Last Thursday Sony commenced proceedings in the Federal Court seeking an injunction to prevent the sale and distribution of a “mod chip” for the Sony Playstation 3 games console. The mod chip, referred to as a “PS Jailbreak”, is claimed to be the first of its kind in the world, and runs from a USB stick.
The Court granted an ex parte interim injunction on Thursday against four alleged distributors of the PS Jailbreak. Yesterday afternoon the Court extended the injunction until Friday 3 September, when the parties will return to Court for further argument on whether the injunction should continue. Sony is also seeking that the defendants provide it with a number of the Jailbreak devices for analysis.
According to the website of one respondent (OzModChips.com), the PS Jailbreak enables a user to copy games directly to the PS3’s hard drive, run games from the console’s hard drive without inserting the original disc, and install third party applications and programs not developed or authorised by Sony (known as “homebrew” applications).
Questions regarding the legality of mod chips are not new to the courts in Australia. The central legal issue is usually whether the mod chip is trying to get around a “technological protection measure” (TPM) – a measure designed to restrict access to a computer program, film or song (eg the restrictions applied by Apple to songs purchased through iTunes). The Copyright Act generally prohibits the manufacture, distribution or sale of a device which circumvent TPMs, except in limited defined circumstances.
In 2005, the High Court ruled that mod chips developed for the original Playstation console did not breach the anti-circumvention provisions of the Copyright Act as they stood in 2001. However those provisions were amended in 2005 to alter the definition of a TPM, and again in 2007 to comply with Australia’s obligations under the Australia-United States Free Trade Agreement (for more information see Mallesons’ client alerts here and here).
Earlier this year, Nintendo settled proceedings it had instituted against a distributor of mod chips for the Nintendo DS games console. As part of that settlement, the distributor, RSJ IT Solutions, undertook that it would cease importing and distributing the mod chips, and paid Nintendo $520,000.
