Sony v Ball [2004] – Case Example of DRM Provisions

Sony v Ball (PS2 DRM)
(Photo credits: yum9me)

The case of Sony v Ball [2004] involved a number of defendants involved with the design, manufacture, sale, and installation of an mod chip called Messiah2 – which was used to circumvent to the DRM attached to PS2 disks to allow playing games from other regions, game backups, 3rd party games made by unlicensed developers, and pirated games.

The court held this to be no offense under Section 296(1)(a) of the CDPA(2) could be established at the summary stage of the proceedings. This section grants the owner the right to issue copies to the public the same rights against a person who deals with anti-circumvention devices knowing that it will be used to make infringing copies. The court said that the defendant knew that it MIGHT be used to infringe copyright, but he did not know that for a fact, and without further inspection into specific cases in which pirated games were loaded into the system, the offense cannot be be established.

However, an offense was established under Section 296(2)(b) for publishing information relating to enable or assist persons to circumvent the copy-protection system. The defendant in this case published information relating to the installation of the chips on internet websites.

The defendant argued that for the offense to be established, the anti-circumvention must be the “sole intended purpose” and that is not the case because the chip could be used to play backups and imported games. The court said that both of these actions must be legitimate uses for the defence to succeed and that was not the case as Sony did not authorize any of these. For imported games, the license was clearly for a specific region, and for the backup defence, the court said that the defence is only for ‘necessary’ backup and it is not ‘necessary’ to backup CDs as they are robust and cannot be wiped clean – unlike programs distributed on floppy disks or other unreliable formats.

The court also held that an offense was made under Section 296ZA for actually anti-circumventing DRM which the defendant has done when he installed the chip for customers.  Another offense was made under 296ZD for dealing in the course of a business with circumvention devices or services. The court said that 296ZD is a tort of strict liability and knowledge was irrelevant.

(Note: Actions under 296 are only for circumventing the DRM relating to computer programs, while 296ZA-ZE relate to all other works. Videos games computer programs and other works, so both categories of offenses apply).

Link to case.

Protection of DRM in the UK

DRM
(Photo credits: Vagamundos)

Current protection of DRM in EU is achieved through the Information Society Directive. Article 6 of this directive requires member states to provide adequate protection against the circumvention of DRM for protection of copyright and against any activity which is marketed for the purpose of circumvention or one which has no significant commercial purpose or use other than circumventing DRM (Such activities include manufacture and distribution of devices and the provision of services).

Article 6(4) of the directive require states to promote voluntary measures taken by copyright rightholders in order to allow the beneficiaries of a number of copyright exceptions to use these exceptions. Article 6(4) is only restricted to the following exceptions:

  • reprographic copying,
  • copying by libraries, educational establishments or musuems,
  • ephemeral recording made by broadcasting organisation,
  • copying of broadcasts by non-commercial social institutions,
  • copying for illustration for teaching or scientific research,
  • copying for people with a disability, and
  • copying for purpose of public security or for the proper performance or reporting of administrative, parliamentary or judicial proceeding.

This article creates a two step procedure for enabling the beneficiaries of these exceptions:

  1. Member states must promote voluntary measures taken by rightholder to enable the working of the exceptions.
  2. If rightholders fail to enable these beneficiaries to make use of their exceptions within a reasonable time, the member states should take appropriate measures to rectify the situation.

The directive does not define what is meant by “voluntary measures” or “appropriate measures”.

The rule in Article 6(4) does not apply to reproduction for private use. It also doesn’t apply in relation to works supplied online on agreed contractual terms.

In the UK, the provisions of this Directive were implemented into the CDPA 1988 which already contained sections for the circumvention of TPM on computer programs. These older computer program provisions still apply only to computer programs and the new anti-circumvention provisions apply to everything else.

Section 296ZA(1) prohibits doing anything which circumvents effective technological measures knowing, or with reasonable grounds to know, that is he is pursing that objective. The only exception to this section is when a person carries out a circumvention act for the purposes of research into cryptography.

