EU court rules that it may be lawful to circumvent console protections

The Court of Justice of the European Union ruled today in a case involving Nintendo and PC Box that circumventing a protection system of a game console may, in certain circumstances, be lawful.

Nintendo of America and Nintendo of Europe had brought a case against retailer PC Box over its distribution of software that allows users to circumvent and deactivate the technology protection measures Nintendo employs in its DS and Wii consoles.

The filing states that both the DS and Wii have recognition systems and encrypted codes that prevent the use of illegal copies of games. It also prevents programs, games and multimedia content other than Nintendo's from running on the consoles. The PC Box allows users to bypass these protections and enables the viewing of movies, videos and MP3 files on both the DS and the Wii.

Nintendo states that once PC Box equipment is installed on the consoles, it enables "illegal use of video games." PC Box disputes this claim, stating that Nintendo's goal is to "prevent use of independent software, which does not constitute an illegal copy of video games, but which is intended to enable MP3 files, movies and videos to be read on consoles, in order to fully use those consoles."

The Court of Justice ruled today that it is not unlawful for PC Box to offer equipment that circumvents Nintendo's protections because the content that can then be viewed on the consoles is not in and of itself illegal. The court states that "the legal protection covers only the technological measures intended to prevent or eliminate unauthorized acts of reproduction, communication, public offer or distribution."

Nintendo issued a statement today saying that it will "continue to fully engage with the Milan Tribunal, from whom the reference to the CJEU arose, in order to allow it to reach a considered reasoned decision in the civil case between Nintendo and PC Box.

"Furthermore, since Nintendo only ever utilizes technological protection measures which are both necessary and proportionate to prevent widespread piracy of its intellectual property, and since the preponderant purpose of the circumvention devices marketed by PC Box is to enable piracy of legitimate video games, Nintendo is confident that the application of the guidance set out by the CJEU relating to proportionality will enable the Milan Tribunal to determine that the sale of circumvention devices is unlawful," the statement reads.

"In the meantime, Nintendo maintains that the commercial dealings in circumvention devices infringe copyright laws as well as other intellectual property laws and Nintendo will continue to pursue those involved in the distribution of such devices."

The complete judgment of the court can be read here.

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