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  • News - Written by on Monday, September 6, 2010 12:15 - 6 Comments

    Court extends ban on PS3 modchip sales

    Australia’s Federal Court has extended a ban on a handful of local retailers selling or importing hardware — commonly known as ‘mod chips’ — that allows unauthorised software to run on Sony’s PlayStation 3.

    The court in late August had initiated the ban — with a temporary cessation date of 31 August — while court action initiated by Sony Computer Entertainment’s Australian and European arms against three local retailers goes ahead. The action stemmed from the retailers’ importation and advertisement for sale of the PS Jailbreak device — a USB key which defeats Sony’s protection on the PlayStation 3.

    According to court documents filed late last week, the Australian retailers banned from selling the device are OzModChips and an individual who appears to be involved with the business — Ryan Caruana, Global Solutions International (trading as Quantronics) and Ken Tolcher (trading as Mod Supplier).

    However, after further court action last week, Justice Dodds-Streeton, according to court documents posted online, extended the ban indefinitely. It is believed the ban may apply to other retailers not named in the suit — due to the use of the ‘Jane Doe’ and ‘John Doe’ terminology — may also be prohibited from selling the mod chip until the case is resolved.

    The retailers are prohibited from importing the PS Jailbreak device, according to Dodds-Streeton’s order, distributing it, offering it to the public, providing it to another person, or otherwise dealing in the device.

    Furthermore, the retailers have been ordered to give what stock they have of the modchip — or what stock may arrive as a result of prior orders — to Sony, who will hold the devices until further court order.

    As of today, OzModChips.com is still advertising the product (although the site has a “sold out” logo on it. But it does not appear that the other two retailers have the device listed any more. Delimiter has been unable to contact any of the retailers for further information on the matter.

    According to a lawyer who defended a client against Nintendo in a similar case earlier this year, the Sony case could be just the first of many gaming giant-initiated cases in Australia on the issue of mod chips.

    “If history is anything to go by, I envisage many more cases to be settled in favour of the gaming giants before a court is given a proper chance to consider and decide on these highly contentious matters,” said Berrigan Doube director John Cheng last week. “It will take an extraordinary person to really take the fight to the gaming console companies due to the significant resources required and the personal risks attached to defending the allegations raised against them.”

    But one of the defendants, OzModChips, has vowed to fight the case, in a public statement that has since been removed from its website.

    Image credit: włodi, Creative Commons

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    1. Rob
      Posted 06/09/2010 at 12:49 pm | Permalink | Reply

      Why will it take an “extraordinary person”?

      Does our system of justice not offer everyone equality before the law? Or, is the only justice we get, that which we can afford?

      It really sucks that huge corporatiopns can steamroll the little people.

      In practical terms, where is the justice…???

      • Posted 06/09/2010 at 9:03 pm | Permalink | Reply

        It’s essentially a terrific gamble. If you throw down a wad of cash for a great law firm to represent you, you can take on Sony. Then if you win, you get all your money back and probably then some. If you lose, you don’t just pay your own legal costs, you probably pay Sony’s and then some.

        It’s like playing high stakes poker … with your mortgage ;)

    2. Tobias
      Posted 06/09/2010 at 4:57 pm | Permalink | Reply

      Will be very unfortunate if the court continues to suport Sony. Australians already pay a far higher retail price for video games than other countries such as the United States, and frequently get games up to a year late, if at all. A victory against modchips would be a huge defeat for Australians that want to retain the freedom to import games and other media.

      • Posted 06/09/2010 at 9:04 pm | Permalink | Reply

        The thing that I don’t quite understand is I thought we already had this victory in the High Court against Sony … did some politician go and make a law that made it redundant? ;)

    3. Posted 06/09/2010 at 7:53 pm | Permalink | Reply

      Sure, everyone is equal under the law, so long as you can afford the top-notch barristers to get the justice you require. Sony and Nintendo have virtually unlimited financial resources to throw at barristers and solicitors. Smaller companies cannot afford it.

      Let me give you an example from first hand experience on trying to run an intellectual property claim case. To get a single deposition, have the QC and junior Barrister find the attack vector in the copyright and contracts law and our solicitors working with them providing background, it cost over $125k for ONE MONTH and that was just to file an injunction with the Supreme Court of NSW. It never even got that far as the other side buckled when their two week defense bill hit $100k and an out of court agreement was reached. By the time contract amendments were made, that month saw both companies spend combined spend over $250k and not spend a day in court.

      We were told in that case, which was two smallish companies to prepare to spend $5m over three years if we wanted to fight it out. Not to mention, if you lose you’ll probably get touched up for costs (not all but some). So now budget for $8m because you don’t know the outcome – no matter how clear the copyright law is, the judges on the benches are predominantly old men who have no idea about technology so you can’t even begin to guess how they’ll rule. That was told to me by the best IP QC in the country.

      In a case like this, Sony or Nintendo could easily drop $10-12m over three years and not even blink – what about OzModChips? So unless some white knight barrister steps up to work the case for free as a challenge, good luck.

      Here’s a good PDF on gaming copyright: http://www.copyright.org.au/pdf/acc/infosheets_pdf/g016.pdf

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