Nintendo vs PC Box: Circumventing the law in copyright of gaming systems

Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.

One of the great shortcomings of today’s gaming systems is the interoperability of the multimedia experience. A Wii can’t work on an XBOX which can’t work on a Playstation. However, beyond that it often takes special equipment to circumvent the protections against using the device to watch DVDs or Blu-Ray or even watch videos or listen to music.

A fascinating ruling (preliminary) was released by the ECJ recently on the case between games giant Nintendo and PC Box. Nintendo had taken a series of protectionist measures to ensure that its games are protected from copyright infringement. Nintendo argued that they had adopted technological measures to prevent infringing games to be used, namely a recognition system installed into the games console itself. It has also encrypted the code found in the physical housing system onto which the videogames which are protected by copyright are registered. Those measures have the effect of preventing the use of illegal copies of videogames. Games without this code cannot be launched by either of the console systems Nintendo currently offer.

PC Box, however, sells equipment which, once installed on the console, circumvents the protection system present on the hardware thus enabling illegal use of videogames. However, PC Box also argued that Nintendo’s real aim is to prevent use of independent software which does not constitute an illegal copy of videogames, but which is intended to enable MP3 files, movies and videos to be read on consoles, in order to fully use those consoles.

Accordingly, Nintendo felt that the primary purpose of the product offered by PC Box was to circumvent the technological measures implemented into its products. PC Box actually went as far as offering Nintendo consoles with software from independent manufacturers created specifically to be used in consoles where the technological protection measure had been deactivated.

The court was referred two questions by an Italian Court which asked whether the European Directive regulating in this area must be interpreted in a way that means the protection of technological protection measures attaching to copyright protected works or other subject matter may also extend to a system, produced and marketed by the same undertaking, in which a device is installed in the hardware which is capable of recognising on a separate housing mechanism containing the protected works a recognition code.

The court wanted to know whether protection extends to products that cannot operate without the recognition code because without it, the works cannot be visualised or used in conjunction with that system. Accordingly, the equipment in question incorporates a system which precludes interoperability with complementary equipment or products other than those of the undertaking which produces the system itself.

I didn’t make that up.

Essentially what they wanted to know is, does the Directive extend to those devices which rely on a piece of code to verify the copyrighted code in another housing device when it refuses to work on other equipment?

Secondly, the Court was asked whether national courts should consider the use of a product to circumvent a technological protection measure trumps other purposes or uses allowed. This is important because some devices have other more valuable uses other than the functionality of enabling or performing the circumvention of the technological measures. These uses do not infringe copyright and may often have valuable uses like playing alternative formats of audio or video (MP3, MKV or AVI files come to mind). In this regard, the legality of these measures will be determined, among other things, by its utility from point of view of the one who is using them. However, given that it is for the national court to determine the actual use, the challenge will be to get forensic and documentary evidence of this actual use.

Question 2 boiled down to the following: what types of criteria – quantitative and/or qualitative – should be relied upon when assessing whether the mod chips or game copiers “have only a limited commercially significant purpose or use other than to circumvent” the technological measures put in place by Nintendo?

What does this mean? The technological protection measures attaching to copyright-protected works or other subject matter can be rightfully implemented not only in the physical support (DVD, Blue-Ray, etc.) but also in the device (hardware) which is capable of reading/playing the content (i.e., in the gaming console). However, rather controversially the court ruled that the legal protection of copyright holders shall not prohibit those devices or activities whose principal purpose is not to circumvent and to avoid the technological protection of games.

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