Author: Melchor Inigo Raval, Monash University

Topic
It is generally accepted that the internet has had a real impact on a variety of traditional creative industries. The internet provides a medium through which there is great potential for Australian users to infringe copyright in music and films and commit   classification offences such as selling or distributing unclassified films and computer games. How should the law respond to these challenges? 
You may choose to address either classification or copyright, or both, in your response. In your response you may like to examine any of the following issues:
  • Should the law control or guide the market and business practice?
  • Should internet service providers be held responsible for breaches of copyright and classification laws or should the law target the end-users directly?
  • What are the ways in which international jurisdictions have approached these problems.

Abstract

This piece examines the challenges facing the application of copyright law in the Internet age. The balance of copyright owner and user rights are compromised by technological overprotection and legislative ineffectiveness. It is proposed that the law can respond to these challenges by recognising the cultural norms which guide consumers to defy copyright law and technological protection measures. The author also recommends alternative perspectives and solutions into this issue.

I. Introduction

The Internet and data digitisation have revolutionised information production and distribution of copyright works. Works can be transmitted anywhere in the globe for negligible cost and without impairing the quality of the information. Right holders are increasingly utilising technology protection measures (TPM) to prevent illegal reproduction or piracy of works through digital rights management (DRM) methodologies that restrict access and reproduction. Taking these issues together, there exists a challenge on how the law should be applied in light of this underlying tension between the interests of copyright owners and users. In this case, how should the law respond to the increased threat of copyright infringement?

The author posits that this challenge cannot be solved by mere application of law and technology, as data digitisation has spawned a culture that guides consumers to defy copyright law and TPMs. This piece aims to understand this cultural aspect and the need to maintain the coveted balance of owner and user rights in the digital age, using the video gaming industry as a case study. The exploration will begin by examining the need to maintain the balance between copyright owner and user rights in the advent of digital technology under the WIPO Treaties and the recent AUSFTA amendments in Australia. This will be followed by an analysis of the copyright issues of overprotection and piracy in the gaming industry, with particular emphasis on how the culture of piracy has become the norm as illustrated by the Sony Computer Entertainment America LLC v. Hotz et al case.[1] This piece will conclude by recommending two methods for the law to guide the parties to ensure that the balance of interests is maintained.

II. The Ménage Trois from Hell - Internet, Digitisation and Copyright Law

The philosophy and necessity of maintaining the balance of rights in any copyright regimes between owners and users has been universally acknowledged since the Statute of Anne in 1709. Copyrights is a set of legal exclusive rights provided to content owners with returns for their investment, balanced by a carefully considered set of exceptions such as private copying for research purposes.[2] The rationales for copyright protection are moral and economic.[3] Moral justifications for copyright include the need to reward labour, the author’s right to control the work, and the need to discourage theft of property.[4] Economic justifications include the need to provide an incentive to create new works and the need to remunerate the creator for creating them.[5] Likewise, copyright protection is considered to be in the public interest as it encourages learning, the sharing of information and the promotion of culture.[6] These set systems allows for copyright law to support and build social relations, communities, economic growth and encourage unpredictable sources of innovation.

Traditionally, copyright provided content owners legal control over the production of copies of the work and distribution of copies to be sold at a price providing a profit. Such copyright systems worked well because the resources to produce and distribute copied material were relatively expensive, and copy degradation was unavoidable. However, the task of enforcing copyright laws and maintaining this balance of rights has become difficult in an increasingly digitised society as works are no longer confined in tangible materials but rather, utilises digital dissemination of works through networks and computers. The state of the internet has not only defined how content is distributed, but how it is created, financed and protected. While industries have reaped the rewards of digital technology and the Internet, the dissemination of information has led to a dramatic escalation of copyright infringement more commonly known as piracy. The GAO Intellectual Property report found the development of technologies that enable the unauthorised distribution of copyright works is the currently the largest challenge to copyright enforceability.[7] Technology has made free-riding infringement in the form of piracy so simple that almost any individual can acquire copies of any content at no cost to the individual. Indeed, a report by Sirinelli recognises that digital technology gives rise to significant risks for right owners because it can easily be used to reproduce, store, transmit, or manipulate works of authorship without quality degradation.[8]

Policy-makers and copyright industries have responded in two ways: legal and technology. The principal legal response to the threat of mass piracy is pre-empted by the WIPO Treaties, which enables Member States make mandatory inclusion of TPMs in their respective copyright legislations in order to protect copyright works in the face of widespread piracy brought possible by advancing technology.[9] In conceptualising the protection of TPMs against circumvention devices, the WIPO Standing Committee on Copyright and Related Rights (SCCR) raised a number of concerns about their impact on competition and innovation. This is reflected in the preamble to the WIPO Copyright Treaty (WCT), which recognises the need to maintain a balance between the rights of authors and the larger public interest, particularly in relation to education, research and access.[10] In its aim to conceptualise a defence for right holder interests against circumvention of TPMs, the WIPO gives Member States the ability to apply the obligation in their own discretion.[11] Australian policy-makers have also expanded the TPM and anti-circumvention device provisions in light of the Australian - US Free Trade Agreement (AUSFTA) under Chapter 17, which are implemented in s.10(1) of the Copyright Act 2006 (Cth).

