The limits of copyright protection

In a series of posts, Kim Weatherall has illuminated the impact of the High Court’s decision that Australia copyright law—for the present— protects the consumer’s right to access copyright materials acquired in contravention of the right owner’s attempts to segment the global market supply (by price discrimination). I read this decision, casually, as a confirmation of the right to access parallel imports. But there’s more …

Professor Weatherall says

“… the judgments get at something which is fundamental, but which it is easy to forget. And that is this: that the technical measures used by Sony are not, in essence, about preventing infringement of copyright.

Infringement happens regardless of whether measures like Sony’s are used. While anti-circumvention laws are sold as being about ‘preventing piracy’, the fact remains: the Sony measures do not prevent infringement, no matter which way you turn it. That’s why, in the end, the court has decided the way it did.

In reality, measures like those used by Sony are about controlling use of and access to Sony PlayStation consoles. Sony controls all kinds of things about the way people use Sony consoles. For example: they control whether people can:

play legitimately purchased games sold in overseas markets;

play games created by someone other than Sony on the Sony console (something that cannot be done on a non-chipped console owing to the absence of an access code).

So while Sony can argue that it wanted to prevent piracy (it clearly did), and that the measures acted in part to deter piracy (they clearly could), Sony’s own approach to the measures muddies the waters. It doesn’t just act to prevent infringement, and that point is taken notice of by the Court here. One can’t help but suspect the legal reasoning would look different, in this case, if Sony only used its power over the console to actually prevent use of ‘pirated’ disks. The way Sony goes about its business quite apparently takes its measures outside the heart of what is covered by the legislation: and justifies the High Court’s approach.”

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