Mr Modchips – criminal circumvention charges reversed in the UK

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.

at [21].
at [35].