Protecting computer games: the CJEU has a sting in its tail for Nintendo

An important extension to European copyright law concerns technological protection measures (TPMs), in other word forms of encryption used to protect digital content. Although relied on for many forms of content delivery, the area is infrequently litigated. The European Court of Justice has now reviewed the legal limits of TPMs in a decision dated 23 January 2014.

Nintendo uses TPMs around its Wii and DS devices. It brought proceedings in Italy against two providers of means to get around the encryption placed by Nintendo on its game devices, PC Box Srl and 9Net Srl. The defendants argued that they were not seeking to infringe the copyright in any Nintendo copyright works (such as games themselves) but to open up the capabilities that were inherent in the Nintendo devices to do things other than play games, such as to play DVDs or access the web.

Under the Infosoc Directive, TPMs are afforded legal protection against their circumvention. However, this is qualified by a requirement of proportionality so, for example, devices with a commercially significant purpose other than circumvention to enable copyright infringement should not be prohibited. The main issue in dispute was therefore the extent to which Nintendo’s TPMs were ‘proportionate’ to the aim of preventing copyright infringement…

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