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PS2 Mod Chips Legal In Australia

Posted by Zonk on Thu Oct 06, 2005 07:44 AM
from the wow dept.
PlayStation (Games) Hardware Hacking
Buccaneer-American writes "Over here on Groklaw, PJ is reporting that PS2 mod chips are now legal in Australia. The highest Australian court decided in Stevens v. Sony to overturn a lower court ruling that PS2 mod chips were 'technological protection measures' which would run afoul of the Australian DMCA-equivalent. Because they do not protect copyrights per se, but are rather region coding devices, they were ruled to be regional coding devices. In short, we have Sony to thank for being a loser yet again and establishing some of our rights in case law, albeit sometimes inadvertantly." The High Court's decision is online, with some legal commentary from the Australian court. More coverage of this story available at The Age and SMH.
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[+] Gamers, EFF Speak Out Against DRM 203 comments
Last month, we discussed news that the FTC would be examining DRM to see if it needs regulation. They set up a town hall meeting for late March, and part of that effort involved requesting comments from potential panelists and the general public. Ars Technica reports that responses to the request have been overwhelmingly against DRM, and primarily from gamers. The Electronic Frontier Foundation also took the opportunity to speak out strongly against DRM, saying flat out that "DRM does not prevent piracy," and suggesting that its intended purpose is "giving some industry leaders unprecedented power to influence the pace and nature of innovation and upsetting the traditional balance between the interests of copyright owners and the interests of the public." Their full public comments (PDF) describe several past legal situations supporting that point, such as Sony's fight against mod chips, Blizzard's DMCA lawsuit against an alternative to battle.net, and Sony's XCP rootkit.
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  • Region Coding (Score:5, Insightful)

    by ViX44 (893232) on Thursday October 06 2005, @07:48AM (#13728996)
    And why, exactly, is region coding something that should be protected? *insert "buy a book in New York, read it in Paris, sell it in London" arguement here*

    • Re:Region Coding (Score:5, Insightful)

      by l2718 (514756) on Thursday October 06 2005, @08:11AM (#13729163)
      In fact, region coding is not protected. That's what the court said, but also clearly understood by Sony. While Sony's main motivation to oppose modchips may be their desire to enfore a price discrimination system, their legal argument was that the locked-down state of the PS2 is needed to prevent copyright infringement, and therefore the modchip should be thought of as a device to circumventa copy-protection system. Thankfully, the court didn't buy their argument.
      • So if it's perfectly legal to circumvent region coding... why aren't more companies in the hardware business rejecting the idea?

        I mean, if the only reason we have region encoding is because the content manufacturers say "Pretty please," why hasn't there been more uproar or at least dissent?

        • because only s small proportion of people install mod chips to unlock their player from region coding.
        • The CSS license requires that you impliment region locks as part of the deal. Legitimate hardware makers have to comply if they want their players to be able to play all DVDs.

          What this does mean is that Joe the electronics shop guy can legally chip players to ignore region flags and sell them as region-free. (Although to hack out Macrovision would probably still be illegal.)
    • Region coding was mandated to be part of the DVD specification by governments. Mostly, European if I remember correctly.

      The problem is that there are different standards for movies and ratings, so a movie that is perfectly acceptable in the US with an R rating may be illegal to be possess in Japan - they have very strict laws about nudity in some forms. There are similar rules concerning language and violence in other parts of the world.

      Similarly, airlines have to get specially edited movies which are leg

  • Australian Copyright Laws Are Still Bad (Score:5, Informative)

    by aaron_hill2 (772732) on Thursday October 06 2005, @07:50AM (#13729019)
    While this is a pleasing decision, as an Australian I am still appalled by the lack of even fair use rights in our copyright laws. It's technically illegal to backup our CDs or tape shows off of TV. It's absolutely ridiculous.
    • I used to think that fair use was the way to go, but Australian IP law academic Kim Weatherall [blogspot.com], who is generally one of the good guys on IP law, thinks that a better approach is to explicitly enumerate rights like personal copying in legislation rather than relying on a constitutional device like fair use. You can go digging through her archives, but her view, IIRC, is that fair use is so vaguely defined it makes it very difficult to decide what's legal and what's not.

