[LINK] Game chipping in limbo

Viveka listmail@karmanaut.com
Fri, 28 Feb 2003 17:36:33 +1100


At 12:06 PM +1100 27/2/03, Ralph Seberry wrote:
>On Wednesday, 26 Feb 2003 at 20:08, David Boxall 
><david.boxall@hunterlink.net.au> wrote:
>  > Justice Sackville found mod-chips were legal because they overrode a
>>  device that prevented copied games from being played, but did not
>>  prevent them being copied in the first place.
>
>At the time of the decision, this was presented as mod chips
>overriding dvd-zone restrictions. Talking only about pirated games
>goes against the original judgement and the advertising for the
>mod chips (which touts them as allowing use of NTSC and DVD multizone
>games, as well as "backups")

Backups are a part of the case as well, and the right to make backups 
was one of the reasons the ACCC went in to defend mod chips. What's 
interesting is that the original case was very sweet from Sony's side 
- by finding someone who was both selling mod chips *and* infringing 
copyright (and trademarks) by selling copied games, the issues were 
presented together, and it made their contention that mod chips are 
solely or primarily intended to aid in the making of illegitimate 
copies look stronger. Fortunately Justice Sackville managed to tease 
the issues apart.

From: http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s639926.htm
>>Sitesh Bojani: Well yes, we intervened in this, as I say to protect 
>>Australian consumers' interests and essentially there were three 
>>aspects to this: we want consumers in Australia to have access to a 
>>complete range of computer games; we want them to have access to 
>>more competitively priced games; and we'd like them to be able to 
>>make use of the legal right they have under the copyright law, to 
>>make back-up copies for their own personal use.

The relevant Act is the Copyright Amendment (Digital Agenda) Act 2000:
http://scaletext.law.gov.au/html/comact/10/6223/top.htm
But it's not really human-readable in isolation, as it's a patch to 
the Copyright Act, so:

The entire 1968 Copyright Act, including the above Amendment, is here:
http://scaletext.law.gov.au/html/pasteact/0/244/top.htm

The interesting part for us is:

>>Division 4A-Acts not constituting infringements of copyright in
>>computer programs
>>
>>47B. Reproduction for normal use or study of computer programs
>>47C. Back-up copy of computer programs
>>47D. Reproducing computer programs to make interoperable products
>>47E. Reproducing computer programs to correct errors
>>47F. Reproducing computer programs for security testing
>>47G. Unauthorised use of copies or information
>>47H. Agreements excluding operation of certain provisions

All of the above are legal - on the page above, each paragraph 
heading is a hyperlink that takes you to the detail. Very nicely 
done, I reckon.

This is in addition to the the standard Fair Dealing rights under Division 3:
>40. Fair dealing for purpose of research or study
>41. Fair dealing for purpose of criticism or review
>42. Fair dealing for purpose of reporting news
And some other more specific exemptions as well.

OK, here's the point: legitimate back-up copies are explicitly legal.
Furthermore, no license agreement can take this right away from you:

>>SECT 47H
>>Agreements excluding operation of certain provisions
>>
>>An agreement, or a provision of an agreement, that excludes or 
>>limits, or has the effect of excluding or limiting, the operation 
>>of subsection 47B(3), or section 47C, 47D, 47E or 47F, has no 
>>effect.

There are various "guides" to the Act available. They are not all 
particularly helpful. For example, the Department of Communications, 
Information Technology and the Arts has a guide which does not 
mention back-up copies at all:
http://www.dcita.gov.au/Article/0,,0_1-2_1-4_13287,00.html

The University of Western Australia has a document called "Erasing 
myths about copyright" at http://www.admin.uwa.edu.au/legal/emc.asp 
that reckons:

>>4. [...] The number of back-up copies allowed is the number 
>>provided for in the terms of the particular software's licence. If 
>>the licence says that no copies are to be made then that prohibits 
>>any back-up at all. If the licence doesn't say anything about 
>>permitted copies, then you can make one copy for back-up purposes 
>>only, without falling foul of the Copyright Act

This is contrary to my reading of Section 47H. I'm not a lawyer, but 
hey, the law is written in fairly clear English.

The UWA "guide" also says that:

>>Allowances for fair use never include copying of a whole piece of 
>>software or a whole work. If you make a copy of a work and merely 
>>give it away, you may still be liable to pay damages, particularly 
>>if you have deprived an author of a sale of the work. It is not a 
>>defence that the work is not currently on the market.

Whereas section 40, Paragraph 2 of the Act *does* say that a copying 
a whole work can be fair dealing in some circumstances, and that it 
matters whether the work is currently on the market.
http://scaletext.law.gov.au/html/pasteact/0/244/0/PA000540.htm

The copyright extension lobby would like the public to think that 
restrictive licenses will always trump fair dealing rights, and that 
if a media company would prefer you not to do something, then it must 
be illegal. Fortunately, judges tend to look at the law, which says 
otherwise :)

Regards,

V.
-- 
Viveka Weiley, Karmanaut.
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