Secondly, the primary industry response to the proliferation of pirated material so far has been the development of DRM. DRMs are used on both physical mediums such as CDs, and digitally distributed content available in online services such as iTunes. Copyright owners claim DRMs are necessary to prevent infringement of their intellectual property rights, and the vast majority of legitimate users are completely unaffected by DRM.[12] However, the inclusion of DRMs is argued by consumers to infringe the rights of legitimate consumers to use their lawfully purchased goods.[13] Moreover, experts argue that DRMs are counterintuitive to the cyber norm culture itself, which “accepts downloading of music and films as a norm and [is] morally acceptable.”[14]

Not surprisingly, these methods that were intended to mend the dilemma of intellectual property in the digital world have inevitably caused a distortion in the balance of rights that copyright law must maintain. In the case of overprotection and piracy; Flew, Leisten and Hearn postulates that:

“Laws which criminalise significance sections of the population should only be implemented when benefits clearly outweigh social costs. Laws which are regularly broken by a wide cross-section of the public, to which authorities frequently turn a blind eye, are most likely in need of change.”[15]

A key question that must be asked is how the law can provide guidance to the industry in protecting their work, whilst allowing users to access the content without unnecessary impediment. This piece aims to explore this question using the lucrative Australian video gaming industry. 

III. Overprotection and Piracy in the Gaming Industry

The advent of digital technologies and the internet has contributed significantly to the Australian media and entertainment industries, with a recent report by the PricewaterhouseCoopers predicting the industries will earn up to $37.2 billion by 2015.[16] According to the same report, consumer spending in the Internet will top $11.5 billion, growing at 4.6% to $7.2 billion, with advertising growing at 13.5% to $4.3 billion.[17] Interactive gaming in Australia is expected to be the biggest winner, with the local gaming industry revenue set to rise by $433.85 million throughout 2011.[18] Australians spent $290,800,532 on games, and 871,548 game systems were sold[19]. Moreover, almost half of Australia’s 16.2 million adults have a game console, and the number is climbing yearly.[20] These figures show the gaming sectors in the media and entertainment industries are immensely profitable and influential in Australia. As McLean asserts “videogames are not the ugly sister of the entertainment industry anymore but a recognised segment of the media industry[21]. Piracy however continues to plague the media and gaming industry. The Australian Federation against Copyright Theft claim the Australian economy loses $1.3 billion a year through illegal movie piracy over the Internet.[22] The Interactive Entertainment Association of Australia (IEAA) also reported the video game industry lost $840 million to piracy.[23] A combined effort by policy-makers in Australia and the industry have attempted to curb illegal piracy through both legal and technological means.

In the first instance, allegations from the U.S. Trade Representative that the Australian copyright law provided insufficient protection to online content and not fully implementing international obligations to protect intellectual property[24] resulted in the Australia-US Free Trade Agreement (AUSFTA), which was enacted in 2006.[25] Chapter 17 of the AUSTFA expanded the TPM definition, to include the terms ‘access control technological protection measure’ and ‘control access’.[26] Moreover, the AUSTFA significantly widened the definition of ‘circumvention device’[27] by prohibiting both the use and commercial dealing of a device solely designed or produced to facilitate circumvention of a TPM.[28] Supporters of Chapter 17 AUSFTA state the harmonisation will encourage investment by US industries who will be comfortable with the security of laws, and will reduce the transaction costs across borders[29]. Toni Harmer of the Department of Foreign Affairs and Trade also state that the amendments “contains flexibility... to implement that in a way that is appropriate for us”, whilst implementing Australia’s treaty level obligations[30].

Not surprisingly, industry members have utilised the amendments in not only litigating pirates, but also parties who attempt to circumvent TPMs. For instance, Nintendo have been extra vigilant in litigating pirates, successfully winning $1.5 million against a pirate for the illegal copying and uploading of Wii games to the Internet[31]; and the seizure of R4 cards aimed at circumventing the TPM of the Nintendo DS console.[32] Coupled with the amendments, Nintendo are also using advanced TPM in the 3DS console to prevent piracy by recording the use of circumvention devices in the system[33] and by rendering the game or system unplayable if such devices are detected.[34] However, consumer advocates have expressed outrage at these recent developments in copyright protections. They argue the cumulative protection afforded by technology and the law “represents a willingness on the part of some independent judicial authorities to reign in unlimited copyright protection.”[35]