      Of course, fair use would be better

  • Video games down - next step, region-encoded dvd's? If only...
  • Nobody thanks me for being a loser yet again!
    (j/k) :P
  • Anyone know if region-free DVD players are also openly sold in australia?

    It's fairly easy to thus deduce that large retailers can also sell region free DVD players, and in fact even have those same large retailers sell pre-modded consoles, not just the small shop on the corner.

    In other matters, it also looks like precedent is set that merely "using a copyrighted work" does not constitute infringement, a tactic that some have used before against others (as in "copying to memory is infringement").
    • I know my Australian-bought Sony DVD player (bought from Bing Lee) is region-free. It is careful not to mention it in the manual or on the box, but I just need to put a DVD in, and it will just play. I've only tested it on a single region 1 DVD, so YMMV.
    • Yes, at least if you don't buy Sony. Pioneer used to mark their region free DVD players with a green dot sticker on the box. no advertising, just the sticker. Don't know what happens lately though. BTW. This judgement is almost certainly short lived as a result of the free trade (sell out) agreement with the US. Don't get over excited, it aint going to last.
    • Anyone know if region-free DVD players are also openly sold in australia?
      They used to be before the original Sony decision which made it illegal to sell mod chips but not illegal to own a chipped device. I'm guessing they will be legal again.

  • It's about time... (Score:4, Interesting)

    by samj (115984) * on Thursday October 06 2005, @07:56AM (#13729047) Homepage
    Australia led the way instead of being the global village idiot. I wonder what effect (if any) this will have on xbox-linux etc.
  • I'm not at all familiar with the legality (or illegality) of modchips. Are they legal in the U.S. and Canada? How do companies like Modchipman [modchipman.com] operate if these chips are illegal? I remember seeing Lik Sang sued a few times for the products they were selling.
    • They are not illegal because they are just flash RAM chips with some control logic so they can be soldered on a PS2/XBOX or GC mainboard. They are not flashed with anything illegal or copyrighted when you buy them. As it is not illegal to sell flash RAM, it is also not illegal to sell modchips. It is also not illegal to flash them with a free BIOS like cromwell and use that to boot linux on your XBOX. However, it *is* illegal to put them in your console and flash them with a copyrighted, reverse-engineered

  • Tomorrow's headline... (Score:3, Insightful)

    by Verteiron (224042) * on Thursday October 06 2005, @08:03AM (#13729110) Homepage
    "Sony to stop distribution of PS2 in Australia, citing quality control issues"

  • Always hoping they'd shoot themselves in the foot (Score:3, Interesting)

    by 91degrees (207121) on Thursday October 06 2005, @08:03AM (#13729117) Journal
    Regional lockouts and restrictions always struck me as a potentially risky idea for the companies precisely because there is quite a reasonable argument that they prevent people from doing perfectly legal acts. Therefore circumventing them shouldn't be a crime. It's nice to see the Australian court more or less agreeing with me.

    I wonder if this may make them reconsider regional lockouts for the next version of their console. Piracy must cost them a lot more than grey imports. At least the grey imports count as a sale, and it's a lot more hassle to get hole of them than copying a disc from a friend.

  • Am I the only... (Score:3, Interesting)

    by benzzene (755902) on Thursday October 06 2005, @08:07AM (#13729137)
    ... person with a legitimate reason to own a modchip? I am Australian and I bought my PS2 in Australia. I've never owned pirated games or DVDs. This year I moved to Finland and if I want to buy new PS2 games I would have to get a friend in Australia to send them (it's not easy to get online companies to deliver region specific things internationally). Also, I can't watch DVDs I buy here on my PS2. I'm pretty sure I didn't break any laws by moving to Finland, Why am I being punished?
  • Yes, mod chips can overcome region encoding. But they also overcome measures to prevent the booting of copied discs.

    If the mod chips sold only play original games and overcome region coding then there's no problem with them in my book.
    • Yes, mod chips can overcome region encoding. But they also overcome measures to prevent the booting of copied discs.

      How unfortunate. Sucks to be Sony, huh?

      In other news today, soldiers protect you from rogue states but also torture prisoners and take photos as souvenirs, Catholic priests are mostly nice old guys but sometimes they're rather too interested in children, and your computer can send information to any other machine on the internet, whether or not it's information that you should be sending.

