Stevens v Kabushiki Kaisha Sony Computer Entertainment

The High Court of Australia heard an appeal concerning alleged contraventions of section 116A of the *Copyright Act 1968* (Cth). The appellant, Mr Stevens, was accused of knowingly selling and installing "mod chips" into PlayStation consoles, which enabled the playing of unauthorised copies of games. The respondents, collectively referred to as Sony, manufactured and sold PlayStation consoles and games, asserting copyright in the computer programs and cinematograph films embodied in these games. Sony contended that Mr Stevens' mod chips facilitated the circumvention of technological protection measures embedded in their games and consoles.

The central legal issues before the High Court were whether the access codes on Sony's CD-ROMs and the boot ROM within the PlayStation console constituted "technological protection measures" as defined by the Act. Specifically, the Court had to determine if these measures prevented or inhibited copyright infringement by preventing access to unauthorised copies of games. Further questions arose regarding whether parts of a computer program reproduced in the random access memory (RAM) of a PlayStation console constituted a "material form" for the purposes of copyright, and whether the access codes and boot ROM prevented the reproduction of substantial parts of copyright works in RAM.

The High Court allowed the appeal, setting aside the orders of the Full Court of the Federal Court. The Court reasoned that the definition of "technological protection measure" in section 10(1) of the Act required that such a measure must prevent or inhibit infringement of copyright. While the access codes and boot ROM prevented the playing of unauthorised copies on unmodified consoles, they did not prevent the making of a perfect copy of the copyright material itself. The Court found that the measures did not prevent or inhibit infringement in the manner contemplated by the Act, particularly in relation to the reproduction of copyright works in RAM. The Court concluded that the interpretation adopted by Sackville J at first instance was correct and should not have been disturbed.