Australia: Stevens V Sony: A Set-Back for Copyright Owners

Last Updated: 17 October 2005
Article by Campbell Thompson and Genevieve Wilkinson

The High Court issued a rare judgment under the Copyright Act (Act) on 6 October 2005. In a set-back for copyright owners, the court ruled in Stevens v Sony that the sale of 'mod chips' by Mr Stevens for use with Australian Playstation consoles did not breach the anti-circumvention provisions of the Act.

All CD-ROMs containing 'official' Playstation games include a string of encrypted data (access code) which the boot ROM in the Playstation console searches for when a CD-ROM is inserted in the disk-drive. If the boot ROM does not find the access code, the game cannot be played. The access code cannot be copied by conventional means so most illegally copied disks do not contain the code. And 'genuine' games intended for regions other than Europe and Australia have a different, and unrecognised, access code. This system (the Sony system) allows Sony to protect its exclusive licensees in different geographic markets against the twin evils of piracy and parallel importation. Mod-chipping undermines this strategy by enabling local Playstation users to play genuine, but often cheaper, imported games as well as pirated copies. It does this essentially by telling the boot ROM to ignore the absence of the access code.

The Act now runs to over 500 pages and is replete with examples of complex, or convoluted, drafting. The anti-circumvention provisions, which are not concerned with copyright infringement as such but rather with 'anti-spoiler devices which ... allow the side-stepping of technical barriers to copying', are no exception. In the Stevens litigation the issue before the High Court was whether the Sony system was or included a 'technological protection measure'. If so, the sale of the mod chips would have breached the anti-circumvention provisions. Relevantly, 'technological protection measure' is defined in the Act as follows:

'a device … that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work … (a) by ensuring that access to the work … is available solely by use of an access code or process … with the authority of the owner or licensee; or (b) through a copy control mechanism'.

Inhibiting infringement

Sony’s primary argument that the Sony system was a technological protection measure depended on a broad reading of inhibit. It argued that to 'inhibit' infringement included not just steps taken which may directly inhibit particular acts of infringement, but also anticipatory steps which may discourage people from infringing, by making their infringing copies unplayable and therefore worthless.

The court rejected this interpretation, holding that for a device to be a 'technological protection measure' it must be designed, by reason of its physical operation, to bring about a particular result. In particular, the operation of the device must directly prevent or inhibit infringing acts, by preventing or inhibiting either access to the work or the making of copies. Although in a practical sense the Sony system did inhibit access to the work to play the game (as CD-ROMs without the access code could not be played on the console), the system did not operate to prevent or inhibit the infringement of copyright in the work by the making of an illegal copy of the game—ie by burning a CD-ROM. In short, the Sony system only affected the usability of copied games and did not inhibit people in any way from making antecedent copies, albeit that if the system worked these would be worthless.

This ruling may seem very narrow and literal. The term inhibit can readily bear the meaning discourage which the court rejected and indeed, the full Federal Court had preferred this broad construction. In part, this case exemplifies the approach of the current High Court to statutory interpretation. The court noted that although the Acts Interpretation Act dictates that courts take a 'purposive' approach to interpretation, in complex legislation such as the Copyright Act it is usually impossible to discern any clear legislative purpose outside the text of the Act itself, beyond an intention to reach an opaque compromise between competing interests. In such cases no purposive rule of construction can, in the court’s view, 'obviate the need for close attention to the text and structure' of the relevant provisions.

Following a close textual analysis, the court pointed to some general considerations favouring a narrower construction of the definition which included:

  • The penal character of the relevant provisions–ie a person selling a circumvention device may be liable for imprisonment for up to five years. This consideration will be even more important in future cases under the Copyright Act, with the broadening and strengthening of the penal provisions of the Act to implement Australia’s Free Trade Agreement with the United States.
  • The provisions are designed to assist copyright owners to enforce their copyrights–accordingly, these provisions should not be read in an overbroad way which would effectively extend the copyright monopoly rather than match it, by preventing the carrying out of conduct which does not infringe copyright and is not otherwise unlawful.

Other arguments

Sony argued that if it was wrong on the meaning of inhibit, the playing of a Playstation game was in any event also an infringement either of the literary copyright in the computer program for the game or the film copyright in the game. If so, then the Sony system was a 'technological protection measure' because it clearly inhibited the playing of games. However, the court ruled against Sony on these further arguments also. Its reasoning was broadly as follows:
  • The only copying of a computer program which results from playing a computer game is the temporary copying of parts of the program in the RAM of the console. To infringe copyright, a copy has to take a material form. The court ruled that copies held in RAM will normally not be in a material form because RAM is not normally a form of storage from which the program or a substantial part of it can be further reproduced. (Significantly, since 1 January 2005 the definition of material form no longer contains this requirement. So there would seem to be scope for Sony to re-argue this aspect of its case in a subsequent proceeding).
  • The parties agreed that interactive computer games are protected by copyright as films as well as computer programs. The court proceeded on this basis (whilst expressing some tentative doubt about this) but found that there was no or inadequate evidence that the playing of any of the computer games in evidence involved the reproduction of a substantial part of any cinematographic film.


This immediate result is a set-back for copyright owners and has broader lessons for the interpretation of the Act. The court was apparently strongly influenced by its view that the Act is in essence a legislative compromise between copyright owners and users and that the balance struck is necessarily to some extent arbitrary. In these circumstances, the court considered that any exercise of finding legislative intention of the Act outside the text of the Act is likely to be fruitless. One may speculate that this will only lead to even more frequent amendments of the Act as the parliament attempts to plug perceived loopholes resulting from Stevens v Sony and other decisions in its footsteps.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.