

> The fact is that if you spoil your CD, which has a recording of music
> on it, you have to go and buy another. The same is true of a CD carrying a
> game. Backups are not necessary at all.

But that seems to be the whole point for the existance of Section 50A,
that you can make a copy which you can use instead of the original
media just in case the original media is damaged.  It's specifically
special treatment for computer programs,  so comparing to other types
of work which just happen to share the same media is invalid.

DF