Unlike the case of the prohibition of circumvention to gain unauthorized access to a work
under Section 1201(a)(1), the prohibitions of Sections 1201(a)(2) and 1201(b) were not
suspended for a two year period and went into effect immediately under the DMCA. Thus, the
DMCA set up the curious situation in which, for the initial two year period, it did not directly
prohibit circumvention of a technological measure to gain access to a work, but did prohibit the
manufacture, sale or importation of devices that would enable or assist one to gain such access.
Another curious aspect of the DMCA is that it authorizes the Librarian to create
additional exceptions via rulemaking only to Section 1201(a)(1), but not to Sections 1201(a)(2)
and 1201(b). Thus, the DMCA appears to allow the Librarian to permit acts of circumvention in
additional situations, but not the devices necessary to enable or assist such acts.
(i) Sony Computer Entertainment America v.
Gamemasters
In this lawsuit, Sony Computer Entertainment America (SCEA) obtained a preliminary
injunction against the defendants, who were distributing a device called the “Game Enhancer”
that enabled players to play Sony PlayStation games sold in Japan or Europe, and intended by
SCEA for use exclusively on Japanese or European PlayStation consoles, on U.S. PlayStation
consoles.^839 The Sony PlayStation console was designed to operate only when encrypted data
was read from a game CD-ROM verifying that the CD was an authorized, legitimate product
licensed for distribution in the same geographical territory of the console’s sale.^840
The Game Enhancer enabled a player to trick a U.S. PlayStation console into playing a
Japanese or European authorized game CD by the following method. After inserting an
authorized CD game, the user was instructed to hold down the disk cover switch of the console
while keeping the lid or disk cover open. The Game Enhancer was then turned on and its
internal operating system selected for execution, thereby replacing the PlayStation console’s
internal operating system. The validity and territorial codes were read from the authorized CD,
thereby instructing the console that the inserted CD was valid and authorized. The user was then
instructed to hit the “select” button on the game controller to signal the console to stop the CD
motor, enabling the player to remove the U.S. authorized game CD and replace it with a CD that
was authorized for play only on a Japanese or European console. Once the game was loaded, the
Game Enhancer then returned control to the PlayStation’s operating system, and the
unauthorized game could be played.
The court ruled that, because the Game Enhancer was a device whose primary function
was to circumvent the mechanism on the PlayStation console that ensured the console operated
only when encrypted data was read from an authorized CD-ROM, the Game Enhancer had a
primary function to circumvent a technological measure that effectively controls access to a
copyrighted work and was therefore a violation of Section 1201(a)(2)(A). The court ruled that
(^839) Sony Computer Entertainment America v. Gamemasters, 87 F. Supp. 2d 976, 981 (N.D. Cal. 1999).
(^840) Id.