Kabushiki Kaisha Sony Computer Entertainment Inc (t/a Sony Computer Entertainment Inc) v Ball & Ors

Under the Copyright, Designs and Patents Act 1988, a transient copy of copyright material held in a RAM chip may be an infringing copy. The relevant question is whether the article contained a copy at the moment of copying; its short duration does not remove it from the statutory definition.

Under the original section 296, liability depended on knowledge or reasonable belief that a device would be used to make infringing copies. That requirement was not satisfied merely because devices might be exported for use abroad. The amended provisions impose wider liability, particularly for products promoted or marketed to circumvent effective technological measures. Copy-protection may be located in hardware, software, or both.

Sony sought summary judgment against the first defendant, who was involved in supplying and installing Messiah2 chips for PlayStation 2 consoles. The chips bypassed the consoles’ copy-protection system, enabling unauthorised copies and games intended for other geographical regions to be played.

Sony relied on section 296 of the Copyright, Designs and Patents Act 1988 before and after its amendment, together with sections 296ZA, 296ZD and 296ZF. The principal issues were whether transient copies loaded into RAM were infringing copies, whether the original provisions applied to devices exported for foreign use, whether the amended provisions were engaged, and whether hardware-based protection fell within the legislation.

1. Transient RAM copies. A silicon RAM chip is an article. When it contains a copy of copyright material, it remains an article even though the copy exists only briefly. Section 27 focuses on the moment when the copy is made. Sections 17(2) and 17(6), which recognise electronic storage and transient copying, support that construction. A transient copy in RAM may therefore be an infringing copy.

2. Original section 296. The original provision required knowledge or reasonable belief that the device would be used to make infringing copies. It did not prohibit dealings in devices solely because they circumvented copy-protection. Where chips were sold to UK customers, that requirement was satisfied. Where chips were intended for foreign use, the position depended on the facts and could not be resolved summarily. Advertising to both UK and foreign customers did not necessarily establish the required knowledge in respect of each individual chip.

3. Amended section 296. The same reasoning concerning infringing copies and foreign use applied to the amended provision concerning computer programs. The Messiah2 chip had no authorised purpose merely because it might facilitate back-up copies or use of games on consoles from another region. Section 50A did not assist on the evidence.

4. Sections 296ZA and 296ZD. Section 296ZA applied to a person who knowingly circumvented effective technological measures. Section 296ZD imposed strict liability for specified dealings in devices promoted, marketed or primarily designed to facilitate circumvention. Advertising and possessing Messiah2 chips for commercial purposes for UK customers constituted a breach, although the extent of liability for circumvention abroad remained fact-dependent.

5. Location of protection. The statutory provisions did not require copy-protection to be located solely on the software. A lock-and-key system distributed between software and hardware was within the legislation. What mattered was the existence and function of the protection, not its physical location.

6. The summary judgment application succeeded only to the extent established by the undisputed facts. Liability under the original section 296 for activities other than sales to UK customers required examination of the defendant’s commercial operations and could not be finally determined on the application.

First-instance decision. No prior appellate decision is stated in the judgment.