In an order passed earlier this year, the Delhi High Court passed an ex-parte injunction against the defendants for circumventing Technology Protection Measures (TPM’s) in the Sony Playstation 3 and other Sony game consoles.
Given that the order was granted after the Copyright (Amendment) Act, 2012 was passed (although prior to notification), this is the first case to legally recognise the introduction of digital locks in hardware or software to protect copyright in India.
Importantly, the defendants are restrained from engaging in associated acts including “offering for sale” and “distributing modified game consoles”. This case, if the order is appealed, will test the ‘fair balance’ that was sought to be achieved with the importation of the DMCA-styled Section 65-A, which introducedanti-circumvention provisions, into Indian copyright law.
Section 65A and anti-circumvention laws in India
The insertion of anti-circumvention laws has been the subject of great debate since its addition to the Indian Copyright Act. The first question – was it necessary despite India not being a signatory to the WPPT and WCT (Internet Treaties) that mandate such measures? And if necessary, is the provision in its present form adept at striking the balance between copyright protection and the rights of non-infringers?
Swaraj Barooah has written a paper due for publication in the next issue of the NUJS Law Review where he argues that that since it is not the most efficient method of protecting copyright, especially when there are other alternatives available. Further, it appears to affect user rights by increasing transaction costs, affecting privacy and also raising security concerns. Having read a draft of his paper I would agree that perhaps this provision will do more harm than good.
Legality of Jailbreaking Playstations
The court expressly references the anti-circumvention laws in the Copyright Amendment Bill and authorises a Local Commissioner to seize necessary equipment and determine if they are counterfeit.
The lawyers for Sony essentially argued that the defendants were making ‘modifications and uploading pirated software in the form of games’. This raises the obvious concern about the scope of the term ‘modification’ and more fundamentally the question of whether a user should be allowed to change software on a device he or she legally owns.
Legally speaking, it is useful to study this act of jailbreaking in light of the newly inserted S.65A and whether this amounts to copyright infringement.
The order itself finds two ‘illegal acts’ – firstly, ‘modification without [Sony’s] consent’ and second, the introduction of pirated copies of games into these machines without license from Sony. I understand how the making of pirated copies could be a violation of Sony’s right to ‘reproduction’ of its games. But keeping that aside, I would argue that there does not appear to be (and should not be) any legal impediment to my right to change the underlying operating system, for example.
One finds that the clause in the Act itself is careful to only allow the law to operate if it ‘for the purpose of protecting any of the rights conferred by the Act’. This was also an issue raised by Pranesh Prakash of the CIS in an open discussion with Mr. Pravin Anand (Anand & Anand was the law firm representing Sony) at a recent copyrightlaw conference as it is unclear what right is being violated when a user ‘modifies’ his or her PlayStation. Incidentally, all the videos from the NUJS-CUSAT conference are available on YouTube here.
Non-infringing Circumventions and Copyright Office’s Role
My concern with the TPM provision, even if it allows for ‘fair use’ exceptions to override the clause like S.65A does, is the problem of deciding what constitutes fair use itself. Since courts in India are slow to react to technological challenges (and the more universal problem of law always playing catch-up to technology) it may be a good idea to invest the Indian Copyright Office with the task of reviewing exceptions to such anti-circumvention laws on a periodic basis. This would be identical to the current practice followed in the United States where the Librarian of Congress, every 3 years, announces the exceptions to the DMCA by establishing the ‘Rules for Exemptions Regarding Circumvention of Access-Control Technologies’.
Lastly, I would also argue that the order goes far beyond what was required since it restricts sale of modified consoles itself, despite there being no apparent copyright infringement in doing so. A mere order restricting the making and distribution of pirated games should have been sufficient in this case.
The court, in my opinion, appears to rely on the ‘consent’ of Sony and what it considers to be legal or not and not what the Act itself protects. Imagine if I had a Windows computer on which I could only install Microsoft programs. Or prevented from installing the Linux operating system on it and was forced to use Internet Explorer for the rest of eternity. This is very much like that.
(Note: A copy of the order is available here)