Can you Jailbreak Your Playstation?
In an order passed earlier this year, the Delhi High Court restrained certain businesses from circumventing Technology Protection Measures (TPM’s) in the Sony Playstation 3 and other video game consoles. TPM’s or DRM (Digital Rights Management) allow manufacturers, like Sony, to control how their products are accessed and copied by their customers.
The order was passed after the Copyright (Amendment) Act, 2012 was passed (although prior to its notification), so it is the first case to recognise the introduction of digital locks in hardware or software under Indian copyright law. Significantly, the defendants are restrained from engaging in associated acts including “offering for sale” and “distributing modified game consoles”. This case could test the ‘fair balance’ sought to be achieved with the importation of the DMCA-styled Section 65-A of the Indian Copyright Act, which introduced anti-circumvention restrictions into Indian copyright law.
Section 65A and anti-circumvention laws
The insertion of anti-circumvention provisions in Indian law has recently been the subject of great debate. The first issue is whether it was even necessary, since India is not a signatory to the WPPT and WCT (Internet Treaties) which mandate DRM measures. Secondly, even if it was required, whether the current provision strikes the right balance between copyright protection and the rights of non-infringers.
Swaraj Barooah has written a paper in the NUJS Law Review where he argues that that since TPM and anti-circumvention laws are not the most efficient method of protecting copyright, especially when there are better alternatives available. Further, they appear to restrict user rights by increasing transaction costs, raising privacy concerns and security issues. Having read a draft of his paper, I tend to agree that the amended provision will likely do more harm than good.
Legality of Jailbreaking
The court explicitly makes reference to anti-circumvention laws in the Copyright Amendment Bill and authorises a Local Commissioner to seize the consoles and determine if they are counterfeit. The lawyers for Sony argued that they were making ‘modifications and uploading pirated software in the form of games’. What constitutes a ‘modification’ has not been made clear in the order and neither was there any discussion on the fundamental issue of whether a user should be allowed to modify software on a device that he or she legally owns.
From a legal perspective, it is useful to study the act of ‘jailbreaking’ in light of the language in Section 65A of the Act, and whether it constitutes copyright infringement. The order identifies two illegal acts – certain ‘modifications without [Sony’s] consent’ and secondly, the introduction of pirated copies of games into the gaming consoles without a license from Sony. It is understandable why the creation and distribution of pirated copies may be a violation of Sony’s right to ‘reproduce’ its own games. But other than that, there does not appear to be any legal obstacle to changing the underlying software, including the operating system.
Section 65A is careful to restrict its scope only for the purpose of protecting the rights conferred to a copyright owner under the Act. This was an issue raised by Pranesh Prakash of the Centre for Internet and Society in an open discussion with Mr. Pravin Anand (of Anand & Anand, representing Sony in this case) at a recent copyright law conference. When pressed to answer which right of the plaintiff’s (that is Sony) was being violated when a user ‘modifies’ his or her PlayStation, it was not made obviously clear which exclusive right was being violated. Incidentally, all presentations at the NUJS-CUSAT conference are available on YouTube here.
Role of the Copyright Office
The biggest concern with DRM, even if it allows for ‘fair use’ exceptions, is the issue of determining fair use itself. It is common knowledge that courts in India have been slow to react to technological developments (and how to reconcile it with current laws). With that in mind, it may be a good idea to invest the Indian Copyright Office with the power to review the limitation of anti-circumvention laws on a periodic basis. This would be similar to the current practice followed in the US where the Librarian of Congress, every 3 years, announces the exceptions to the DMCA. (See the ‘Rules for Exemptions Regarding Circumvention of Access-Control Technologies’).
Lastly, the order can also be criticised for restricting the sale of modified consoles before a discussion on whether it constitutes copyright infringement under the Copyright Act. Perhaps an order restricting the making and distribution of pirated games may have been sufficient in this case. Unfortunately, the court appears to rely too much on the ‘consent’ of Sony and too little on what exclusive rights are granted to Sony under the Indian Copyright Act.
Imagine if I had a Windows computer on which I was prevented from installing the Linux operating system or was forced to use Internet Explorer for the rest of eternity. This is very much like that.
This post was originally published on SpicyIP
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