Apart from the issues of legal overprotection, which belies an anti-DRM atmosphere as gamers express that DRMs are “corporate bullshit” and the technology “encourage chipping, imports and piracy."[36] This is clearly the position that many industry members are realising since DRMs, according to Good Ol' Games marketing manager Luksz Kulawski, "drives people to pirate games rather than prevent them from doing that". These views are indicative of the futility of the TPM provisions and DRM, and studies have clearly shown that law and technology have not ceased the mass piracy and rebellion amongst consumers.[37] For example, the Entertainment Software Association found 9.78 million illegal video game copies were downloaded worldwide in December 2009.[38] In Australia, the IEAA measured 51% of pirated games in Australia come from copies made by family and friends.[39] As such, technological measures are clearly ineffective because the means of circumvention are a few mouse-clicks away for gamers and available on most computer systems in household. Circumvention devices in the form of modification chips can easily be purchased online and video tutorials of circumventing the TPMs are also accessible.[40]

These problems highlight a misunderstood factor which the law and industry misinterprets as the primary issue - that is - piracy and hacking are now the norm. The normality of piracy in this age is perpetuated by the fact that “as long as we are rational human beings, we will pirate because piracy is the rational thing to do”.[41] Adams adds that “when enough people feel that it’s OK to do a thing, that thing ceases to be wrong in their own cultural context."[42] On the other hand, Ogbu asserts that intellectual property law fails to be legitimate because of the "vagueness about what is and what is not permissible".[43] As such, some "netizens" may conclude that everything online is in the public domain and can be used or distributed freely.[44] Moreover, piracy has become so "largely ubiquitous now... they're simply doing it because it's easy".[45] Such justifications, according to Choi and Perez, derive from the "open-source" distribution protocols by which the early technologists and scientists interacted.[46] This is evident in the gaming culture which revolves around file sharing and distribution made possible by the cooperation between pirates and gamers, illustrated by the highly publicised GeoHot case. In the GeoHot case, popular hacker George Francis Hotz, also known as GeoHot, was sued by Sony under s. 1201 of the Digital Millennium Copyright Act after successfully circumventing the technological protection measures of the Sony Playstation 3, despite his claims that he hacked the Playstation 3 “to provide users a legitimate path to homebrew".[47] The case brought the ire of gamers and hackers, accusing Sony of denying them the ability to modify their legitimately purchased consoles.[48] Consequently, the gaming and hacking communities donated money to GeoHot to aid his legal claims.[49] The case was eventually settled out of court[50], but the ordeal did illustrate that where the policy inaccurately reflects social norms, a backlash may result, causing non-compliance with the law.[51]

In light of the issues presented above, the question of how the law can respond to these challenges presents itself. In this case, two positive observations are available. Firstly, DRM is a neutral technology, and it only becomes damaging if monopolistic pricing practices are used.[52] Secondly, the goal should not be a DRM environment that only protects the interests of right holders, but a "symmetric DRM environment" which protects the legitimate interests of both parties.[53]

IV. Recommendations

With the increased assimilation of the Internet in our daily lives, piracy has become even more widespread. Investments into DRMs and overprotective policies have obviously done nothing in changing consumer behaviour towards piracy. Indeed, there is a general realisation that reliance on technological protection to protect content and the belief that the “answer to the machine is the machine” is but futile. Moreover, experts have determined that DRMs are likely to inhibit, restrict, or altogether prevent many legally authorised used.[54] There is also lack of confidence or belief that intellectual property law can and will subsist in a digitised society. Therefore, the balance remaining in copyright policy is threatened, as established above. But how can the law respond to this challenge, whilst maintaining the balance? The author posits that with these observations, two recommendations can be made: (1) modifying business models to promote customer interaction and; (2) the recognition of cultural norms.

(1) Modifying Business Models to Promote Customer Interaction

Firstly, the law should shift from overprotection and instead encourage companies to modify business models to harbour communities by providing “user-friendly, hassle-free solutions” to technologies and “finding and interacting with fans, so that value comes from a relationship.”[55] Choi and Perez suggest companies should identify mutually beneficial relationships with communities in the Internet and foster a creative environment to participate in the creative process.[56] For instance, popular independent game Mount&Blade is praised for including players in the development process and allowing players to modify aspects of the games to create and change gameplay aspects.[57]

Alternatively, copyright enforcement and cultural norms can co-exist in harmony by getting "the basics right" -that is- exploring new business models and delivery methods which "give the people what they want, at what they consider to be a fair price".[58] Observing how pirates distribute content can perhaps be the solution, as Fahey argues that “pirates can distribute your software more quickly, to more people, at a lower cost and more efficiently than your own distribution methods can and the product they distribute is often more functional and appealing, with fewer restrictions on consumers’ use of it, than the one being distributed.”[59] In any case, piracy will never be fixed[60] but some industry experts believe that pirates can be converted to customers by simply delivering quality content worth buying[61] and by treating legitimate customers with respect.[62] 