Section 296ZB(1) makes it an offence for someone to (1) manufacture for sale or hire, (2) import other than for personal use, or (3) sell, advertise, possess, distribute, etc, in the course of a business, any device product, or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures.

Section 296ZB(2) makes it an offence or someone to provide, promote, advertise, or market (a) in the course of a business, or (b) to an extent as to affect prejudicially the copyright owner, a service for the purpose of which is to enable or facilitate the circumvention of effective technological measures.

Section 296ZE states that when DRM prevents a beneficiary of a permitted copyright act from doing that act then that person may issue a complaint notice to the Secretary of State who may order the owner of the copyright work to ensure that the complainant can benefit from the permitted act.

There are no records of any complaints ever made through this procedure to the Secretary of State. Akester suggests that this is due to a number of reasons including the fact that some beneficiaries are not aware of the procedure and that some find it too cumbersome and lengthy.

DRM and Interoperability

DRM & Interoperability
(Photo credits: Alexia’s)

Another negative impact of DRM on the market and consumer choice is the fact that it leads to the creation of interoperable technologies. Due to the proprietary nature of DRM technologies, the technology will only be accessible by devices and services that license the technology from the original manufacturer and users will not be able to circumvent the DRM just to be able to access the media on unauthorized devices even if they have legally purchased the locked up files.

This has the result of locking up consumers into specific brands of technology as the more they invest in purchasing digital content with DRM the more difficult for them it would be to abandon their investment in that content in order to use a competing technology. For example, videos purchased from the Apple iTunes store is protected by Apple FairPlay DRM which cannot be played on any portable multimedia device other than those manufactured by Apple itself.

Some consumers are also not aware of the nature of restriction imposed on the use of goods they use before they purchase them. An example of this would be copy-protected music CDs that cannot be played on PCs.

This lack of interoperability is one of the major problems with DRM. Akester suggests that a number of popular DRM technologies were circumvented because there was no legal way for the users to access the content they purchased on the Linux operating system. For example, the DeCSS technology used for circumventing the CSS protection on DVD was first made on the Linux to allow playback of DVDs on that operating system. Apple’s FairPlay DRM was also circumvented on the Linux OS because Apple never released a Linux version of iTunes.

In addition to the direct detriment on consumers, DRM’s lack of interoperability could have anti-competitive effects as companies acquire a vertical monopoly over the creation tools of the content, the distribution channels of the content, and the devices that play the content. Apple was the obvious example of this situation during the days when it sold songs with DRM, however, market pressure forced Apple to persuade the major labels to sell their music on the iTunes Store. However, it can still be argued that Apple is practicing anti-competitive activities in the way it sells video content (which is still served with DRM). Catherin Stromdale says that Microsoft has also been accused of being anti-competitive with its Windows Rights Management service which can be used with any Windows data.

DRM and Privacy

DRM & Privacy
(Photo credits: bejealousofme)

One of the less frequently talked about drawbacks of DRM is the possible impact of DRM on the end-users privacy. The purpose of DRM is to restrict the illegal copying or use of copyright works. In order to achieve this goal, some DRM technologies require authentications and force the user to identify himself in order to access the digital products he wishes to use. Personal information of the purchaser could be attached to the digital file downloaded such as this name, email address, or an account reference. As DRM spreads, we might end up in a situation where an individual cannot purchase or use any digital goods without giving up him anonymity.

Akester argues that this could potentially be in conflict in the EU with Article 8 of the European Convention on Human Rights on the right to respect private and family life. Akester believes that most DRM systems are made with little regard to privacy.

A possible problem with a more direct impact on users is the ability of certain DRM technologies to install themselves on the end-users machine with the purpose of tracking the use of work in question. In the year 2005, Sony BMG was caught in a scandal for including a special “rootkit software” that installs itself when a user plays a music CD by the label. This rootkit had the effect of rendering the end-users computer vulnerable for attacks. The rootkit was eventually labeled by makers of Anti-virus and Microsoft as a spyware. Sony BMG was faced with a number of class actions which the company settled.

