LawFont.com

Bit of a round up around the place on the Stevens v Sony ruling by our High Court, which I’ve commented on already:

• Michael Geist (Canada): commenting on the relevance of the decision in the current Canadian debate over implementation of the WIPO Copyright Treaties, and noting the concerns raised by the court, Kirby J in particular, over the way that paracopyright laws interfere with people’s rights in relation to their own purchased property;
• Warwick Rothnie (Australia) (noting the decision);
• Copyfight (US) (celebrating); and
• Sydney Morning Herald news story (quoting Matt Rimmer, and the AG’s Dept).
• Rusty Russell’s comments.

According to Warwick, the Copyright Council will have a summary up soon too.

As for my developing views, well, I remain of the view I expressed yesterday: the direct legal effects of this judgment may be limited due to the changing nature of the law. But the High Court has ‘got it’ in some fairly important ways: they have understood, and expressed, the way that broad anti-circumvention (paracopyright, ubercopyright) laws are not about copyright and do carry significant risks for other, very important interests. This couldn’t be more relevant or more timely, given current debates in Australia over the drafting of the new anti-circumvention laws.

So the court have pointed out the importance of not unduly extending the copyright monopoly:

‘[I]n construing a definition which focuses on a device designed to prevent or inhibit the infringement of copyright, it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it. A defect in the construction rejected by Sackville J is that its effect is to extend the copyright monopoly by including within the definition not only technological protection measures which stop the infringement of copyright, but also devices which prevent the carrying out of conduct which does not infringe copyright and is not otherwise unlawful.’ (Gleeson CJ, Gummow, Hayne and Heydon JJ, [47])

There was also recognition that Sony’s conduct was explicitly aimed at limiting competition:

‘By the combined operation of the CD ROM access code and the Boot ROM in the PlayStation consoles, Sony sought to impose restrictions on the ordinary rights of owners, respectively of the CD ROMS and consoles, beyond those relevant to any copyright infringement as such. In effect, and apparently intentionally, those restrictions reduce global market competition. They inhibit rights ordinarily acquired by Australian owners of chattels to use and adapt the same, once acquired, to their advantage and for their use as they see fit’ (Kirby J, [175])

And there was recognition also that Sony’s interpretation, if accepted, would have interfered with the ordinary rights of people who have bought games and devices:

‘it is legitimate to say that, had it been the purpose of the Parliament to push the provisions of the Copyright Act attaching offences and sanctions to circumvention of TPMs in a way that deprived chattel owners of ordinary rights of ownership, such a provision would have been spelt out in unmistakable terms. In the definition of TPM in s 10(1) of the Copyright Act, such unmistakable language does not appear. This fact affords a further reason for preferring the more restricted interpretation that is compatible with the ordinary incidents of ownership of lawfully acquired chattels.’

These are all important things to think about as we draft the new laws…

It’s also important to note that the High Court did find the question of interpretation here a difficult one (as did all the judges below). That’s not surprising, again, because these laws are controversial, and because the legislative history is not clear, and because the scope of the law has been contested, constantly, from the time before the WCT was drafted, to now and beyond.

Oh, and here’s a little aside about the wonders of the Internet and open access to research: both my article, cited in the opinions, and Ian Kerr et al’s article, cited by the Court, are available for free online!