(2) The Recognition of Cultural Norms

The law can guide proper consumer behaviour by recognising that there is an underlying cultural norm in the Internet. Recognition of this norm is especially important in this context because there is a "lack of public feeling that breaking intellectual property is wrong" and "in the absence of such a conception, there is little reason for people to follow" the laws.[63] In this case, Vitale asserts that for the legislation to effectively guide the market, the legislation must be tailored to the cultural aspects of society because ignoring these cultural norms contributes to the lack of efficacy of laws created to protect the industry.[64] This was exemplified in the controversial Stevens v Kabushiki Kaisha Sony Computer Entertainment case, where the High Court acknowledged that in interpreting the law, a number of considerations must be observed to "protect the fundamental rights of the individual"[65] as the "implications of the online environment" introduces difficulties in the application of the conventional model of copyright law; and adapting the law to international economic and legal pressures.[66] On the other hand, Tyler argues that for copyright law to be effective in guiding consumer behaviour, legal authorities need to focus on creating the values that underlie voluntary compliance with the law.[67] Once these values and norms are recognised, policy makers and industries can gain an understanding of how consumers will receive and react to regulation.[68] 

V. Conclusion

Maintaining the balance of copyright users and owners in a digitised society is a monumental task, and the Internet's impact upon society and cultural norm have a reached a critical apex where one can no longer ignore the regulatory and cultural issues. As David Wiadrowski ,head of technology, information, communications and entertainment explains, all sectors of the entertainment and media industry are undergoing a cultural transformation as they adjust to the digital world, where empowered consumers often expect content for free.[69]

Reference List

Adams, Ernest, The End of Copyright, (2005), Gamasutra, <http://www.gamasutra.com/features/20051128/adams_01.shtml>, at 13 July 2009, 1.

Ashcraft, Brian, Nintendo Is So Not Screwing Around with the 3DS Piracy (2011), Kotaku, <http://www.kotaku.com.au/2011/03/nintendo-is-so-not-screwing-around-with-3ds-piracy/>, at August 2011.

Bechtold, Stefan, "Digital Rights Management in the United States and Europe" (2004) 52(2) The American Journal of Comparative Law 328.

Bowden, Mike, Piracy Will Never Be Fixed, Says SI Games Boss (2011) VG247, <http://www.vg247.com/2009/01/20/piracy-will-never-be-fixed-says-si-games-boss/>, at August 2011.

Broughall, Nick, Movie Piracy Costs Australian Economy $1.3 Billion According to AFACT (2011), Gizmodo, <http://www.gizmodo.com.au/2011/02/movie-piracy-costs-australian-economy-1-3-billion-according-to-afact/>, at August 2011.

Brown, Ian, ‘The evolution of anti-circumvention law’, (2006) 20(3) International Review of Law, Computers and Technology 1.

Choi, David and Perez, Arturo ‘Online Piracy, Innovation and Legitimate Business Models; (2007) 27(4) Technovation, 168.

Dellit, Elouise and Kendall, Christopher N, "Technological Protection Measures and Fair Dealing: Maintaining the Balance Between Copyright Protection and the Right to Access Information" (2003) 4(1) Digital Technology Law Journal, 1.

Edwards, Tim, Notch on Piracy: "If A Pirated Game is a Lost Sale, Should Bad Reviews be Illegal?" (2011) PCGAMER, <http://www.pcgamer.com/2011/03/02/notch-on-piracy-if-a-pirated-game-is-a-lost-sale-should-bad-reviews-be-illegal/>, at August 2011.

Fahey, Robert, The Forbidden Kingdom (2009) Eurogamer, < http://www.eurogamer.net/articles/the-forbidden-kingdom-article>, at July 2009. http://www.hexus.net/content/item.php?item=26546

Familari, Peter, ‘Hi-tech stimulus splurge’, Herald Sun (Melbourne), 16 September 2009, 27.

Fisch, Ian, Fighting Piracy: Bring on the Lawsuits!, (2009) Gamasutra, <http://www.gamasutra.com/blogs/IanFisch/20090504/1318/Fighting_Piracy_Bring_on_the_Lawsuits.php>, at August 2011.

Flew, Terry, Leisten, Sussana and Hearnn, Gregory, "Alternative Intellectual Property Systems For The Digital Age" (2005) (114) Media International Australia 87.

Fry, David, "Circumventing Access Controls under the Digital Millenium Copyright Act: Analyzing the SECUROM Debate" (2009) Duke Law and Technology Review 5, 2.

Gaming Tip To Be Big Winner', Herald Sun Business (Melbourne), 1 August 2011, 1.

GeoHot is Asking for your Donation! (2011), PS3Cruch <http://www.ps3crunch.net/geohot-donation.html>, at August 2011.

Gillen, Kieron, The Horse's Mouth: Mount& Blade Interview (2011) Rock Paper Shotgun, <http://www.rockpapershotgun.com/2008/10/01/the-horses-mouth-mount-blade-interview/>, at August 2011.

