Random access memory can be unlawful
A silicon random access memory chip became unlawful within copyright law when it contained a copy of a protected work.
Mr Justice Laddie so held in the Chancery Division when allowing in part an application for summary judgment under Part 24 of the Civil Procedure Rules by the claimants, three members of the Sony group of companies against the first defendant, Gaynor David Ball.
Sony designed and manufactured games consoles, including the Playstation 2 and computer games to be played on the consoles, which contained copy-protection systems designed to prevent the copying and parallel importation of their games.
The defendants were involved, inter alia, in the manufacture and sale of an electronic chip, called “Messiah 2” which could be fitted into a Sony console enabling it to play unauthorised copies of games and games from regions foreign to the console.
When the unauthorised copy was inserted into the console, the program and other creative works were read from the disc and copied into a random access memory in the console, constituting an act of reproduction.
The claimants alleged that those activities constituted breaches of its rights contrary to, inter alia, section 296 of the Copyright, Designs and Patents Act 1988, prior to its amendment on Oct 31 2003.
Section 296 in its original form provided that the copyright owner had protection against any person who, “knowing or having reason to believe that it will be used to make infringing copies – (a) makes, imports, sells …any device or means specifically designed or adapted to circumvent the form of copy-protection employed…”.
Section 27 of the 1988 Act defined “infringing copy” as an article the making of which constituted an infringement of the copyright, subsection (2), and included an article which had been imported into the United Kingdom if its making in the United Kingdom would have constituted an infringement of the copyright in the work.
Arguing that the defendant had no real defence to its claims, the claimants applied for summary judgment.
Mr James Mellor for Sony; Mr Matthew Kime for Mr Ball.
Mr Justice Laddie said that the RAM chip constituted an article under section 27 of the 1988 Act, whether it contained the company data or not. It was always an article, but it was only an infringing article for a short time, and it became infringing because of the manner in which it was made.
Just as a transient act of copying amounted to infringement, so an article which transiently contained a copy was an infringing copy for the purpose of the legislation.
However, with regard to the exported M2 chips, since the copying into RAM occurred where the console was located, it could not be said, without further investigation, whether the sale of the chips into the export market would result in the creation of infringing copies.
If the devices were to be sold in a country where manufacture of unlicensed copies was not proscribed, and therefore not objectionable there was no compelling reason why the handling of them in the United Kingdom should be proscribed.
Insofar as the defendant had sold the chips here, he had breached Sony’s rights under section 296. However, the position in relation to all the rest of the chips was more complicated, and it followed that it could not be determined whether there had been any breach of Sony’s rights without an examination of the defendant’s commercial operations, which could not be done on a summary judgment application.
It followed that although the defendant had no defence to a number of the claimants’ claims relating to the sale of the M2 chips in the United Kingdom, other claims concerning exported chips could not be determined on a summary applications, and the allocation would be allowed in part.
Chancery Division published October 21, 2004-10-22
Kabushiki Kaisha Sony Computer Entertainment Inc and others v Ball and others
Before Mr Justice Laddie Judgment July 19, 2004-10-22
“The Times” 21 October 2004
