Why did the judges even go there?
There's no question that the defendant had broken the law by selling mod-chips (see section 296ZB http://www.opsi.gov.uk/si/si2003/20032498.htm#24)
What I don't understand is why the judges said:
14. In order to establish that an offence under, by way of example, section 296ZB (c)(i) of the CDPA has been committed in relation to games such as those concerned in the present appeal, the prosecution must prove:
(2) That the playing of a counterfeit DVD on a game console involves the copying of a copyright work."
as I can see nothing in the legislation that states that.
But now, thanks to the judges introducing that element, they've allowed themselves to establish this ridiculous and unnecessary new precedent.
I'm sure a jury would have shown more common-sense but they've got that covered as well:
"30. Cases that, for example, involve determination of difficult questions whether a copy is of a substantial part of a copyright work, can and should be tried in the Chancery Division before specialist judges. They can be so tried much more efficiently in terms of cost and time than before a jury, and questions of law can if necessary be determined on appeal on the basis of clear findings of fact."