Good, Owen, ESA Estimates Nearly 10 Million Games Illegally Download In December (2010) Kotaku, < http://www.kotaku.com.au/2010/02/esa-estimates-nearly-10-million-games-illegally-downloaded-in-december/>, at August 2011.

Goodin, Dan, Sony Buries Hatchet with GeoHot in PS3 Modding Case: Jailbreaker Promises No More Console Hacks (2011), The Register <http://www.theregister.co.uk/2011/04/11/sony_geohot_settle_playstation_suit>, at August 2011.

Grayson, Nathan, Good Old Games: DRM's Effectiveness "Close-to-None", Often Causes Piracy (2011) VG247, <http://www.vg247.com/2011/04/13/good-old-games-drms-effectiveness-close-to-none-often-causes-piracy/>, at August 2011.

Guller, Martina and Sutter, Gavin, "DRMs and Anti-Circumvention: Tipping the Scales of the Copyright Bargain?" (2006) 20(3) International Review of Law, Computers and Technology 287.

Hewitt, Dan, U.S. Copyright Industries Release Report Exposing Countries that Violate Intellectual Property Rights (2009) Entertainment Software Association, <http://www.theesa.com/newsroom/release_detail.asp?releaseID=47> , at August 2011.

Hickey, Matt, Sony and GeoHot Settle PS3 Jailbreaking Case (2011), CNET News, <http://news.cnet.com/8301-17938_105-20052883-1.html>, at August 2011.

Interactive Entertainment Association of Australia, IA9: Interactive Australia 2009 (2009) <http://www.ieaa.com.au/research/IA9%20-%20Interactive%20Australia%202009%20Full%20Report.pdf> at August 2011.

Ip, Barry and Jacobs, Gabriel, 'Territorial Lockout - an international issue in the videogames industry' (2004) 16(5) European Business Review 511.

Is Piracy Stealing? (2011), The Sydney Morning Herald, <http://digihub.smh.com.au/node/2022>, at August 2011.

Koha, Nui Te, ‘We can be heroes’, Sunday Herald Sun Play (Melbourne), 13 September 2009, 10.

Kuchera, Bem, Sony Granted Temporary Restraining Order against PS3 Hacker (2011) Ars Technica, <http://arstechnica.com/gaming/news/2011/01/sony-granted-temporary-restraining-order-against-ps3-hacker-george-hotz.ars>, at August 2011.

Plunkett, Luke, Nintendo Goes to Court Again, This Time Over DS Piracy (2010) Kotaku, < http://kotaku.com/5474375/nintendo-goes-to-court-again-this-time-over-ds-piracy>, at August 2011.

Plunkett, Luke, Pirate Ordered to Pay Nintendo $1.5 Million (2010) Kotaku, < http://kotaku.com/5467320/pirate-ordered-to-pay-nintendo-15-million>, at August 2011.

McCullagh, Declan and Homsi, Milana, "Leave DRM Alone: A Survey of Legislative Proposals Relating to Digital Rights Management Technology and Their Problems" (2005) Michigan State Law Review 317.

McMahon, Neil, Nation of Unrepentant Pirates Costs $900m (2011) The Sydney Morning Herald, < http://www.smh.com.au/technology/technology-news/nation-of-unrepentant-p..., at August 2011.

Miller, Corinne, ‘The Video Game Industry and Video Game Culture Dichotomy: Reconciling Gaming Culture Norms With the Anti-Circumvention Measures of the DMCA, (2008) 16(1) Texas Intellectual Property Law Journal 453.

Moses, Ashes, Music Piracy War: Are the Big Labels Wasting their Team? (2011) The Age, <http://www.theage.com.au/technology/technology-news/music-piracy-war-are-the-big-labels-wasting-their-time-20110328-1ccrl.html>, at August 2011.

Mulligan, Deidre K., "Digital Rights Management and Fair Use by Design" (2003) 46(4) Communications of the ACM, 31.

North, Dale, Using Piracy Devices Could Brick Your Nintendo 3DS (2011), Destructoid, <http://www.qj.net/nintendo-ds/news/3ds-will-brick-upon-piracy.html>, at August 2011.

Ogbu, Cecilia, " I Put Up a Website About My Favorite Show and All I Got Was This Lousy Cease-

And_Desist Letter: The Intersection of Fan Sites, Internet Culture, and Copyright Owners", (2003) 12 Southern California Interdisciplinary Law Journal 279.

Rasch, Mark, Attack of the Mod Squads (2002), Security Focus < http://www.securityfocus.com/columnists/119>, at September 2009, 1.

Rhinelander, Jason, "Copyright Amid Piracy" (2009), 1.

Rimmer, Matthew, ‘Robber under arms: Copyright Law and the Australia-United States Free Trade Agreement’ (2006) 11(3) First Monday 1.

