Sony mod-chip lawsuit leaves DVDs in the clear

A UK High Court ruling in Sony's favour against a company that made mod-chips for the PlayStation2 will have big consequences for the games industry, but multi-region DVD players are unlikely to be affected, according to lawyers involved in the case.

In a summary ruling on Tuesday, Judge Robin Jacob awarded Sony £45,000 costs and £15,000 in damages against Newport-based Channel Technology, which had been manufacturing the Messiah mod-chip. Messiah allowed owners of PlayStation2 consoles to play NTSC games on PAL consoles, allowed PlayStation2 owners to play DVD disks from any region, and provided colour correction for PAL consoles. Crucially, it also enabled PlayStation2s to play backed-up copies of games.

The case was the first to be brought under section 296 of the Copyright, Design and Patents Act 1998, which deals with devices designed to circumvent copy protection mechanisms. Section 296 makes it an offence to make, import or sell any device specifically designed or adapted to circumvent a copy protection mechanism.

In the High Court ruling, Judge Jacob, who is one of the most senior patents and intellectual-property judges in the UK, awarded summary judgement to Sony. Judge Jacob acknowledged that the part of the Messiah mod-chip that defeated the copy protection mechanism was designed with playing back-up material in mind. But, the aspect of swapping back-up disks between people would be uncontrollable, and damaging to Sony. Nobody would pay £25 to £45 for a game, said Judge Jacob, so piracy became the main factor for consideration.

The judge also referred to the issue of regioning. Regioning refers to the practice of encrypting media -- usually DVDs -- according to regions of the world so that they only work with players encoded to the same region. The practice has met such widespread opposition that hacks are readily and cheaply available for most DVD players and many manufacturer now sell multi-region players as a matter of course. Sony employs a similar mechanism for PlayStation2 games.

After the ruling, Channel Technology posted a statement on its Web site suggesting that the ruling could also have an effect on the DVD market, "as certainly the licensing aspects of imported entertainment media would indeed come under the scrutiny of the Sony vs Channel Technology case." But lawyers on both sides said that regioning of DVDs is unlikely to be affected.

Julian Watts, partner at Bristows, the city law firm that acted for Sony in the case, said a precedent has been set "in terms of what you can and can't do with chipping PlayStations." Watts said the case was first and foremost about piracy, "with arguments bolted on about imports." The judge's views on imports, said Watts, were his views rather than a finding. "This was a case about mod-chips."

The case had been put to the judge, said Watts, that the one thing a person could do with the Messiah mod-chip was to play imported games. "But it is irrelevant in this case whether this is legitimate or not because the predominant use of the mod-chip was for playing pirated software."

Concerns over the future of multi-region DVD players surfaced because Judge Jacob said that Sony licensed games for the territory that they were issued, and the licensing of these games did not allow for their use in other territories.

Therefore, he said, whether they were imported for private and domestic use by personal purchase, for instance via the internet, or purchased abroad on holiday, they were not allowed by Sony to be played outside of the licensed territory.

However, noted Justin Watts at Bristows, these comments were preliminary views made on issues the defendants put before him.

Channel Technology's barrister, Jacob Dean QC, told ZDNet UK it is difficult to draw wide conclusions from the preliminary views. But, he said, the decision may have ramifications. "This was a senior judge of the High Court with a lot of experience on copyright giving his views on the matter, so it is of importance."

"The judge's preliminary view was that if a person bought a PlayStation game in Japan or the US and then imported that for private and domestic use into the UK, then the use would be an infringement of Sony's copyright," Dean said. But, he noted, "the judge was focusing on the rights of Sony in regards to the specific means by which it prevented unauthorised copying." It was difficult to say, he added, whether this would also apply to DVDs.

Both sides said it is difficult to be more specific until the transcript of the judgement is available, which is expected to be some time next week.

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