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PS3 mod chip lawsuit first of many, says lawyer

  • By Renai LeMay, GameSpot AU
  • Posted Sep 1, 2010 10:44 pm PT

Legal council representing defendants against Nintendo suggest the battle against pirates has only just begun.

Sony’s PlayStation 3 mod chip lawsuit could be just the first of many gaming-giant-initiated cases in Australia, according to a lawyer who defended a client against Nintendo in a similar case earlier this year.

Sony's attack on the mod chip industry has been met with plenty of objections.

Sony's attack on the mod chip industry has been met with plenty of objections.

Late last week, Australia's federal court slapped a temporary ban--which expires tomorrow--on a handful of local retailers selling or importing hardware, commonly known as mod chips, that allows unauthorised software to run on the PlayStation 3. The court also ordered the chips to be handed over to Sony while the case was running.

The situation echoed a similar case from earlier in the year, when Nintendo was attempting to stop a local distributor from selling the R4 cartridge, which allows unauthorised applications and games to run on the DS.

The Nintendo case ended in a settlement to the game publisher in the tune of $620,000 without the judge coming to a finding. And, according to Berrigan Doube director John Cheng, whose firm defended the R4 distributor, similar cases may go down the same route.

"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," he said in an e-mailed statement this afternoon.

In the Sony case, the defendants have vowed to fight the Japanese company no matter the cost.

"This is not OzModChips versus Sony," wrote retailer OzModChips on its site after Sony won the injunction. "This is not OzModChips, Quantronics, Modsupplier versus Sony. We would go as far as saying that it is not even everyone in Australia versus Sony.

"This will affect everyone that plans to buy such a device worldwide. It already sets a dangerous precedent. Everyone that was using OtherOS, everyone that has had a faulty PS3 laser … and those interested in PS3 custom firmware and homebrew applications. We cannot do it alone; we need the support of everyone in the homebrew community, the media, engineers that understand the inner workings and anyone else that can provide support."

Piracy is big business and could end up costing Sony dearly if it's not stamped out.

Piracy is big business and could end up costing Sony dearly if it's not stamped out.

Cheng said the defendants would need to have unusually strong backing to take on a company like Sony.

"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," he said.

When the Sony case arose yesterday, online commentators immediately raised the spectre of a similar case back in 2005, Stevens v. Kabushiki Kaisha Sony Computer Entertainment.

That case saw Sony allege that Mr. Stevens had breached a number of laws by selling mod chips and unauthorised games for its PlayStation consoles. However, the high court found that Sony's hardware did not constitute what is called a "technological protection measure," meaning it wasn't illegal to break through it.

The case was hailed as a victory for freedom of consumer expression, but Cheng today said the Australian legal situation had been confused since the judgment.

Should the current Sony matter proceed to final judgment, these legal proceedings will offer the Australian community clarification with respect to the uncertainties in Australian copyright law.

Cheng said he believed Sony was likely to argue in court--as it did in the prior Stevens case, and as Nintendo did this year in its own case--that the PS Jailbreak device infringed the copyright and trademark of the technology embedded in Sony's PlayStation console and possibly that the PS Jailbreak unlawfully circumvents the system's protections.

The defending retailers, the lawyer said, would likely argue that not only was the PS Jailbreak software (which is applied through a USB stick) not a circumvention device, but that it was actually designed and used to increase the functionality of the PlayStation 3, and accordingly, Sony's technology should not be protected.

"In addition," said Cheng, "the respondents may also argue that the PS Jailbreak does not contain Sony’s copyright material.

"If it is established that the PS Jailbreak does contain copyright material belonging to Sony, the respondents may argue that the PS Jailbreak is a legitimate device, which enables time-shifting broadcasts and format-shifting copyright material and rely upon the exemption to infringement of copyright, being the region coding exemption."

Cheng finally noted that the defendants may also have to argue that the PS Jailbreak did not infringe upon Sony's trademarks.

If the defendants do attempt to fight Sony on the matter, they will likely be in for a tough road. But, according to Cheng, until someone does fight one of the big gaming giants, the issue may never be resolved in a legal sense.

"Until a decision is received from the court on the subject matters raised in the Nintendo case and now, the Sony case, we are likely to see more cases being brought in the future by gaming console giants against individuals and companies that import and sell mod chips in Australia," he said.

