Higgs v R: Modchip slip-ups revealed

As reported tentatively by the IPKat last week (here), the Court of Appeal has overturned Neil 'Mr Modchip' Higgs' conviction relating to 26 offences under section 296ZB of Part VII of the CDPA 1988 (as amended numerous times). The story is, however (as the IPKat suspected, but was unable to confirm), not as straightforward as it might have appeared at first sight. Mod chips are not now legal, and Sony v Ball has not been overturned. All the details have now been revealed via the magic of BAILII.

Neil Higgs was convicted largely on the basis that, by supplying modchips (similar to the one shown above right) designed to allow a gaming console (the XBox in this case) to play copied discs, he was enabling circumvention of the effective technological protection measures (TPMs) present on the console. Consoles tend to have various means of detecting whether an inserted disc is genuine (i.e. not copied) or authorised (i.e. having the right regional code), and the modchips sold by Mr Higgs were effective in overcoming both of these checks. Mr Higgs was, the prosecution alleged, encouraging and exploiting a market for pirate games, since no one would make or sell them unless they could be played.

Unfortunately, according to their Lordships (led by Lord Justice Jacob), this was not a correct reading of the relevant statutory provisions. Merely proving that the modchips worked in practice was not enough. What was required was proof that the TPMs actually prevented copying taking place, which the prosecution did not show. A case could have been made relating to playing of pirated games on a console being an infringing act, since a transient copy would of necessity be made through this act (in line with Sony v Ball), which normally would have been prevented by the TPMs in place on the console, but the prosecution had not thought to put forward any evidence relating to this. The case that they did put forward did not fit within the provisions of the Act, and the conviction was therefore wrong. Jacob LJ summed up this particular fine mess in the following way:

"Mr Higgs is a fortunate man in that it may well be that if the legislation had been less complex and/or the Crown had had greater opportunity to consider the details of copyright law the case would have been proved on the basis that merely playing a pirated game involves making a copy in the console and thus involves infringement. He may also be fortunate that, at least this far, he has not been sued in the civil courts. There the procedure is apt to be much faster, technical slip-ups in evidence can generally be readily cured before final judgment and the remedies of damages, an account of profits, injunction and legal costs are readily obtainable. Breach of an injunction, if serious, can of course itself lead to imprisonment" (paragraph 36).

The IPKat thinks that this is fair enough, and agrees both that Mr Higgs should have been set free and that he is very lucky, but also thinks that the prosecution should really have done their job properly if they wanted a safe conviction. They clearly did not. There appears to be no doubt that Mr Higgs would not have had his conviction overturned if evidence of transient copying had been put forward in the first place. It is not really any sort of excuse to say that the provisions are too complex, particularly since Laddie J did such a fine job of what was required in Sony v Ball on almost identical facts. Presumably the prosecution didn't bother to read this, and instead relied on knowing that modchips were in some way 'wrong', which is just not good enough. The IPKat wonders if they will learn their lesson, and get Mr Modchip properly next time. In the meantime, will Mr Modchip be back in business in 36 days (see here)? The IPKat thinks that he would be very foolish if he has any serious plans to start again.