Matt Lonsdale is a JD candidate at Dalhousie University.

There has been heated debate in Canada regarding technological protection measures (TPMs), particularly against the backdrop of the amendments to the Copyright Act proposed by Bill C-32. At issue in many of these discussions is the extent to which circumventing TPMs should be illegal; for instance, should it be illegal in all circumstances or only if the purpose of the circumvention was to further an act of copyright infringement. TPM proponents typically argue that such provisions are necessary for Canada to comply with its international treaty obligations and to support new business models in the digital age. Others have argued that these provisions unduly restrict the rights of consumers and grant too much control to copyright holders. A case in Southern California is shedding light on how this debate is playing out in the United States, where the legislation at issue is the Digital Millennium Copyright Act (DMCA).

The defendant Matthew Crippen was charged with modifying Xbox video game consoles, contrary to provisions of the DMCA which prohibit circumventing any “technological measure that effectively controls access to a work”. For a fee Mr. Crippen would modify the consoles so that it was possible to run unauthorized software on them, including pirated games and alternative operating systems.

The defendant suffered a blow early in the matter when U.S. District Court Judge Gutierrez granted the prosecution’s pre-trial motion to exclude evidence that Mr. Crippen’s actions would fall under the “fair use” exception of US copyright law. Judge Gutierrez held that fair use was only available for allegations of copyright infringement and not for the separate act of circumvention, other than a few defined exceptions such as modifying mobile phones. In addition, proof of actual copyright infringement was not required: “Moreover, although the Government will have to establish that the technological measure that Mr. Crippen allegedly circumvented was used to control access to copyrighted work, the Government need not show that the modified Xbox’s were actually used for infringing purposes”. In granting the motion Judge Gutierrez commented that the decision to exclude the fair use defence in allegations of circumvention was a deliberate choice by the drafters of the DMCA.

Developments in the matter turned more in the defendant’s favour when, shortly before the trial was set to start, Judge Gutierrez expressed his extreme displeasure with the manner in which the prosecution was conducting the case. Among the judge’s many concerns were the prosecution’s proposed jury instructions, which included an assertion that Mr. Crippen did not need to know that what he was doing was illegal in order to be convicted. “[Y]ou’re suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?” the judge said, referencing the Department of Justice’s Prosecuting Intellectual Property Crimes Manual. Following the judge's comments, the prosecution apologized to the court and considered dropping the case.

The prosecution ultimately decided to proceed. Their first witness, a private investigator who had approached Mr. Crippen posing as a customer, testified that he had witnessed Mr. Crippen insert a pirated video game into a modified console in order to ensure the modifications had been successful. While this information was helpful to the prosecution’s case, the defence had not been notified that evidence of this kind would be led. In the interests of “fairness and justice”, the prosecution withdrew the case.

While the Crippen case did not result in a decision on the merits or in a new legal precedent, the judge's pre-trial ruling did establish that in the US circumvention of digital locks is an offence in and of itself, that no proof of copyright infringement is required and that defences based on fair use arguments are not available. It is likely that we will see similar questions play out in Canada, whether under the amendments that Bill C-32 proposes to make to the Copyright Act, or even before they come into force. A recent IP Osgoode post noted that Sony has recently begun legal action directed at groups engaged in circumventing technological protection measures on Sony's Playstation 3 game console.