    • It's sony's fault for integrating region enforcement into the same chip that also prevents burned copies of games from playing.

  • legal commentary from the Australian court? (Score:4, Informative)

    by AussiePenguin (83326) on Thursday October 06 2005, @08:07AM (#13729142) Homepage
    Except that it's from the Australian Competition and Consumer Commission, the watchdog responsible for matters that are our equivalent to that of 'antitrust'.
    • Oh and so much to reply to my own post but I didn't quite notice when I posted. That link was from a press release issued on 29th July 2002, which related to a previous ruling in the Federal Court. Sony since appealed in the Federal Court and Stevens managed to appeal to the High Court.

  • Landmark case (Score:5, Informative)

    by l2718 (514756) on Thursday October 06 2005, @08:21AM (#13729235)

    This is a case where it's very important to at least read the press release, since the posting is somewhat misleading. This ruling and the jurisprudence it represents are fundamentally different from US court's views.

    To start with, it's important to note that the guy was mainly selling illegally copied games, and was selling the modchips together with them so that these games would play. Thus the appeal was about whether the sale of the modchips was legal, even though they were sold to allow pirated games to play on the system.

    Next, the brunt of the ruling is that while the act of copying the games was illegal, the modchips have no effect on that. The modchips only affect the loading of games to the console memory. And now comes the important bit:

    "... computer programs are not reproduced in a material form in RAM and copies of cinematograph films are not made in RAM when games are played."
    Note that in the US, running a program is thought to include an act of copying it from storage to RAM, and hence fall under the purview of copyright law.

    Now, companies are allowed to use technology to restrict the loading of programs (this is about price discrimination), but you are allowed to modify a device you own, so modchips are legal even though they allow you to play copied games, indirectly helping you violate copyrights.

  • More (Score:2, Informative)

    by ffrinch (586802)

    See this post [blogspot.com] at Weatherall's Law.

    Q: So, does this decision settle Australian law when it comes to the legality of circumventing 'technical measures' like those used by Sony in this case?

    A: No, the law isn't settled, because under the FTA we have to change our anti-circumvention laws by 1 January 2007. In fact, the new laws are currently being drafted, and discussed by a Parliamentary Committee

    Q: Well, does this decision at least mean mod-chipping is legal in the meantime?

    A: Well, no. Even that is

  • the goddamn (Score:3, Interesting)

    by KillShill (877105) on Thursday October 06 2005, @01:25PM (#13732778)
    nerve of those assholes.

    saying you can't take steps to ensure you own your property.

    if you paid for the chips, you have a right to access them any way you please.

    fuck sony, fuck microsoft and fuck nintendo.

    under the guise of "fighting piracy" they !steal! your access rights to your own property.

    get a clue... it has nothing to do with "piracy" but with control. their business model requires them to deny you the customers the ability to control your property so they can convince developers to pay them for the privilege of making games. but the problem with this is that IT'S YOUR PROPERTY because you paid for it and it's ILLEGAL for them to prevent you from accesssing your property.

    fucking incompetent and bought judges/legislators.

    their business model requires them to rent you machines under the premise of buying it outright. but if you buy it outright, you have every right to have unrestricted access... car dealers/manufacturers don't require you to get permission when you want to take a drive. and this is a physical product so the analogy holds.

    fuck off and die you leeches. i fully endorse people taking back their property using any means necessary.

    if you want to rent consoles, call it renting and then behave accordingly. what you are doing is unethical, immoral and illegal (bribed officials don't count). and you can go bankrupt for all i care. you treat your customers like shit and take away their lawful property rights.

    the console business model almost makes the RIAA/MPAA's model look valid by comparison.
    • Lets face the facts here. People who buy mod chips do so to pirate games and to play pirated games. It's a reality that no slashbot could deny. How many people do you know mod a system to play "homebrew" games or do something that doesn't involve piracy?

      Nice flamebait. You didn't even read the summary, never mind the article, did you?

      The ruling was that mod chips are OK because they're used to bypass region coding. Australia has a problem with region coding, and Australians generally don't see why they

    • I do agree that a lot of people use mod-chips for piracy. But it's also true that a lot of people use mod-chips to play region-encoded games. There are a lot of games that only came out in Japan, that otherwise wouldn't see the light of day here.

