I am about to run a presentation at Linux.conf.au 2009 in Hobart. I want to particularly talk about Section 47D of the Copyright Act 1968 (Cth). Section 47D was a great affirmation of the right to reverse engineer computer programs for interoperability. One especially important feature is that 47D, thanks to s 47H, is not excludable by contract. In the United States, we have seen numerous examples of developers inadvertently waiving their fair use and statutory rights to reverse engineer software products by 'agreeing' to the EULA.¹⁾

The really big problem with s 47D, however, is that it only applies to computer programs. This is a really big problem for those who are interested in reverse engineering media rich applications – like computer games. Because games are not only computer programs but are also cinematograph films,²⁾ sound recordings, artistic works, musical works, etc, then the right to reverse engineer (and to backup) completely disappears.

If we believe that we really ought to have a right to reverse engineer computer programs, including games, the wording of s 47D has to be changed to immunise copying of works and other subject matter intertwined with software programs.

The inflexibility in s 47D also raises problems for the exceptions in anti-circumvention law. The definition of both Access Control Technological Protection Measures (ACTPMs) and the broader category of Technological Protection Measures (TPMs) in s 10(1) of the Copyright Act excludes devices to the extent that they ”[restrict] the use of goods […] or services in relation to the machine or device.” Now, this carve-out is quite important, as it effectively excludes restrictions like the anti-competitive encoded garage door opener device³⁾ from protection as TPMs. However, because these devices are built often to have more than one function, especially in gaming consoles, this carve-out will not always be effective. This means that developers interested in making products for locked-down devices will have to rely on the exceptions to anti-circumvention law itself, rather than the definitional carve-out.

Liability for actual circumvention (ACTPMs) or for making or distributing a circumvention device (all TPMs) does not apply where the device will be used to do an act that does not infringe copyright in the computer program and is
“done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.”⁴⁾

As you can see in that wording, the ability to rely on the exception is limited by what exactly will infringe the underlying copyright interests. So without a fix to s 47D, we generally can't feel comfortable relying on the exceptions to anti-circumvention.

This also raises an important point – manufacturers and distributors of modchips need to meet the purposive test to ensure that they fit within the exception. That is, they must be able to show that the modchip will be used for non-infringing reverse engineering purposes.

My slides are available here: 200901-lca-games.pdf

In late June a decision came down (which I appear to have missed) in the England and Wales Court of Appeal quashing the conviction of Mr Modchips (aka Neil Higgs) for providing modchips in contravention of the UK anti-circumvention provisions in s.296ZB of the Copyright, Designs and Patents Act 1988 (UK).

The case, Higgs v R [2008] EWCA Crim 1324 (24 June 2008), makes for interesting reading.

The Court of Appeal held that the wording in the UK act: “prevention or restriction of acts that are not authorised by the copyright owner of that work and are restricted by copyright.” is to be read similarly to the provision in the Australian act: “to prevent or inhibit the infringement of copyright”. Accordingly, the reasoning of the High Court of Australia in Stevens v Sony [2005] HCA 58 has some application in the UK.¹⁾

The Court of Appeal concluded that a technological measure must actually prevent the infringement of copyright:

In the end, therefore, one comes back to the UK Act. Is it enough if the technological measure is a discouragement or general commercial hindrance to copyright infringement or must it be a measure which physically prevents it? To our minds the position is clear – it is the latter. Neither the Directive nor the Act would have been drafted in the way that they are if such a general form of hindrance was enough.²⁾

This all sounds like good news. Especially for Mr Modchips himself. However, the court warned that future defendants may not be so lucky, especially given that reproduction into RAM is an infringing act:

It is for those reasons we quashed the convictions. Mr Higgs is a fortunate man in that it may well be that if the legislation had been less complex and/or the Crown had had greater opportunity to consider the details of copyright law the case would have been proved on the basis that merely playing a pirated game involves making a copy in the console and thus involves infringement. He may also be fortunate that, at least this far, he has not been sued in the civil courts. There the procedure is apt to be much faster, technical slip-ups in evidence can generally be readily cured before final judgment and the remedies of damages, an account of profits, injunction and legal costs are readily obtainable. Breach of an injunction, if serious, can of course itself lead to imprisonment.³⁾

This decision places the UK law in a very similar position to the Australian law after Stevens v Sony. There is still considerable doubt as to whether modchips are legal under Australian law after the changes to the definition of 'material form'. After the changes introduced by the AUSFTA, 'Material Form' now “includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).”⁴⁾ This means that a device which prevents the playing of an unauthorised game can now be argued to prevent an infringement, rather than merely render an already infringing copy less useful. This means that the devices in the current batch of consoles may be technological protection measures, and this in turn means that modchips may now be circumvention devices, despite their usefulness for other, non-infringing, purposes.