Schreier, Jason, How To Play Xenoblade Chronicles If You Live in America (2011) Joystiq, <http://www.joystiq.com/2011/08/19/how-to-play-xenoblade-chronicles-if-you-live-in-america/>, at August 2011.

Sookman, Barry B. , "TPMs": A Perfect Storm for Consumers: Replies to Professor Geist" (2005) BarrySookman <http://www.barrysookman.com/2005/03/30/%E2%80%98%E2%80%98tpms%E2%80%99%E..., at June 2011.

Sugden, Paul, "Internet Piracy and Copyright Debates", Marion Quigley (ed), Encyclopaedia of Information Ethics and Security, 391.

Tyler, Tom R., "Compliance with Intellectual Property Law: A Psychological Perspective" (1996) 29 New York University Journal of International Law 219.

United States Government Accountability Office, GAO Report to Congressional Committees, Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods (2010) < http://www.gao.gov/new.items/d10423.pdf>, At August 2011.

Vitale, Jennifer Kim, ‘Video Game Piracy in the Philippines: A Narrowly Tailored Analysis of the Video Game Industry and Subculture’ (2010) 22 Pace International Law Review 297.

Weatherhall, Kimberlee, ‘Locked In: Australia Gets a Bad Intellectual Property Deal’ (2004) Policy: a journal of public policy and ideas 1.  

Which Industries will be the Hottest in 2011? (2011), News.com.au, <http://www.news.com.au/business/which-industries-will-be-the-hottest-in-2011/story-e6frfm1i-1225984902835>, at August 2011.


[1]Sony Computer Entertainment America LLC v. Hotz et al - 3:11-cv-00167-SI [ Hereafter GeoHot].

[2]Terry Flew, Sussana Leisten and Gregory Hearnn, "Alternative Intellectual Property Systems For The Digital Age" (2005) (114) Media International Australia 87, 92.

[3]Elouise Dellit and Christopher N Kendall, "Technological Protection Measures and Fair Dealing: Maintaining the Balance Between Copyright Protection and the Right to Access Information" (2003) 4(1) Digital Technology Law Journal, 1,4.

[4]Ibid, 5.

[5]id.

[6]Barry B. Sookman "TPMs": A Perfect Storm for Consumers: Replies to Professor Geist" (2005) BarrySookman <http://www.barrysookman.com/2005/03/30/%E2%80%98%E2%80%98tpms%E2%80%99%E..., at June 2011.

[7]United States Government Accountability Office, GAO Report to Congressional Committees, Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods (2010) < http://www.gao.gov/new.items/d10423.pdf>, At August 2011, 8. The rapid growth of Internet use, in particular, has significantly contributed to the increase. Digital products are not physical or tangible, can be reproduced at very low cost, and have the potential for immediate delivery through the Internet across virtually unlimited geographic markets.

[8] See Pierre Sirinelli, ‘The scope of the prohibition on circumvention of technological measures: exceptions’, (Paper presented at the conference ALAI 2001 Congress: Adjuncts and Alternatives to Copyright), New York, June 2001, 1, 1.

[9]Ibid.

[10] WIPO Copyright Treaty, opened for signature 20 December, 1996, S. Treaty Doc. No. 105-17, arts 11(entered into force 6 March, 2002). The Preamble recognises the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention.

[11] Ian Brown, ‘The evolution of anti-circumvention law’, (2006) 20(3) International Review of Law, Computers and Technology 1, 5.

[12]Declan McCullagh and Milana Homsi, "Leave DRM Alone: A Survey of Legislative Proposals Relating to Digital Rights Management Technology and Their Problems" (2005) Michigan State Law Review 317, 320.

[13] David Fry, "Circumventing Access Controls under the Digital Millenium Copyright Act: Analyzing the SECUROM Debate" (2009) Duke Law and Technology Review 5, 2.

[14] Paul Sugden, "Internet Piracy and Copyright Debates", Marion Quigley (ed), Encyclopaedia of Information Ethics and Security, 391, 391.

[15] Flew et al above n 2, 3.

[16]'Gaming Tip To Be Big Winner', Herald Sun Business (Melbourne), 1 August 2011, 1.

[17]Ibid.

[18]Which Industries will be the Hottest in 2011? (2011), News.com.au, <http://www.news.com.au/business/which-industries-will-be-the-hottest-in-2011/story-e6frfm1i-1225984902835>, at August 2011.

[19] Peter Familari, ‘Hi-tech stimulus splurge’, Herald Sun (Melbourne), 16 September 2009, 27.

[20] Ibid.

[21] Nui Te Koha, ‘We can be heroes’, Sunday Herald Sun Play (Melbourne), 13 September 2009, 10.

[22]Nick Broughall, Movie Piracy Costs Australian Economy $1.3 Billion According to AFACT (2011), Gizmodo, <http://www.gizmodo.com.au/2011/02/movie-piracy-costs-australian-economy-1-3-billion-according-to-afact/>, at August 2011.

