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PlayStation (Games) Hardware Hacking

PS2 Mod Chips Legal In Australia 163

Posted by Zonk from the wow dept.
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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PS2 Mod Chips Legal In Australia More

PS2 Mod Chips Legal In Australia

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  • Region Coding (Score:5, Insightful)

    by ViX44 ( 893232 ) on Thursday October 06, 2005 @08:48AM (#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*
    • It's all because game companies want to make an extra buck or two. Maybe companies should pull a Hollywood out of their collective asses and admit that sometimes their games can suck.

      • It's all because game companies want to make an extra buck or two.

        It's also because things might be considered copyrighted (e.g. Peter Pan in Britain), hateful (e.g. Nazism in Germany or France), or otherwise prohibited in one country but not in another. For instance, owners of entertainment franchises often license a particular franchise exclusively to one company in a given territory and to another company in a different territory. Jump Superstars for Nintendo DS, a game along similar lines to Super S

        • It's also because things might be considered copyrighted (e.g. Peter Pan in Britain), hateful (e.g. Nazism in Germany or France), or otherwise prohibited in one country but not in another.

          But Britain, Germany, and Japan, three countries with wildly different rules and regulations about content and three different ratings/censorship systems, are all in the same DVD "region"! And even in games consoles, Britain is always in the same region as Germany, even though British law allows a large number of things t

          • But Britain, Germany, and Japan, three countries with wildly different rules and regulations about content and three different ratings/censorship systems, are all in the same DVD "region"!

            Not necessarily. A lot of DVD players (notably the PlayStation 2, which was the most popular DVD player in Japan when it first came out) are incapable of converting between the 480i signals of NTSC and PAL60 and the 576i signals of PAL50 and SECAM. This has the effect of segmenting Japan (480i) and Britain/France/Germa

        • t's also because things might be considered copyrighted (e.g. Peter Pan in Britain), hateful (e.g. Nazism in Germany or France), or otherwise prohibited in one country but not in another.

          So what? If some content is illegal somewhere, it's up to the authorities there to go after the possessors. The media player manufacturer have no business doing the content-police's work, so if they put things like "region codes" in their hardware, it's for other reasons, price-fixing being the most blatantly

        • The problem with your reasoning is that it would require region lockout chips to prevent people from selling certain games in certain countries. They do not; instead, they keep people from playing those games after they've already imported them. There's nothing in your post that justifies keeping someone from playing a game that he legally imported on the console that it's made for.

          Rob

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

      by l2718 ( 514756 ) on Thursday October 06, 2005 @09:11AM (#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.
        • It's not so simple. The DVD specification (especially the CSS part of it) is not open. To build a device that will play movies you need to pay the DVD Forum [dvdforum.org] to license the "book" containing the specifications. There may also be a per-device fee. The license probabably doesn't force you to manufacture region-coded devices, but may (someone else might know this) require you to pay more. In any case hardware companies enjoy this distinction: it seems their profits are maximized by charging $80 for a regul
          • Last time I read about region-coding, the DVD Forum said that Macrovision-free or region-less DVD players were not allowed to use the "DVD-Video" logos on their devices.

            Maybe you are right and they do sell more expensive licenses that remove some of these requirements... but the licenses I read about require both. It would be possible for chinese/taiwanese/etc. manufacturers to male logo-less, macrovision-free and region-less players but these may not be legal for import (due to studio lobbying / DMCA and e
        • 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.)
          • My understanding of the high court's ruling, specifically points 210 onwards, is that the Copyright (Digital Agenda) Act's definition of a 'TPM' is to be interpreted in the most narrow fashion possible, in order to allow consumers to retain all of the rights of ownership over purchased chattels.

            In other words, as long as there's a legitimate reason behind disabling Macrovision (and trust me, there's several. The most obvious which springs to mind is to enable you to plug a DVD player into an older televisi
        • 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?

          Actually there has been by hardware makers, but in most countries they can't legally, since it is a condition of their licencing the technology to make DVD players that they incorporate region locking. The plain evidence that the hardware makers don't like region coding is in Australia. I'm not 100% clear on the legal background, but we've mana

      • 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.

        I don't think it's that simple. The mechanism certainly appears to satisfy the definition of a TPM under the Act:

        a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or in

        • The definition of TPM is:

          a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work...

          The result in the High Court turned on the interpretation of one word - "inhibit". The device did not "prevent" copying because it acted after the copying took place. There was no attempt to deny that one of the purposes of the device was to make the unlawfully copied game unplayable. The ques

    • 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

  • This is a sign of the apocalypse. Forget the earthquakes, and the hurricanes, the wars and rumours of wars. Don't worry about the floods, droughts and famine. Aussie courts are making sense! The end is nigh!