    • That misses the point (Score:2, Insightful)

      by Anonymous Coward
      I think you miss the point.

      If Sony *hadn't* tried to tie multiple things together (region coding + copy protection) and only used their chips for copy protection then they would have won.

      What the court said is that if there is a legitimate use for mod chips (and bypassing region coding is legit) then they're legal even if they also bypass copyright protection as a side effect.

      By my reading of this (IANAL) all the games industry has to do to get around this ruling is to remove all the extra nasties, like reg
      • By my reading of this (IANAL) all the games industry has to do to get around this ruling is to remove all the extra nasties, like region coding, with a new system and then sue the mod chip maker who gets around this new system. Then the chip would *only* be for copyright protection and so the modchip would have no other valid use.

        Your reading, while a sense making interpretation, worries me.

        Sure, removing region coding, etc, would be great. But that doesn't mean that the only use for a mod chip is bypass

        • What about homebrew apps?

          The major console makers' official position is that you're not supposed to do homebrew at all on their consoles. Instead, learn video game development by developing games for PCs and PDAs, learning the Allegro, OpenGL, and DirectX APIs along the way. The GameCube, Nintendo DS, and PSP all use OpenGL for graphics, and the Xbox uses DirectX. Once you have already made commercially successful games on PCs and/or PDAs, then you're deemed worthy to be hired by a licensed console game

    • Your not paying for mod chippers. Your paying for the perception of loss by executives of game companies.

    • Re:Everybody knows what mod chips are for (Score:5, Informative)

      by nihilogos (87025) on Thursday October 06 2005, @08:09AM (#13729154)
      Lets face the facts here. People who buy mod chips do so to pirate games and to play pirated games. It's a reality that no slashbot could deny. How many people do you know mod a system to play "homebrew" games or do something that doesn't involve piracy? You can argue mod chips are in of itself legitimate, but almost nobody uses them for legitimate purposes.

      Utter crap. I had my PS2 chipped so I didn't have to see that fricking "This disc cannot be played due to regional restrictions" message on my screen. After shelling out good legal tender for a DVD.

    • Re:Everybody knows what mod chips are for (Score:5, Informative)

      by huge colin (528073) on Thursday October 06 2005, @08:50AM (#13729445) Journal
      Lets face the facts here. People who buy mod chips do so to pirate games and to play pirated games. It's a reality that no slashbot could deny. How many people do you know mod a system to play "homebrew" games or do something that doesn't involve piracy? You can argue mod chips are in of itself legitimate, but almost nobody uses them for legitimate purposes.

      Wrong. One of the worst things about modern consoles is the fact that the medium used for distributing the games is DVDs. DVDs are slow compared to hard drives, so one solution popular among PS2 people is to copy images of their games to a large-capacity hard drive and boot a game loader directly off their memory card that will then load the games from the HD instead of from an optical disc. This is as fair as fair-use gets, and it requires a modchip.
    • Most of my friends got their PS2 modded to play japanese games (which, 90% of the time are way better than american games...)... if only the RPGs were in english... and Jojo's Bizzare Adventure 2. hmph.

      although, game piracy is a sideeffect that you can't avoid. Once the ability to do it is there, you kinda start to realize that most of the games really aren't worth more than 20$. Darkwatch is a piece of shit. Narutimet Hero is an EXCELLENT game. piracy of the former, purchasing of the latter. although, shel

    • Re:Regional coding devices... (Score:4, Informative)

      by l2718 (514756) on Thursday October 06 2005, @08:05AM (#13729125)

      Two separate issues:

      Region Coding [hometheaterinfo.com] has to do with price discrimination [wikipedia.org], i.e. the desire of the media companies to charge different prices in different countries depending on what people will pay by preventing you from buying a DVD in Africa, and reselling it in the US. It is a techonology that they apply for economic reasons, and has nothing to do with the consumer. It is perfectly legal to buy a DVD that will ignore the coding (though they are much more expensive than regular ones). Computer programs that play DVDs ignore this coding too.

      Making personal copies [eff.org] (warning: link discusses the copyright regime of the USA) has to do with copyright law. It's not about giving your copy to someone else, but about creating more copies. Just because you're allowed to modify your PS2 (for example, to play games bought in other regions) doesn't mean you are allowed to freely copy the games without paying for them.

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