[23] Interactive Entertainment Association of Australia, IA9: Interactive Australia 2009 (2009) <http://www.ieaa.com.au/research/IA9%20-%20Interactive%20Australia%202009%20Full%20Report.pdf> at August 2011, 47.

[24] Matthew Rimmer, ‘Robber under arms: Copyright Law and the Australia-United States Free Trade Agreement’ (2006) 11(3) First Monday 1, 2.

[25] Ibid.

[26]Section 10(1): “A device, product, technology or component (including a computer program)” used by or with the permission of the copyright owner or exclusive licensee.

[27]See Article 17.4.7(a)(ii) of the AUSFTA

[28]ibid. Art 17.4.7.(a)(i).

[29] Kimberlee Weatherhall, ‘Locked In: Australia Gets a Bad Intellectual Property Deal’ (2004) Policy: a journal of public policy and ideas 1, 4.

[30] Senate Select Committee on the Free Trade Agreement between Australia and the United States of America, 2004. Official Committee Hansard, (3 June), at 66.

[31]Luke Plunkett, Pirate Ordered to Pay Nintendo $1.5 Million (2010) Kotaku, < http://kotaku.com/5467320/pirate-ordered-to-pay-nintendo-15-million>, at August 2011.

[32]Luke Plunkett, Nintendo Goes to Court Again, This Time Over DS Piracy (2010) Kotaku, < http://kotaku.com/5474375/nintendo-goes-to-court-again-this-time-over-ds-piracy>, at August 2011.

[33]Brian Ashcraft, Nintendo Is So Not Screwing Around with the 3DS Piracy (2011), Kotaku, <http://www.kotaku.com.au/2011/03/nintendo-is-so-not-screwing-around-with-3ds-piracy/>, at August 2011.

[34]Dale North, Using Piracy Devices Could Brick Your Nintendo 3DS (2011), Destructoid, <http://www.qj.net/nintendo-ds/news/3ds-will-brick-upon-piracy.html>, at August 2011.

[35] Mark Rasch, Attack of the Mod Squads (2002), Security Focus < http://www.securityfocus.com/columnists/119>, at September 2009, 1.

[36]Barry Ip and Gabriel Jacobs, 'Territorial Lockout - an international issue in the videogames industry' (2004) 16(5) European Business Review 511, 514.

[37] Dan Hewitt, U.S. Copyright Industries Release Report Exposing Countries that Violate Intellectual Property Rights (2009) Entertainment Software Association, <http://www.theesa.com/newsroom/release_detail.asp?releaseID=47> , at August 2011. Studies conducted in December 2008 with respect to member-selected game titles revealed that Western Europe is home to some of the world's most active countries engaged in online game piracy: Moreover, the study found that users across 223 separate countries, territories and colonies downloaded illegal copies of games. Downloads of the two most popular titles were estimated to have been made across 219 countries, territories and colonies.

[38] Owen Good, ESA Estimates Nearly 10 Million Games Illegally Download In December (2010) Kotaku, < http://www.kotaku.com.au/2010/02/esa-estimates-nearly-10-million-games-i..., at August 2011. The countries with the highest number of unauthorised downloads were Italy (20.3 per cent of the total) Spain (12.5 per cent), France (7.5 per cent) and China (5.7 per cent).

[39] IA9: Interactive Australia 2009 above n 24, 47.

[40]Jason Schreier, How To Play Xenoblade Chronicles If You Live in America (2011) Joystiq, <http://www.joystiq.com/2011/08/19/how-to-play-xenoblade-chronicles-if-you-live-in-america/>, at August 2011.

[41] Ian Fisch, Fighting Piracy: Bring on the Lawsuits!, (2009) Gamasutra, <http://www.gamasutra.com/blogs/IanFisch/20090504/1318/Fighting_Piracy_Bring_on_the_Lawsuits.php>, at August 2011, 1

[42] Ernest Adams, The End of Copyright, (2005), Gamasutra, <http://www.gamasutra.com/features/20051128/adams_01.shtml>, at 13 July 2009, 1.

[43] Cecilia Ogbu, " I Put Up a Website About My Favorite Show and All I Got Was This Lousy Cease-And_Desist Letter: The Intersection of Fan Sites, Internet Culture, and Copyright Owners", (2003) 12 Southern California Interdisciplinary Law Journal 279, 283.

[44] Ibid. Some even consider the medium a borderless, self policing domain where traditional laws do not and should not apply.

[45]Neil McMahon, Nation of Unrepentant Costs $900m (2011) The Sydney Morning Herald, < http://www.smh.com.au/technology/technology-news/nation-of-unrepentant-pirates-costs-900m-20110305-1bix5.html>, at August 2011.

[46] David Choi and Arturo Perez, ‘Online Piracy, Innovation and Legitimate Business Models; (2007) 27(4) Technovation, 168, 170.

