ECJ: Circumventing protection systems may be lawful in certain cases

By EDRi · January 29, 2014

In a judgement issued on 23 January 2014, the EU Court of Justice ruled
that circumventing a protection system of a games console may be lawful
under certain circumstances.

The decision was taken in a case brought to the Milan District court by
Nintendo against the Italian retailer PC Box Srl. Nintendo sued PC Box
for selling modified DS and Wii systems to bypass built-in encryption.
PC Box claimed that DS and Wii owners should be allowed to access other
content on the consoles as long as Nintendo’s copyrighted material was
not affected.

The Milan court addressed the ECJ in the matter in order to clarify the
extent of the EU’s copyright laws and the degree to which Nintendo’s
protection is granted. The court considered that a console owner could
run any software or media they wanted if the measures taken were not
explicitly intended to allow piracy.

In ECJ’s opinion, Directive 2001/29/EC requires the Member States to
provide adequate legal protection against the circumvention of any
effective “technological measure” meant to prevent or restrict
unauthorised acts of reproduction, communication, public offer, or
distribution. The directive protects the copyright holder against acts
which require his authorisation.

The court also explained that the manufacturer of the console is
protected against that circumvention only in the case where the
protection measures seek to prevent illegal use of videogames.

Although it may appear as if the Court has offered a decision favouring
PC Box, it actually could, in the end, be in favour of Nintendo. In the
end, it would be the Milan Court that would asses the issue on the matter.

Actually, Nintendo announced that it was pleased with the decision as,
in their opinion, PC Box did intend to enable piracy.

EU Court of Justice ‘s Press Release (23.01.2014)

Court Judgement (23.01.2014)

CJEU says that circumventing a protection system may be lawful
(sometimes) (23.01.2014)

EU Court of Justice finds homebrew circumstantially lawful in Nintendo
anti-piracy case (23.01.2014)