In a opinion handed down September 11th, but reported in this week's BNA PTCJ, Sony Computer Entertainment America Inc. v. Devino Inc., Judge Claudia Wilken (N.D. Calif.) granted summary judgment and a default judgment to Sony in a DMCA case involving its Playstation 2, HD Loader (here is a link to wikipedia on the product), mod chips, and whether valid downstream defenses get one off the hook for a Section 1201 violation. The answer to that last question is no. One defendant proceeded pro s (the summary judgment), while the corporate defendants had default entered for lack of counsel (among other reasons).
HD Loader is software that allows consumers to play games on the PS2 on an optional hard drive peripheral. Games are stored on the hard drive, from which they are more quickly accessible than waiting around for the PS2 console to read data off the disc. Sony had a different view of their utility. Defendant also sold mod chips that could alter the play of the games.
The DMCA claim was over the PS2 authentication process, which was held to be a "technological measure" within the meaning of the DMCA. The primary purpose of defendant's products was held to be to circumvent the authentication process. The interesting part of the opinion is the court's finding that defendant's products may be used in a manner that constitutes fair use by consumers and which would constitute reverse engineering under Section 1201(f). Nevertheless, the court held that "downstream consumers' lawful or fair use of circumvention devices does not relieve [defendant] from liability for trafficking in such devices under the DMCA," citing 321 Studios v. MGM Studios, Inc., 307 F. Supp.2d 1085, 1097 (N.D. Cal. 2004); United States v. Elcom, Ltd., 203 F. Supp.2d 1111, 1120 (N.D. Cal. 2002).
321 Studios itself cited the Second Circuit's Corley opinion, which construed Section 1201(c)(1)'s language "nothing in this section shall affect ... defenses ... including fair use" as relevant only to post-circumvention activity. In straight copyright infringement actions involving secondary liability, downstream use has been relevant on occasion. For example, in the Betamax case (where Sony was a defendant), Sony got off the hook because of what the downstream consumers did. By excluding such possibilities under the DMCA, the DMCA has indeed become an uber-protectionist piece of legislation.
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8 comments:
A friend emailed me asking about how the Federal Circuit's opinion in Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004) (involving garge door openers) fits in with this case. As I read Chamberlain, it analyzed the nature of the circumvention measure, specifically the requirement it imposed that there be a reasonable relationship between the access prohibition measures and the rights granted in Section 106. There is the following footnote 14, though:
We do not reach the relationship between § 107 fair use and violations of § 1201. The District Court in Reimerdes rejected the DeCSS defendants' argument that fair use was a necessary defense to § 1201(a), Reimerdes, 111 F.Supp.2d at 317; because any access enables some fair uses, any act of circumvention would embody its own defense. We leave open the question as to when § 107 might serve as an affirmative defense to a prima facie violation of § 1201. For the moment, we note only that though the traditional fair use doctrine of § 107 remains unchanged as a defense to copyright infringement under § 1201(c)(1), circumvention is not infringement.
There is a threshold question here that no case has effectively addressed -- are Sony PS2 games protected by a technological measure? My understanding is that the games on PS2 optical disks are stored "in the clear". PS2 consoles, however, look for an additional indicia of authenticity on the disk (written in an area that CD burners are generally not able to address), before they will load the game.
If that's right (and someone please correct me if that understanding is wrong), then I don't see how the PS2 games are properly protected by 1201. See Lexmark v. SCC.
This analysis was explained in much more detail in the Australian high court decision in Sony v. Stevens. The trouble in the U.S. modchip cases is that none of the defendants appear to have had the resources to hire credible experts to explain the technology to the court (at least that's my guess).
This seems to be fairly along the lines of the bnetd case (Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005)). There too, a technological measure with myriad purposes but which also included the ability to bypass an authentication system was held to have this as its primary purpose. It's troubling that courts continue to see this...certainly in the bnetd case they were wrong as a matter of fact, and it seems so too. Are the courts simply receiving bad briefing by the doubtless less costly counsel for the defendants, or are the courts simply inclined to see things more along the lines of larger corporate interests?
This is also bad for innovation...as myself and others have pointed out, (Shameless plug: Zvi Rosen, Mod, Man, and Law: A Reexamination of the Law of Computer Game Modifications, 4 CHI.-KENT J. INTELL. PROP. 196 (2005)) the mod community is the most vibrant source of innovation in gaming today, and especially in the PC industry, serves as a proving ground for young developers (much like indie films) and also a cheap source of products for game publishers who snap up these freely-distributed products. These decisions are exactly the sort of anti-innovation rulings feared when the DMCA was first debated.
Mod-chips circumvent illegally in England as well as in Australia:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2004/1738.html&query=sony+&method=all
The vibrancy of the mod market and the various other hacks for games speaks to the need for the content owners to accommodate uses that are technically infringing but either hugely helpful in selling legitimate goods (mostly through promotional value although its easy to suspect that some mods could drive actual unit sales of the underlying games that would not have been bought otherwise) or that differentiate the platform itself against its competitors. I expect accommodations are going on in the business for mods and other game hacks. I think it’s extraordinary, though, how companies in a position like Sony frequently avoid overt management decisions balancing the interests of their enforcers and those of their marketing groups. Sony spends a huge amount courting serious gamers, the same folks who are the only ones capable of taking advantage of most of the hacks out there.
It’s also to me a great example of the frustration of enforcement efforts when the profit motive of the infringer is negligible. It’s great not to have to defend against highly skilled lawyers and win on every point, but if the defendants collapse as loosely as these, one is left with the suspicion as a manager that taking them out of the market will be of no consequence whatsoever and so it was all an exercise with little purpose at significant cost.
Two points:
(1) to the extent there is a first amendment distinction between "functionality" and speech as laid out by Judge Kaplan's Reimerdes opinion, this product pretty clearly falls on the functionality side of the line.
(2) Chamberlain and Lexmark deal with situations where the technological measures and access controls solely related to the ability of a user to operate a machine for its permitted, licensed uses - raising fair use issues (and reciprocal copyright misuse issues); whereas here, the accused technological measure directly affects copyrighted works and the ability to use unauthorized copies of games.
Thus, this isn't as troubling an application of the DMCA as Fred suggests. In addition, Fred, why does a technological measure that restricts access have to be encryption? Keep in mind that in Real v. Streambox, a one bit "do not copy" flag was enough to trigger DMCA protection.
I certainly believe that the DMCA could have been drafted better, and that there may be applications of the DMCA are overbroad and can result in economic harm to competition and consumers. But the courts have been willing to step in when they believe such an issue arises. This case, though, isn't one of them.
In addition, Fred, why does a technological measure that restricts access have to be encryption? Keep in mind that in Real v. Streambox, a one bit "do not copy" flag was enough to trigger DMCA protection.
It's not whether it's encrypted or not, it's whether there is *any* restriction on access to the copyrighted work. Where the PS2 games are involved, it does not appear that there is any such access control here. As the Lexmark case recognized, you can't lock the back door while leaving the front door open and claim that you have restricted access to the house.
As for the Streambox opinion, while I think the court's analysis of the spoofing of the handshake is at least defensible under the language of the statute, the court's analysis of the "no copy flag" is entirely unsupportable, especially in light of the "no mandate" provision in 1201(c)(3).
Jim Morrison immortalized the back door, which was opened for him, the front door being too dangerous.
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