[47]Bem Kuchera, Sony Granted Temporary Restraining Order Against PS3 Hacker (2011) Ars Technica, <http://arstechnica.com/gaming/news/2011/01/sony-granted-temporary-restraining-order-against-ps3-hacker-george-hotz.ars>, at August 2011.

[48]Dan Goodin, Sony Buries Hatchet with GeoHot in PS3 Modding Case: Jailbreaker Promises No More Console Hacks (2011), The Register <http://www.theregister.co.uk/2011/04/11/sony_geohot_settle_playstation_suit>, at August 2011. The critics argued they should be free to modify hardware they legally purchased without running afoul of the DMCA, which carries stiff criminal and civil penalties for violations. Indeed, the US Copyright Office has exempted the jailbreaking of iPhones from the statute, but that move had no bearing at all on the unlocking of game consoles.

[49]GeoHot is Asking for your Donation! (2011), PS3Cruch <http://www.ps3crunch.net/geohot-donation.html>, at August 2011.

[50]See Matt Hickey, Sony and GeoHot Settle PS3 Jailbreaking Case (2011), CNET News, <http://news.cnet.com/8301-17938_105-20052883-1.html>, at August 2011. The settlement proceeded on the condition that GeoHot to not engage in any unauthorised access to any Sony product.

[51] Corinne Miller, ‘The Video Game Industry and Video Game Culture Dichotomy: Reconciling Gaming Culture Norms With the Anti-Circumvention Measures of the DMCA, (2008) 16(1) Texas Intellectual Property Law Journal 453, 468.

[52] Martina Guller and Gavin Sutter, "DRMs and Anti-Circumvention: Tipping the Scales of the Copyright Bargain?" (2006) 20(3) International Review of Law, Computers and Technology 287, 295.

[53] Stefan Bechtold, "Digital Rights Management in the United States and Europe" (2004) 52(2) The American Journal of Comparative Law 328, 363.

[54] Deidre K. Mulligan, "Digital Rights Management and Fair Use by Design" (2003) 46(4) Communications of the ACM, 31, 32.

[55]See Ashes Moses, Music Piracy War: Are the Big Labels Wasting their Team? (2011) The Age, <http://www.theage.com.au/technology/technology-news/music-piracy-war-are-the-big-labels-wasting-their-time-20110328-1ccrl.html>, at August 2011.

[56]Choi et al above n 46,178.

[57]Kieron Gillen, The Horse's Mouth: Mount& Blade Interview (2011) Rock Paper Shotgun, <http://www.rockpapershotgun.com/2008/10/01/the-horses-mouth-mount-blade-interview/>, at August 2011. The developers praise the community for developing " arguably some of the best mods developed for a computer game."

[58]Is Piracy Stealing? (2011), The Sydney Morning Herald, <http://digihub.smh.com.au/node/2022>, at August 2011.

[59] Robert Fahey, The Forbidden Kingdom (2009) Eurogamer, < http://www.eurogamer.net/articles/the-forbidden-kingdom-article>, at July 2009. http://www.hexus.net/content/item.php?item=26546

[60]Mike Bowden, Piracy Will Never Be Fixed, Says SI Games Boss (2011) VG247, <http://www.vg247.com/2009/01/20/piracy-will-never-be-fixed-says-si-games-boss/>, at August 2011.

[61]Tim Edwards, Notch on Piracy: "If A Pirated Game is a Lost Sale, Should Bad Reviews be Illegal?" (2011) PCGAMER, <http://www.pcgamer.com/2011/03/02/notch-on-piracy-if-a-pirated-game-is-a-lost-sale-should-bad-reviews-be-illegal/>, at August 2011.

[62]Nathan Grayson, Good Old Games: DRM's Effectiveness "Close-to-None", Often Causes Piracy (2011) VG247, <http://www.vg247.com/2011/04/13/good-old-games-drms-effectiveness-close-to-none-often-causes-piracy/>, at August 2011.

[63] Tom R. Tyler, "Compliance with Intellectual Property Law: A Psychological Perspective" (1996) 29 New York University Journal of International Law 219, 226.

[64] Jennifer Kim Vitale, ‘Video Game Piracy in the Philippines: A Narrowly Tailored Analysis of the Video Game Industry and Subculture’ (2010) 22 Pace International Law Review 297, 328.

[65]See Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58, paras [215] and [224]. Such fundamental rights include: the proper protection of fair dealing in works or other subject matters entitled to protection against infringement of copyright; proper protection of the rights of owners of chattels in the use and reasonable enjoyment of such chattels; the preservation of fair copying by purchasers for personal purposes; and the need to protect and uphold technological innovation which an over rigid definition of TPMs might discourage.

[66]Ibid, para [169].

[67]Tyler above n 63, 226.

[68]April Mara Major, "Norm Origins and Development in Cyberspace: Models of Cybernorm Evolution" (2000) 78(59) Washington University Law Quarterly 110.

[69]Herald Sun Business above n 16, 1.

Published on 6 October 2011.