Advanced Copyright Issues on the Internet - Fenwick & West LLP

(iii) Sony Computer Entertainment America v. DivineoIn Sony Computer Entertainment America, Inc. v. Divineo, 535 the court granted summaryjudgment to the plaintiff that several devices sold by the defendant violated the anticircumventionprovisions of the DMCA. The devices all could be used to circumvent anauthentication process designed by Sony into the Playstation system to verify that an inserteddisc was authentic before the Playstation would play it. If a user burned a copy of a copyrightedPlaystation game, a unique code that was part of every authentic disc would not be copied, thuspreventing the user from playing the copy on the Playstation. The defendant sold the followingdevices that could be used to circumvent this process: (i) HDLoader, software that permitted auser to make an unauthorized copy of Playstation-compatible video games onto a separate harddrive connected to the Playstation system; (ii) mod chips that, when wired to a Playstationconsole, circumvented the authentication system and allowed the system to play theunauthorized software; and (iii) devices that allowed a user to boot up a Playstation console andperform a disc swap without triggering the software and hardware mechanisms within thePlaystation that initiated the authentication system. 536The defendant argued against liability on the ground that there were several ways inwhich the devices could be used that did not result in infringement of the plaintiff’s copyrightedvideo games. First, the devices could be used to allow more than 150 items of “homemade”software to execute on the Playstation. Second, software developers could use the devices to testtheir own games as a less expensive alternative to purchasing a specialized Sony console thatwould run any game. Third, HDLoader made playing games more convenient by allowing usersto avoid having to swap out discs to change games and because the Playstation could read harddrive data more quickly than data stored on CDs or DVDs. The defendant also gave a legalnotice on its web site warning users that they were responsible for the legality of their own use ofmaterials obtained through the web site. 537 The defendant also invoked the reverse engineeringdefense of Section 1201(f) of the DMCA, arguing that users of mod chips could use them toensure the interoperability of an independently created computer program with the Playstation. 538The court rejected all of these arguments, holding that the challenged devices wereprimarily designed for the purpose of circumventing the Playstation authentication system whichotherwise controlled access to software played on the system, and that “downstream customers’lawful or fair use of circumvention devices does not relieve [defendant] from liability fortrafficking in such devices under the DMCA.” 539 The court also ruled that the defendant’s legalnotice to users of its devices was not relevant to its own liability under the DMCA. 540 Theapplication of the court’s ruling to the Section 1201(f) interoperability rights is interesting. It535536537538539540457 F. Supp. 2d 957 (N.D. Cal. 2006).Id. at 958-59.Id. at 961.Id. at 965.Id.Id.- 129 -