139 Comments

  • ADAM_PALO

    Posted Sep 12, 2010 11:45 pm GMT

    @ Promised_Trini

    LOL, Nah not at all.... its not Sony's fault for removing the OS... LOL, its the hackers, when i turned on my PS3 the JAILBREAK team told me "Hey M'F***** if you dont update your PS3, you Cant play Bad Company 2 Online" Sony Removed the OS Then i got hacked another way. soon sony is gonna knock on my door and say we have to remove the USB Slots from My Ps3. think before you talk

  • Jebril

    Posted Sep 11, 2010 9:18 pm GMT

    Developers get tons of recognition regardless. Software should be free it used to be before sheep like yourself allowed corporations to rape us for it and put it in our mindset that programming isn't enjoyable or a hobby like it really is. I know this cuz I'm probably a better programmer than all the people on this comment box, and I would do the job for free, to help people and for people to enjoy it. Someone like Mark Shuttleworth releases open source software for free hell they even ship CDs to your house of their software for FREE. He has recognition he doesn't care for money he does it because he's not a greedy **** like you these corporate slaves. Have fun banning this comment Gamespot the truth is hard to realize. But don't worry I'm probably just some lonely basement dweller who has no idea what he's talking about RIGHT? There is no way I could actually be right on what I'm saying, man that just couldn't be the world is a messed up place? WHAT!?

  • cometflash

    Posted Sep 9, 2010 4:33 pm GMT

    I'm using my ps3 so I cant edit my message, I need to edit the last sentence so he is my edit: "... the console is yours, the additional software is not if you decide to sell is not longer yours, if you take it or buy from the one who toke is just wrong."

  • cometflash

    Posted Sep 9, 2010 11:21 am GMT

    People here seems to be focus on the console hack, saying would be good as it will bring in more sales, and you are right at that point. However from what I read from this hack, its all about one thing it can do which is copy games.

    Here you are outside of the console debate, as it damages the people who develop your beloved games.

    If the mod only modify the console, and only the console had the effect brought to it, then I would be right there with you, but in this case is made to hurt someone outside. Sure you pay for your console, and you should be able to do whatever with it, as long as whatever you are doing does not effect someone else.

    You pay for the console knowing that you need to pay more for additional software to play on, the console is yours, the additional software is not if you decide to sell it or take it, and buying from the one who toke is also wrong.

  • gordos24

    Posted Sep 9, 2010 2:20 am GMT

    Whats all the fuzz all about. This will boost the sales of their console. Look at the 360 and wii
    if you cant mod their console. Many people wouldnt buy it. There are always are people willing to buy orginal games like me. Look at he ps2 they sold 180 million do think all of these consoles are orginal. So piracy is a good thing. There is one thing i hope and thats is that everyone with pirated games will get banned!!!

  • supernaught360

    Posted Sep 8, 2010 9:10 pm GMT

    Anything else can be modified (cars, computers, cell phones, etc) without legal ramifications, why not a game console?? Look: back when Sony (illegally) monopolized the HD DVD market with their Blu-ray disc (buy buying out competing companies, and costing HD-DVD marketshare) they P-R-O-M-I-S-E-D all their hollywood (Warner, Disney, Universal, etc) cronies that Blu-Ray discs were U-N-T-R-A-N-S-F-E-R-A-B-L-E and S-E-C-U-R-E because of the large file size, net-capable players updatable with the latest anti-piracy software, etc...

    And now look: Blu-ray discs everywhere on The Pirate Bay.

    Sony (Like Macintosh) is a super paranoid, closed-software minded company that is frightened by net neutrality to the point that they use a proprietary codec that took developers the last 3 years to figure out just to get quality games. Their 15 year old controller sucks, their online functionality sucks, and blu ray format is going nowhere (in favor of downloadable HD media).

    What comes 'round, GOES 'round, Sony. Choke on it.

  • xxgunslingerxx

    Posted Sep 8, 2010 5:59 pm GMT

    People should have the right to mod their ps3s if they want too its just they do not have the right to pirate games but moding and pirating go hand in hand... so there is the problem we need to somehow fix

  • LitterBoxHero

    Posted Sep 7, 2010 8:13 am GMT

    Ironic how Sony wants the PS3 to be looked at as a computer but when you try to give it the versatility and freedom to let you do whatever you want like a computer they throw a fit.

  • wyan_

    Posted Sep 6, 2010 2:04 pm GMT

    @ eriktkire I agree. These people are not freedom fighters. They are dishonest losers trying to get away with crimes that cost the rest of us. It's no different than criminals who don't want to go to jail.

  • HappyBB

    Posted Sep 5, 2010 9:54 pm GMT

    I hope the mod chips/PSJailbreak community win the case!!

