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The Court of Appeal (Burnton LJ, Penry-Davey J and Sharpe J) on Friday upheld the convictions of Christopher Gilham in Hereford Crown Court for numerous offences contrary to copyright and money-laundering legislation. Anthony Vines appeared on behalf of Worcestershire County Council.

 

The appellant had operated a retail business selling modchips for various game consoles.  In general terms, the modchips had the effect of fooling the consoles and enabling counterfeit game disks to be played.  Such devices are controlled by s.296ZB of the Copyright Designs and Patents Act 1988 since they are “effective technological measures” which restrict or prohibit the unlawful copying of copyright works which, in the context of computer games, are digital graphics, images and sounds.

 

Following on from the approach of Jacob LJ in Higgs [2008] EWCA Crim 1324, which was another modchips prosecution which had concerned in part the copying of digital data comprising the copyright works in the Random Access Memory of each game console (“the RAM”), the principal issue raised by the Appellant was whether what occurred in RAM was in fact unlawful copying within the meaning of the CDPA. The Appeal had been certified as fit for appeal by the trial judge following conviction and, pending the hearing of the appeal, various cases in the UK had been adjourned.

 

In the course of argument focused upon the safety of the convictions however, Burnton LJ approached the case not from the technical complexity of what was occurring in RAM but from what was able to be viewed subsequently upon the monitor of each console in the course of a game.

 

The appeal was dismissed and the Court has reserved the reasons for its judgment until a later date.