However, the law in most jurisdictions would make attempting to circumvent DRM in order to protect the users machine or to access the purchased copyright work without compromising one’s privacy illegal.

Links:

Computer Programs Copyright Exceptions

Computer Programs Copyright Exceptions
(Photo credits: Bombardier)

The CDPA 1988 in the UK provides a number of copyright exceptions related to the use of computer programs. These exceptions allow a person to copy whole or part of computer programs without infringing copyright. All these exceptions other than the adaptation exception cannot be limited or excluded by contract.

Section 50A(1) permits a “lawful user” to copying a computer program to make a single backup copy of it which is necessary for them to have for the purpose of their lawful use. Bently says that this defence provides a form of insurance for end users in case the computer program fails or gets damaged. Case law suggests that this exception will only be accepted when the backup is ‘necessary’. In the case of Sony Computer Entertainment Inc v Owen, the court held that creating a backup copy is not necessary when a person buys a game on a disk.

Section 50B permits a lawful user of a copy of a computer program expressed in a low level language to decompile it into a higher level language OR to incidentally copy it in the course of converting the program, subject to the following conditions:

  • The decompilation is necessary to obtain information necessary to create an independent program which can be operated with the program decompiled, or with another program.
  • The information obtained is not used for any other purpose.

Bently says that this defence is necessary to be ensuring compatibility between software would require decompilation, and the process of decompilation would require at some stage intermediary copying of a program (and that would prima facie by an infringement without this defence).

Section 50BA permits a lawful user to observe, study, or test the functionality of a computer program without infringing copyright by carrying out an act of loading, displaying, running, etc, the program for the purpose of determining the ideas or principles which underlie any element of the program.

Section 50C(1) permits a lawful user of a computer program to copy or adapt that computer program if that is “necessary for the lawful use” of the program. This exception only applies in the absence of contractual terms to the contrary. Bently says that it is meant to allow end users to fix program errors without infringing copyright.

In addition to computer program exception, the CDPA 1988 has an exception in Section 56 that allows purchasers of works in electronic form to make further copies or adaptations o the work.

A final exception related to computer programs is the one for temporary technology-dictated copies. Under this exception an action would be barred from copyright infringement if it merely creates a temporary copy that is integral to the technology process and is made to enable either (a) the transmission between a 3rd party and an intermediary or (b) lawful use of the work, on the condition that this temporary copy has no economic significance.

Libraries and Archives Copyright Exceptions

Libraries and Archives Copyright Exceptions
(Photo credits: Here’s Kate)

The CDPA 1988 includes a number of defences for libraries and archives. The demands made for public libraries for copying documents in their possession will not usually be covered by the fair dealing provisions and may not protect the librarian. Other defences are available for the preservation of cultural documents that require disposition in appropriate archives.

All the relevant defences under this heading apply only to prescribed non-profit libraries.

  1. Sections 38 and 39 permit libraries to copy literary, dramatic, musical, or artistic works upon the request of individuals for their research or private study. Section 38 regulates the request for copying articles from a periodical, while Section 39 regulates the request for copying whole or part of a published edition.
  2. Section 40A permits libraries to lend works to the public without infringing copyright as long as the book is eligible within the public lending right scheme. Section 40A(2) permits libraries to lend works to another non-profit library without infringing copyright (regardless of public licensing scheme).
  3. Section 41 permits libraries to make a copy of a periodical article, or whole or part of a published edition of a literary, musical, dramatic, or artistic work in order to supply another prescribed library.
  4. Section 42 permits libraries to make copies to preserve or replace material in libraries main collection. (Provided that purchase of a replacement is not reasonably practical).
  5. Section 43 permits libraries and archives to copy certain unpublished works. (In many cases unpublished works of historical or literary interest have been deposited with libraries or other institutions, and it may be in the general public interest that they should eventually be published – {Copinger})
  6. Section 44 permits a designated body to copy an article of cultural or historical importance in situations where deposit of such work as a condition for export.