  • zaiwen

    Posted Sep 5, 2010 8:22 pm GMT

    just face it, they may have won the battle, but they have not won the war... piracy is everywhere.. you may win a few thousand court cases, yet there are millions out there in the real world who still use pirated software

  • steven141

    Posted Sep 4, 2010 2:43 pm GMT

    A lot of people are saying that they can do whatever they want to do with their PS3 after buying it. This is stupid, just making it clear. Meddling with it, in order to pirate games harms sony because for every game sold, a fee is paid by the publisher to sony also, and so it harms them, its how they make all their money with consoles since they sell each console at a loss. It would be different if it wasnt used to steal, but it is and so it should be banned.

  • KoreanSchoolKid

    Posted Sep 4, 2010 10:06 am GMT

    as a person who really hates buying stuff with my own money...
    yea sony should get this stuff B&
    xbox has been hacked for awhile now though folks. not only can it play nearly any xbox game written on a DVD-DL but it also can have nearly any DLC ever released. maybe this wont hurt sony as much as people say

  • jbookie

    Posted Sep 4, 2010 8:47 am GMT

    if games wernt so expensive less people would pirate them

  • Narroo

    Posted Sep 4, 2010 6:43 am GMT

    eehhhh...
    Well, I've been checking up on ps3-hacks.com for awhile, and it does seem that most people wanted it hacked to pirate games. The main point of the original mod-dongle seemed to be pirating, thus Sony is justified in stopping the sales.
    Though, a clone has been made purposely without the pirating capabilities...an app as already been made to re-enable it, but if those homebrewers can curb PS3 piracy while keeping it hacked-FUN!

  • kindredmachine

    Posted Sep 4, 2010 2:18 am GMT

    The issue is not people having the right to do what they want with their PS3 (as many people are stating) it has to do with the deliberate sale of MOD CHIPS which are used for playing pirated software. Mod chips should be illegal, period.

  • weejah2

    Posted Sep 4, 2010 2:04 am GMT

    @slavik700 you are missing the point. if its cheaper even more people will buy and they will still make enough money to afford the budget

  • Flint247

    Posted Sep 3, 2010 6:25 pm GMT

    Stupid Piracy. If you can't afford the game, don't get it at all.

  • Phazevariance

    Posted Sep 3, 2010 5:47 pm GMT

    The gaming industry has become increasingly arrogant and greedy over the last few years, specifically Sony. First they are upset about used game sales, claiming they get screwed on payment, yet they got money for the game. Now its about modifications to their console. As posted by GOR_TAK below, the auto industry allows both used car sales AND aftermarket modifications to property owned by an individual. This is no different.

  • eriktkire

    Posted Sep 3, 2010 4:51 pm GMT

    This is so sad. Ever since mod chipping started with the PS1, everyone knows 90% of mod chippers are using it to pirate games... and these sellers are pretending they're freedom fighters... in a sense.

    It's always been this way with consoles... don't like being denied access to a foreign-only released game that aren't region compatible? Can't wait for the later-than-the-rest-of-the-world release dates? Want the ability to run your own software your way?

    The solution has always been easy... buy a PC, learn how to use it, shut up. If you're going to be a console fanboy, deal with the limitations Sony and Microsoft put on your hardware. Don't like it, vote with yote $$$ elsewhere. If you're too cheap to buy your games on any platform... go steal a football from some children playing in the park and figure out how to play games in the real world with your friends.. if you have any. And keep an eye out for some angry parents looking to beat the crap out of you. You might actually get a valuable life lesson out of that experience!!!

  • evilmaster2424 posted Sep 3, 2010 4:27 pm GMT (does not meet display criteria. sign in to show)

    evilmaster2424

    Posted Sep 3, 2010 4:27 pm GMT (hide)

    wth sony. im ussaly with sony on certtain things. but i mean come on i bought the ps3 from you nows its minei can do whatever i want with it. they already got my money so i would think it would make sense that they would careless about this kind of stuff. cause people will try and put cfw on the ps3 and mess it up and then sony will get more money cause the poeple either have to get it reapired or buy a new one. and eitherway sony would be makeing more mone.y by complainging about it all there doing is losing money. sony your retarded sometimes

  • GOR_TAK

    Posted Sep 3, 2010 2:19 pm GMT

    What's next car manufacturers suing car owners over what kind of aftermarket car modifications they perform?

    Ridiculous. I hope Sony loses big and the courts send a message loud and clear to console makers. Once a consumer buys your product they are free to do with it whatever the hell they want to.

  • TerrorRizzing

    Posted Sep 3, 2010 12:50 pm GMT

    @ DeMoN_SouL_666

    people have the right to do whatever they want with their ps3s.

