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PS3 hack: The state of Play

Insight: Lawyer Mark Weston brings us up to speed with Sony vs Geohot...

So, PS3 has been hacked wide open - and Sony, understandably, has taken legal action against the perpetrators. But how strong is the platform holder's case, and what can Nintendo's history of battling hackers tell us about what might happen next? Mark Weston, a Partner at UK law firm Matthew Arnold & Baldwin LLP fills us in...

In the middle of last year, Nintendo obtained summary judgement (i.e. no trial, all done on the paperwork) in its claim against the importer of a mod chip product.

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The device circumvented Nintendo's technological copy-protection measures intended to stop unlawful copies of games running on its DS games console. It slotted into the Nintendo DS and had a memory card facility that could connect to a computer from which pirated copies of the games could be obtained.

The product contained specific parts enabling it to pass Nintendo's tests that are intended to verify that a relevant game is legitimate - and in so doing the device enabled unlawful copies to be used with the DS. The creator (Playables) claimed that it did not know that the devices would be used for an unlawful purpose - as it could be used for legitimate home-made games, or Homebrew.

However, the UK High Court rejected that argument, saying that two provisions of the Copyright Designs and Patents Act 1988 were broken. One involved strict liability, meaning that knowledge was not needed - just the fact that the device circumvented the security measures; the mere fact that the device could be used for a lawful purpose was not a defence.

Another section of the Act - this time involving knowledge - was also broken because Playables had reason to believe that the device would be used to make infringing copies of the games. The use of R4 cards (which the device contained) was very well known to be used for video game piracy.

Given that 165,000 devices had been seized and the facts that only a relatively minor proportion of the market represented lawful use, it was not credible to argue that Playables did not know the devices would be used for infringing copies. Accordingly, Playables had no realistic prospect of success and Nintendo's summary judgement application was granted.

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The gaming console piracy saga now continues - this time in the USA. Last month, Sony filed proceedings in the Northern District Court of California against a number of hackers who published security codes for the PS3. Again, these security codes effectively "sign" software, including pirated games, as being genuine, and allow that software to be used on the console.

In the documents filed at the court, Sony argued that such actions were facilitating the distribution and effectiveness of pirate games. Those accused deny that they support the piracy of video games... a similar defence to that heard in the Nintendo case last year.

However, the battle between console manufacturers and users who take the view that having bought a console it is "theirs", is entering a field of procedural dirty tricks.

The initial hearing of Sony's claim against PS3 hacker George "Geohot" Hotz has been pushed back to an unspecified date because the San Francisco judge raised a procedural question as to whether it was right, given that Hotz's acts happened in New Jersey, for the case to be heard in California.

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