Public Administration Copyright Exception

Public Administration Copyright Exceptions
(Photo credits: vgm8383)

The CDPA 1988 contains the following copyright exceptions to facilitate a number of activities which might be carried in relation to copyright works by the public authority in normal course of public administrative:

  • Section 45 deems anything done for the purpose of parliamentary or judicial proceedings not to be an infringement of copyright. The reporting of such proceedings is also deemed not to be an infringement of copyright.
  • Section 46 deems anything done in pursuance of a Royal Commission or a statutory inquiry not to be an infringement of copyright. The reporting of such inquiry is also deemed not to an infringement of copyright.
  • Section 47 establishes a number of defences to enable copying material open to public inspection or are on a public register such as a patent register.
  • Section 48 deems anything communicated to the Crown in the course of public proceedings not to be an infringement of copyright.
  • Section 49 deems copying works found in public records not to an infringement of copyright.
  • Section 50 deems any act authorised by an act of parliament not to be an infringement of copyright.

Copyright Exceptions for the Visually or Aurally Impaired

Copyright Exceptions for the Visually Impaired

The CDPA 1988 provides a number of exceptions against copyright infringement in the UK to facilitate the availability of accessible works to persons who are visually or aurally impaired.

Section 31A allows a visually impaired person to make an accessible copy of a literary, dramatic, musical, or artistic work or a published edition.

An ‘accessible copy’ is a copy that gives the visually impaired person an improved access to the work. For example, a digital copy that could be read on a computer using screen reading technology.

A visually impaired person is widely defined in the CDPA to include persons who are physically disabled and cannot flip the pages of a book.

This exception does not apply if there are accessible copies which are commercially available.

Section 31B enables an educational establishment, or a not for profit body, to make and supply accessible copies of literary, dramatic, musical, or artistic work or published editions for visually impaired persons. Again, this exception does not apply if there accessible copies are commercially available.

In relation to those with hearing problems, Section 74 allows a designated body to copies of broadcast to provide subtitled or modified copies of it to people who are deaf or hard of hearing, or physically or mentally handicapped in another way. The designated body can also issue and lend these copies without infringing copyright.

Educational Exceptions for Copyright Infringement

Education Exceptions to Copyright
(Photo credits: Thomas Favre-Bulle)

There are a number of exceptions for copyright in the UK under the CDPA 1988, these defences vary in scope and have different requirements.

  • Copying for the purpose of instruction and examination

Section 32(1) provides a defence against copyright infringement for copying literary, dramatic, musical, or artistic works, carried out for educational purposes if it was carried in the course of, or in preparation for, instruction. There are four conditions for this defence to stand:

  1. Copying must be done by a person either giving or receiving the instruction.
  2. The instruction must be for a non-commercial purpose.
  3. Copying must not be done by means of a reprographic process.
  4. Copying must be accompanied by sufficient acknowledgment.

This defence can be used for published or unpublished works.

Section 32A has a similar defence which can be used for non-commercial or commercial purposes, as long as the following conditions are satisfied:

  1. The work copied is already available to the public.
  2. Copying must be done by a person either giving or receiving the instruction.
  3. The copying is fair dealing.
  4. Copying must not be done by means of a reprographic process.
  5. Copying must be accompanied by sufficient acknowledgment.

Both of these defences have a very limited effect due to the requirement for the copying to be made through non-reprographic means (Bently). The definition of ‘reprographic’ is found in CDPA Section 30 (1A) and it includes digital copying. The exception is meant to primarily allow handwritten copying to be done and not much else.

Section 32(2) provides a defence for film-making instruction by allowing copying sound recording, film, broadcast when making a film or a film soundtrack in the course of, or in preparation, for instruction in the field of making film or film sound tracks.

There are three conditions for this defence to stand:

  1. The copying must be carried out by a person either giving o receiving the instruction.
  2. Copying is accompanied by sufficient acknowledgment.
  3. The instruction is carried out for a non-commercial purpose.

Finally, Section 32(3) provides a defence for examinations, in that anything done by way of setting the questions, communicating the questions to the candidates or answering the questions, will not infringe copyright.

  • Copying for Creating Anthologies And Collections

Section 33 provides a defence for copying short passages from published literary or dramatic works if included in a collection that is intended for use in an educational establishment.