  • DeMoN_SouL_666

    Posted Sep 3, 2010 11:44 am GMT

    I hope Sony wins this one, and for anyone not happy with what they did removing the BC and OtherOS, it's completely justified, the PS2 is still selling, we'll all see BC back again when the PS2 finally dies completely. and someone tried to hack the PS3 through Linux, that's why they removed it. if people didn't mess around with things they don't have the right to mess with, non of this would've happened. and it's Sony's right to defend their console. plus, we all know where using the ModChip will lead to.. HACKED GAMES! and anyone denying that is just another cheap guy who doesn't respect gaming and the effort they put into games. yes, the games are overpriced, but that doesn't justify hacking the system.

  • nonfanboygamer1

    Posted Sep 3, 2010 10:18 am GMT

    I just wanna play ps2 games on the ps3. Why sony, why?

  • slavik700

    Posted Sep 3, 2010 5:55 am GMT

    weejah2, you can get downloadable games from the PSN story for less than ÂŁ40 -Ă‚ÂŁ50. They won't be of the same quality as the ÂŁ40 -Ă‚ÂŁ50 games, but that's just how it works. You want to pay less? They'll spend less on making a game.

  • Promised_Trini

    Posted Sep 3, 2010 4:41 am GMT

    @ADAM_PALO
    Oh yeah here we go another person who thinks it was Sony's fault for removing the other OS.

  • weejah2

    Posted Sep 3, 2010 3:08 am GMT

    even if sony wins it won't stop it. the code for this thing has been released and people are now able to reproduce this with a usb device that costs ÂŁ20. people are exploring ways to do this with a psp (oh the irony). piracy is a bad thing no doubt but these companies seem to think that because of it hey can cahrge ÂŁ40 -ÂŁ50 for a game. if the reduced the price a fair number of people purchasing or downloading pirate games would stop. it wouldn't completely cure it but would help alot and they would still make their money. plus with unreliable technology these consoles seem to use is it any wonder people are exploring more reliable means of playing their games. some ps3's have known laser problems the xbox kills discs if its moved. the gaming industry is slowly losing its way. the first console to allow homebrew legally will make a killing FACT!!

  • mosamania

    Posted Sep 2, 2010 11:38 pm GMT

    actually this law suit is petty much.... sony and every other gaming company versus pirates..... people work very hard on these games..... and the industry isnt in its best right now with poeple who make games keep getting fied.

    Pirates will mean retardation of games cuz to make AAA games takes cash and when you dnt have cash games will just suck.

  • earlmccormick88

    Posted Sep 2, 2010 10:41 pm GMT

    @godreborn
    That is the best comment I've read. People who buy and people who mod are two totally different types of people. Look at Red Dead, GTA4, Madden sales. Locking a system won't force people to buy the game. Trust me. I would know.

  • earlmccormick88

    Posted Sep 2, 2010 10:34 pm GMT

    They removed the OS feature many people used but they don't want their systems modded. The PS3 isn't even PS2 compatible.

  • ADAM_PALO

    Posted Sep 2, 2010 9:47 pm GMT

    LOL the PS3 is finally hacked, first of all i would like to thank Gamespot.com.au for giving me the low down.
    2nd) Sony can eat a Big D*** for one removing ps2 backwards compatibility and for removing the OS-Linux support, serves them right.
    3rd) Now PS3 just needs some decent B grade titles lol. cant wait to install HAZE on ps3

  • RaiKageRyu

    Posted Sep 2, 2010 8:54 pm GMT

    I concur with what the man said in the article, it takes one extraordinary sleaz... I mean person to make stealing like it's a goo... whoops I mean fight for gamer's freedom.

  • cyanidebakesale

    Posted Sep 2, 2010 7:45 pm GMT

    It's hard for me to feel sorry for sony when they region lock japan only exclusives

  • Giga1

    Posted Sep 2, 2010 6:51 pm GMT

    Reiken37 I do like the fact your an idiot. It really must give you so much pride to troll on boards on your quest to make the 360 the best system ever.

  • Reiken37 posted Sep 2, 2010 5:44 pm GMT (does not meet display criteria. sign in to show)

    Reiken37

    Posted Sep 2, 2010 5:44 pm GMT (hide)

    By the way, why is anyone modding Sony's consoles, I thought that PS3hasnogaems.
    Whatever, guess that hackers gotta hack

  • Reiken37 posted Sep 2, 2010 5:34 pm GMT (does not meet display criteria. sign in to show)

    Reiken37

    Posted Sep 2, 2010 5:34 pm GMT (hide)

    This isnt australia verus Sony, this is a couple of hackers who run a small shop and want to go to court to make it legal to hack Sony's games verus Sony. I hate Sony's 3D tvs, I hate the PSP, I hate the fact that the PS3 has 2 games, maybe 3. But, just like with the Nintendo case, I'm gonna have to say that it should be illegal to alter software from a company in such a way that you steal product from them that they are currently selling on the market. Its just as illegal as say, stealing music off the internet. Thats very similar, except that in this case the accused are stealing much more money... much more.

