My last post discussed the vagueness-precision dichotomy in light of Canadian copyright reform. Ironically, the matter resurfaces today, now in the
IPKat brings news on the Higgs case, in which Neil Higgs, also known as “MrModchips“, escaped conviction arguably because of the complexities of English copyright law.
On the one hand, the prosecution did not prove the effectiveness of the video-games’ copy control mechanisms that were said to have been circumvented with the modchips supplied by Mr Higgs.
On the other hand, the prosecution did not claim that the modchips contributed for the infringement resulting from merely playing pirated games — which necessarily presupposes the transient reproduction of the games.
This led the Court of Appeals to overrule Mr Higgs’s earlier conviction. As Jacob LJ noted, for the Court,
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.
IPKat observes, though, that this is not such a complex matter, with which I agree. But it is nonetheless interesting to learn the perception of the Court of Appeals as to what constitutes a complex matter.
At times it seems that information technologies are part of the outer space; not of the very fabric of a society that has experienced a paradigmatic shift.
3 Responses to “MrModchips and the Maze”
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Marcelo Thompson is a Research / Assistant Professor and Deputy Director of the Master of Laws in IT & IP Law at The University of Hong Kong, Faculty of Law. He is currently wrapping up his Doctorate of Philosophy at the OII.
Sometimes it is so hopelessly frustrating to watch as judges and lawmakers struggle to make rulings on or legislate things they don’t understand. There’s a great deal of need for people who are better informed about this “fabric of a society,” as you put it.
Unfortunately, there doesn’t seem to be a clear way for concerned citizens with such technical qualifications to get to where they can inform such exercises of law and lawmaking.
The Copyright Directive provisions on whether copy protection mechanisms are “effective” are deliberately vague. The UK transposition of the Directive adds little clarity. Therefore it is not surprising that the Court, like most legal observers, is confused on this matter.
Thanks, Ian. I agree with you that the term effective is indeed extremely problematic, when no further clarification is provided. But the matter of vagueness deserves to be put into context.
People around here tend to think that vagueness in copyright is good (See Michael Spence and Timothy Endicott ‘Vagueness in the Scope of Copyright’ (2005) 121 Law Quarterly Review 657-680).
I tend to think, as Endicott does in his other works on vagueness in law, that though sometimes there is, indeed, value in vagueness — which Endicott sees as a necessary property of law — the role of law in providing us with reasons for action implies that laws cannot be so vague as not to be able to guide human behaviour.
So, the fact of being “deliberately vague”, as you put, is not necessarily a defect of the Directive. But the fact of being too vague, of not providing us with reasons that enable us to understand what it takes to act lawfully, is indeed a defect of the Directive and its implementation.
And yet, though I agree with you that the term “effective”, in itself, is too vague, I will side with folks from the IPKat on this one, if I may. On the one hand, the court was merely referring to the fact that playing a pirated game involves transient infringing reproduction. On the other hand, another similar case had provided further clarification on the matter.
As vagueness, complexity is not a necessary defect of law. It is a necessary fact, which we may strive to find the best way to balance and to cope with. Life is increasingly complex. And so is the law. That is perhaps the biggest challenge of contemporary life, and one which leads many people to stick to post-modernist vagaries.
However, unlike what may be the case of most legal observers, the role of courts is not to bemoan the increasing complexity of contemporary life. The role of courts is to provide us with clarity on matters necessary to author our own lives.