Advanced Copyright Issues on the Internet - Fenwick & West LLP

Gamemasters(i) Sony Computer Entertainment America v.In this lawsuit, Sony Computer Entertainment America (SCEA) obtained a preliminaryinjunction against the defendants, who were distributing a device called the “Game Enhancer”that enabled players to play Sony PlayStation games sold in Japan or Europe, and intended bySCEA for use exclusively on Japanese or European PlayStation consoles, on U.S. PlayStationconsoles. 531 The Sony PlayStation console was designed to operate only when encrypted datawas read from a game CD-ROM verifying that the CD was an authorized, legitimate productlicensed for distribution in the same geographical territory of the console’s sale. 532The Game Enhancer enabled a player to trick a U.S. PlayStation console into playing aJapanese or European authorized game CD by the following method. After inserting anauthorized CD game, the user was instructed to hold down the disk cover switch of the consolewhile keeping the lid or disk cover open. The Game Enhancer was then turned on and itsinternal operating system selected for execution, thereby replacing the PlayStation console’sinternal operating system. The validity and territorial codes were read from the authorized CD,thereby instructing the console that the inserted CD was valid and authorized. The user was theninstructed to hit the “select” button on the game controller to signal the console to stop the CDmotor, enabling the player to remove the U.S. authorized game CD and replace it with a CD thatwas authorized for play only on a Japanese or European console. Once the game was loaded, theGame Enhancer then returned control to the PlayStation’s operating system, and theunauthorized game could be played.The court ruled that, because the Game Enhancer was a device whose primary functionwas to circumvent the mechanism on the PlayStation console that ensured the console operatedonly when encrypted data was read from an authorized CD-ROM, the Game Enhancer had aprimary function to circumvent a technological measure that effectively controls access to acopyrighted work and was therefore a violation of Section 1201(a)(2)(A). The court ruled thatSCEA was therefore entitled to a preliminary injunction against sale of the device under Section1203. 533 (ii) DirecTV, Inc. v. BorowThis straightforward case found defendant Randy Borow in violation of Section1201(a)(1) for using an emulator to circumvent DirecTV’s encryption on its signals and tosimulate certain functions of the DirecTV access card in order to watch DirecTV’s programmingwithout paying subscription fees. 534531532533534Sony Computer Entertainment America v. Gamemasters, 87 F. Supp. 2d 976, 981 (N.D. Cal. 1999).Id.Id. at 987-88. A similar case finding a violation of the DMCA as a result of sales of a cable descrambler anddecoder is CSC Holdings, Inc. v. Greenleaf Electronics, Inc., 2000 U.S. Dist. LEXIS 7675 (N.D. Ill. 2000).DirecTV, Inc. v. Borow, 2005 U.S. Dist. LEXIS 1328 (N.D. Ill. Jan. 6, 2005), at *3 & *12-13.- 128 -