  • FoTwinny

    Posted Sep 2, 2010 5:29 pm GMT

    What is Sony suing these people for? Let them sell their modchip, so after it's installed, Sony can brick the PS3 and make the idiot who bought the chip NOW have to buy a new console as well! Everyone gets paid!!

  • Jikawa

    Posted Sep 2, 2010 5:22 pm GMT

    @grim76. So pay for the scratch warranty and you don't have to worry about the slight chance of purchasing a damaged disc.

  • Jack_240

    Posted Sep 2, 2010 5:08 pm GMT

    i wouldn't hack it

  • Jack_240

    Posted Sep 2, 2010 5:08 pm GMT

    the country i live in is full with piracy, it's Saudi Arabia. no one could imagine if the ps3 is officially hacked. Most of the games here are hacked except for PS3 games which i'm happy about. i don't want my ps3 to get hacked even if it were to be hacked..

  • Hydrolix

    Posted Sep 2, 2010 4:42 pm GMT

    @grim76 You are the minority. Most people cracking boxes are doing it to run pirated software.

  • grim76

    Posted Sep 2, 2010 4:30 pm GMT

    @ soulreaper4 if thats how u see all ppl who copy material u must be very closed minded i am neither lazy nor a kid and i do own many games but have paid 4 every single 1 of them. How is it that when i copy a game or bypass a security system im a pirate, a thief, am stealing intellectual property, and bypassing a licence, but when the same game disk is damaged for whatever reason i now have to go back to the game store and buy another copy of the game, and funnily enough said licence i bought with the first copy now means f#@% all to them as they r gorging from my wallet once more. If these companies are serious about pursuing this avenue of intellectual property and licences they would have to replace my damaged disc for cost price + shipping, this would leave me with no need to have to copy discs to protect my original investment of in many cases over $100. As a footnote this not only applies to the gaming industry but also to the movie and music industries who also love to see hardworking ppl paying for the same licence more than once.

  • MrUntouchable18

    Posted Sep 2, 2010 4:24 pm GMT

    Man both sides have a tough argument. 1 the PS Jailbreak will and already has lead to piracy that we know but we also know the good intentions of it meaning cool apps and home brew. But if you look at it from Sony's point of view if you had money and somebody you know attempted to let people steal it wouldn't you want to stop whatever it was. But when I think about all the news on these modchips for the PS3 there are already so many clones of the PS Jailbreak and I don't think Sony wants to fight them all. As a student game developer i wouldn't want anyone stealing what I make but does that mean I will stop them all No but stopping the source well that's a whole other story.

  • onlymetal75

    Posted Sep 2, 2010 4:09 pm GMT

    Are we all gamers or lawyers?? You guys must have got straight A's in english.... Its like grammer Police up in here, Mod cops or something.

  • HollowNinja

    Posted Sep 2, 2010 3:37 pm GMT

    Considering what courts have done in the past, Sony will probably lose this one. That's a good thing. I hate piracy as much as any gamer, however, I find that modchips are excellent ways to play fan-translated games. For the sake of fan translations, I want Sony to lose. At least Sony did the right thing by making their console region-free.

  • thrasher510

    Posted Sep 2, 2010 3:34 pm GMT

    Time take off me eye patch! ARRRGGHHH! lol jk i don't pirate my games, i'm a good little boy.

  • slavik700

    Posted Sep 2, 2010 2:51 pm GMT

    user_93475765, perhaps when you grow up you'll be able to articulate a response to the substance of my post. Again, if you don't like the product - don't buy it. If you don't like a corporation - don't invest in it. Simple as that.

  • godreborn

    Posted Sep 2, 2010 2:49 pm GMT

    put in jail? lol! did u read about the people who pirated the hurt locker? the production company tried to sue over 5000 people and all but one of the cases were thrown out. the reason: the courts are already backed up as it is without having to listen to x number of cases over this nonsense. let's put the murder trials on hold to hear another piracy case. besides, sony, nintendo, microsoft, etc are worth what? billions of dollars. and, the ceos' make tens of millions a year. I mean...how do they eat???

  • strayfies

    Posted Sep 2, 2010 2:44 pm GMT

    Why can't anyone here just respect someone else's opinion? It's like you've got to get into little slapfights every time someone doesn't think the same way you do. It's weird, no one here is involved with the lawsuits anyway.

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