Circumvention of TPMs—should PC Box play the long game with Nintendo?

Circumvention of TPMs—should PC Box play the long game with Nintendo?

What technical protection measures featured in this case?

Case C-355/12 Nintendo and Others v PC Box 

Under the Information Society Directive, companies’ technical protection measures (TPMs) employed to protect against acts unauthorised by copyright and database right owners are legally protected. The scope of that protection and the actual use of devices, products or components capable of circumventing effective TPMs was put under the spotlight in this case.

Loosely, the factual matrix was this—Nintendo companies have adopted TPMs whereby their portable consoles contain a recognition system and their video games, encrypted code. Provided together, these measures prevent the use of illegal copies of video games but also of programs, games and multimedia content that does not originate from Nintendo. PC Box markets original Nintendo consoles with additional software from independent manufacturers. These ‘homebrew applications’, created specifically for the Nintendo consoles, result in circumvention of the TPM.

Unsurprisingly, Nintendo sued PC Box. The Tribunale di Milano referred a couple of questions to the CJEU.

What clarification did the Tribunale di Milano seek from the CJEU?

The court wanted to know, in essence:

• whether an effective TPM, under the Information Society Directive, covered measures comprising equipping not only the housing system containing the protected work, such as the videogame, with a recognition device, but also portable equipment or consoles intended to ensure access to those games and their use

• what criteria should  be used to assess the scope of legal protection against circumvention of TPMs—in particular whether it was correct to examine:

  • the particular intended use attributed by the rightholder to the product (here the Nintendo consoles) in which the protected content is inserted
  • the scope, nature and use of the devices products or components capable of circumventing TPMs

What did the CJEU clarify in relation to TPMs?

The CJEU decided:

• technological measures such as those partly incorporated in the physical housing of videogames and partly in consoles and which require interaction between them, fall within the concept of ‘effective technological measures’ if their objective is to prevent or to limit acts adversely affecting the rightholder

• criteria for examining the scope of legal prote

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