    Convert to the Call of Cthulhu while you can!

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

    by aaron_hill2 ( 772732 ) on Thursday October 06, 2005 @08:50AM (#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

      • The problem with explictly enumerating legal uses is that it is impossible to account for unforseen situations (like new technologies) that may emerge. You end up having to either revisit the laws regularly or you end up with outdated povisions that don't apply to the modern world (IE, back to square 1). That's one of the biggest strengths of Fair Use, it is flexible enough to cover many unforseen (much to the chagrin of tradionalist media companies) circumstances.

        I just hope they don't do what the Bu
  • Video games down - next step, region-encoded dvd's? If only...

  • Why Sony? (Score:2, Funny)

    by zegebbers ( 751020 )
    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 ) * <samj@samj.net> on Thursday October 06, 2005 @08:56AM (#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.
    • Australia led the way instead of being the global village idiot.

      Richard Alston's resigned then has he? ;-)

      (Seriously - I've been out of the country for 5 years)

    • It's not that the ruling Liberal Party has started advocating more rights for consumers, it's that the courts have made a common sense decision to not artificially restrict market choice.

      Still, the Australian Attorney-General's Department is undertaking a review of fair use laws [ag.gov.au], so maybe we will have more rights to use the things we've purchased.

  • 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 @09:03AM (#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 @09:03AM (#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.
    • Quite a few of the cheaper DVD players I've seen happily ignore the region encoding. I've heard it's because implementing such is just another cost to the producer, who is trying to shave as much as they can.

      If region-encoding because illegal (or anti-region-chipping legal, at any rate), wouldn't it save money to just not include any region-locking crud?

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

    by benzzene ( 755902 ) on Thursday October 06, 2005 @09:07AM (#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.

    • Re:Mod chips have two uses (Score:4, Insightful)

      by NeMon'ess ( 160583 ) <flinxmid&yahoo,com> on Thursday October 06, 2005 @09:13AM (#13729180) Homepage Journal
      It's sony's fault for integrating region enforcement into the same chip that also prevents burned copies of games from playing.
      • Acording to the judges ruling that wouldn't have mattered.

        Of course if it weren't for the region coding issue (which is a big anti-trust illegality issue for Australia) the judge might not have been as sympathetic and might have stretched the law in the opposite direction to rule mod-chips illegal.

        -

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

    by AussiePenguin ( 83326 ) on Thursday October 06, 2005 @09:07AM (#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 @09:21AM (#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.

    • 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.

      I think it is important to note that while copying a program from storage to RAM is in fact considered copying in U.S. law, this copy is not considered an exclusive right of the copyright owner and thus does not require permission. From Title 17, Chapter 1, p 117 [cornell.edu]: " it is not an infringement for the owner of a copy of a computer program to make or authoriz
      • Which raises the question: If I have lawfully purchased a copy of software, why do I need a license?
    • And now comes the important bit:

      That bit is not nearly as important to the case as you seem to think it is, nor is it as clear-cut as the limited quote you have made would suggest.

  • This story is totally wrong (Score:1, Informative)

    by Anonymous Coward
    The poster didn't understand what the story is about.

    In his post hee says "... PS2 mod chips were 'technological protection measures' ...". That's totally wrong, the court decision and story on groklaw are saying that the chip inside the PS2 , the one that enforces the protection, was known to be a 'technological protection measures' until now. This chip and the modchip are two very different things ;)
  • Because they [...] are region coding devices, they were ruled to be regional coding devices.

    Next time a court will decide (unanimously, I hope) that a cow with constipation is indeed a cow with constipation.

  • 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

    • If I'm reading them right, a Club With Nail In [tm], when applied to the head of a copyright infringer, could equally be considered a technical prevention measure, and hence selling hard hats should be illegal.

      Before anyone comments: this analogy works because the above commentary seems to suggest that a regional encoding system which would coincidentally block some pirated games from being played should be considered a copy protection measure on that basis. Which seems kind of tangential to the actual purp
  • when it comes to infringing on the copyright of games (ie copying or downloading them) I do it as a method to try them out first before buying. And then I tend only buy the games that i have to have the original to play online or system link with others. Legally there should be no repercusions as i would never (im a broke bastard) have the money to buy or even rent all the games i have downloaded to try out. The game companies are losing no "potential" revenue from me.

  • the goddamn (Score:3, Interesting)

    by KillShill ( 877105 ) on Thursday October 06, 2005 @02:25PM (#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.

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