There are three conditions for this defence to stand:

  1. The collection consists mainly of material in which no copyright subsists.
  2. The inclusion is accompanied by sufficient acknowledgment.
  3. The inclusion does not involve more than 2 excerpts from copyright works of the same author in collections published by the same publisher over any period of five years.

There is no clear definition of what short is, but if it was insubstantial then it won’t be considered as an infringement for a defence to be even necessary (Bainbridge). The requirement for cap on the number of excerpts and the period of publication is also a very restrictive requirement (Bently).

  • Performing, Playing, or Showing Works in an Educational Institute

Section 34(1) provides a defence for performing, playing, or showing literary, dramatic, or musical works by deeming the act not a public performance as long as it satisfies the following conditions:

  1. The performance is made before an audience of teachers and students at an educational institute.
  2. The performance is carried out by a teacher, pupil, or any other person for the purpose of instruction.

This means that performance by anyone before students in a drama class would benefit from the defence, but not before an audience of parents as parents are not connected to the activities of an educational establishment.

Section 34(2) provides a defence for displaying a film before students for the purpose of instruction. This defence cannot be used though by film student societies as the display would be made for fun and not education (Bently).

  • Recording of Broadcasts by an Educational Institute

Section 35 provides a defence against copyright infringement for educational establishments to make a recording of a broadcast, or copy such a recording, for educational purposes of that establishment as long as the following conditions are satisfied:

  • There is no appropriate licensing scheme.
  • Copying is accompanied by sufficient acknowledgment.
  • The educational purposes are are non-commercial.

Bently states that this defence is of no significant effect as most educational establishments  have entered into a number of relevant certified licensing schemes.

  • Reprographic Copying

Section 36 provides a defence against copyright infringement for the reprographic copying of literary, dramatic, or musical works by educational institutes as long as the following conditions are satisfied:

  • Copying does not exceed 1% of the work per quarter of year.
  • Copying is made for non-commercial instruction purposes.
  • Sufficient acknowledgment is made as long as it is not practically impossible.
  • There are no licensing schemes available.

Bently states that this defence has a limited effect due to the existence of licensing agreements. Bainbridge finds the defence pointless as he doesn’t consider copying less than 1% to be a substantial part of the work and therefore that action would not be considered as copyright infringement anyway. Bainbridge cites Hawkes & Son (London) Ltd v Paramount Film Services Ltd [1934] as a case indicating the difference between a substantial and insubstantial part of a copyright work.

  • Lending of Copies

Section 36A provides a defence allowing educational institutes to lend copies of copyright works.

Incidental Inclusion of Copyright Works

Incidental Inclusion

Section 31(1) of CPDA in the UK provides an exception for copyright infringement when a copyright work is incidentally included in the work of another. This exception is necessary for photographers, film makers, painters, and the like, when creating works that would incidentally show other copyright works. Without this exception it would be very difficult to, for example, prepare a film as it would necessary to avoid the chance for the inclusion of copyright works.

The meaning of “incidental” was explored in a number of cases such as IPC Magazine Ltd v MGN Ltd [1998] where a commercial for a new tabloid attachment showed a cover of another magazine. The court said that “incidental” means “casual, inessential, subordinate, or merely background”, which was not the case here, leading the inclusion not to be considered incidental and therefore infringing.

The court also held that the term “incidental” does not include the situation where the work is integral to the work. In the case of Football Association Premier League Ltd v Panini UK [2004] the defendant distributed cards with images of football players showing their club strips and badges of their football clubs. The court in this case rejected the defence of incidental inclusion stating that it was artificial to test the “incidentality” of the inclusion by artistic consideration where the purpose of the inclusion was commercial as the cards would not have been of the same commercial value had the players not been pictured in their club strips.

For the music and spoken or sung words, the inclusion will not be incidental it was deliberate. However, the same requirement for the inclusion not to be deliberate does not exist for other works.

This exception has a small scope, but is necessary in order to allow others to create without fear of copyright infringement of all works around us.