Mr Modchips Official Court Ruling Released

June 25th, 2008, 22:32 Posted By: wraggster

The court ruling for the Mr Modchips victory in the UK high court has been officially released to the public.

Points of note are:
"The prosecution contended that Mr Higgs was providing devices which enabled the circumvention of ETMs. But it is very important to understand the factual basis of the contention. It was not that the use of a modified console to play a game from an infringing CD-ROM itself involved any infringement of copyright. No attempt was made to prove that when such a CD-ROM is placed in a console, the console reads into its memory (particularly its random access memory, its "RAM") the program and copyright material included with it such as images and sound."

"# 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.

# 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.

# We were asked to certify that this case involves a question of law of general public importance. We are willing so to do. The question (agreed by Counsel) which we certify is:
Do the provisions of section 296ZF of the Copyright Designs and Patents Act 1988 in relation to "effective technological measures" apply to devices incorporated into computer games consoles and computer games which do not prevent counterfeit copies being made of such games but which do prevent the counterfeit copies from being played on games consoles?"

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