Archives for July 2002

An Australian judge has ruled that the Australian version of the DMCA does not apply to the sale of “mod chips” for Sony PlayStation game consoles.

Technological background: Sony PlayStation is a game console that plugs into the back of a TV. PlayStation games come on a compact disk that is plugged into a CD drive on the PlayStation console. The disk contains a kind of authentication code that can be verified by the console, and the console refuses to play games that lack the authentication code. The “mod chips” sold and installed by Mr. Stevens change the console so that it will accept CDs that lack the authentication code.

I read the judge’s ruling as saying that under Australian law, mechanisms that merely authenticate content, as opposed to preventing it from being copied or from being accessed on standard CD drives, are not really copy control devices, and thus the Australian DMCA does not apply to them. Under the judge’s reasoning, a scheme that encrypted the CD’s contents (as opposed to merely authenticating them) would be covered. So this decision appears to be of limited application.

Laws like this are often vague about what they cover and what they don’t. I suspect that this vagueness reflects the drafters’ confusion about what they were trying to do. (Sometimes vaguely worded statutes reflect an artful compromise between legislative factions, but I don’t think that’s the case here.)

Ben Edelman, a soon-to-be law student at Harvard, has filed, with help from the ACLU, a lawsuit challenging restrictions on his right to disassemble and study a Web censorware product from a company called N2H2. The suit challenges the validity of an anti-tinkering clause in N2H2’s license agreement, and of the DMCA provisions that apply to Edelman’s proposed research. The complaint filed by Edelman and the ACLU is light on technical details about N2H2’s product.

Edelman says he wants to tinker with N2H2’s product, in order to determine the list of Web sites that it blocks, and to create and distribute a software tool that lets others extract the list (in case the list changes).

It looks like the main event will be the challenge to the license agreement, with the DMCA issues more remote and hence less likely to be ruled upon by the court. It seems to me that if the Court upholds the validity of the license provisions, then the DMCA issue is moot. And the DMCA’s prohibition on acts of circumvention doesn’t apply, because there is an exception that protects efforts to extract the blocking lists of censorware products. That exception doesn’t apply to the dissemination of technologies for extracting blocked-site lists, so Edelman’s distribution of his proposed list-extraction tool would appear to be prohibited by the DMCA.