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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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, a Canadian accessories company notorious for its tongue-in-cheek marketing, taunted Sony earlier this year after launching an unofficial Sony PlayStation 5 (“PS5”) product. Unsurprisingly, Sony sent DBrand , which the Canadian company published and used to generate marketing for a newer, allegedly “not illegal,” albeit similar, product.

In February of this year, DBrand released unlicensed PS5 Darkplates, which are essentially a different shell/casing for the console. The PS5, if you are lucky enough to find one, can only be found in white. Until Sony releases official options, consumers who want a different colour must resort to purchasing skins, painting their consoles, or buying a different casing altogether. In the past, other companies have tried to sell custom plates for the PS5. PlateStation5.com, for example, after Sony threatened legal action over a trademark dispute. DBrand is apparently aware of Sony’s efforts to suppress these custom products, as they marketed their Darkplates with the tagline ��

The DBrand Darkplates were available in multiple colours and allowed for They also featured a textured pattern that is reminiscent of Sony PlayStation logos: the circle, square, triangle, and X. DBrand itself stated the pattern was “a familiar-but-legally-distinct apocalyptic spin on the classic PlayStation button shapes.”

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Until Sony caught on, the Darkplates quickly sold out and were placed on back-order. The cease-and-desist letter can be found . The 7-page document expresses that DBrand is infringing Sony’s copyrights in numerous ways, notably by selling plates that replicate Sony’s protected design, featuring the Sony PlayStation family mark logo and shape symbols, and using the PlayStation name to promote their product.

Sony further stipulates that, under both Canadian and US Copyright law, they reserve the right to protect their goodwill and associated intellectual property. The letter refers to the tagline “Go ahead, sue us,” and requests a resolution from DBrand. In response, DBrand pulled the products in issue, published a rather , and later re-released a new similar product: , touted to circumvent any legal issues. The 2.0 model is a different shape, devoid of all Sony logos, and features brand new vents for increased air circulation. The marketing is riddled with references to legality and the conflict with Sony. Even on the header, a scrolling text reads “FUND OUR LEGAL DEFENSE – FREE SHIPPING TO THE USA…” The new model’s tagline? “Checkmate, lawyers.”

Checkmate or not, DBrand’s transparency on the matter and relentless taunts are a curious marketing twist. Whether DBrand has closed the loop on their legal trouble with the brand-new design remains to be seen. Personally, I love the slimming effect of the design. I hope that Sony launches an official option soon.

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The patent application��provides that when a game is purchased, the medium itself (game disk) would contain a unique identification tag which would be read by the reproduction device of the gaming system (Playstation 3 for example).�� The first time the disk is inserted into the gaming system, the reproduction device would record the disk ID and player ID, and use an authentication process to confirm that the combination satisfies Sony’s terms of use. ��If the combination of IDs does not meet the terms of use on any subsequent use of the game, the game will not start. ��The effect of the technology would be similar to having a single licence for the game and will not require internet access to work.�� This process nullifies any resale value of the game (unless you sold the system at the same time).

It is worth noting that this isn’t the first tactic the game developers such as Sony have employed to try and limit the resale of games.�� In the , Sony has attempted to employ the use of passwords to unlock games, but was unsuccessful as passwords could be shared between first-time buyers and subsequent ones.�� Online passes, which limited online play to the first online user of a game were also less effective because they could not limit offline gameplay.�� One method that I experienced first-hand was a bar-code on a game package which prevented resale to commercial businesses such as EB Games. ��The newest tactic by Sony creates a stronger protection by introducing protection measures into the hardware and essentially marrying game disks to game systems.�� This would prevent any second-hand user from playing the game in any capacity.

Despite the effectiveness of the method described in Sony's patent application for preventing the resale of games, there are some obvious unintended�� of this process.�� The first absurd result occurs in a situation where a game system is irreparably damaged.�� As inconvenient as having to buy a new system can be for gamers, if Sony adopted their game to a��system marriage method, it would effectively require gamers to purchase new copies of all of their games in the event��their system broke down. ��It also potentially eliminates the commercial rental market since a game disk will be permanently married to the first system it is played on.�� And though it may be possible for Sony to address these problems in some way, doing so will either be burdensome on the consumer or diminish the effectiveness of this new protection method.

The new applied for��method also greatly affects the rights of consumers.�� The history of the gaming industry until this point has been that games can always be sold, given away, or shared after initial purchase at the whims of the initial purchaser.�� That expectation through past experiences of the gaming community is also reflected in the copyright laws which apply to games.�� One of the fundamental principles of copyright is the (US Copyright section 109) which states that the holder of exclusive rights to sell copies only has that right in-so-far as the first sale of the copy.�� And while the new protection measure doesn’t technically violate the US Copyright Act (you could still sell a disk for zero value), the protection does violate the purpose of the copyright system.

Even if a court would disagree that the first-sale doctrine is violated by this patent, there is a simpler reason why the gaming community shouldn’t worry about this patent.�� That reason is that Sony would have to offer this technology to its competitors in order to affect the gaming industry as a whole.�� If they do not, then consumers will be given the option of purchasing a Sony system, which has these restrictions, or a competitors system (ex. Microsoft system) which does not.�� Since many modern games are produced for multiple systems, Sony’s new protection process will likely hurt their sales.�� Sony also has a number of patents on products that were never introduced into the market therefore it’s possible that this protection patent will never be anything more than theoretical. ��As a result, I doubt the gaming community will need to worry about the widespread adoption of the method described in Sony's patent application��any time soon.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

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