Video game consoles: the use of technological protection measures

In its judgment of 13 February 2014, in the case Nintendo vs. PC Box, the Court of Justice ruled that the concept of an “effective technological measures” is capable of covering technological measures comprising, principally, equipping not only the housing system containing the protected work, such as the videogame, but also portable equipment or consoles intended to ensure access to those games and their use. The national courts must determine whether other measures could cause less interference with the activities of third parties and must also examine the purpose of devices capable of circumventing the technological measures.

Nintendo markets two types of products for games, DS consoles and Wii consoles. In order to prevent the use of illegal copies of videogames, Nintendo have adopted technological measures. Game lacking the encrypted code of the physical housing system onto which the videogame is registered cannot be launched on the equipment marketed by Nintendo. However, PC Box markets original Nintendo consoles together with additional software which circumvent the protection system. Nintendo brought an action before the Italian court against PC Box claiming that the purpose of the PC Box equipment is to circumvent and to avoid the technological protection measures. Nevertheless, PC Box stated that the purpose pursued by Nintendo is to prevent the use of independent software which does not constitute an illegal copy of the videogames, but which is intended to enable MP3 files, movies and videos in order to fully use those consoles. The Italian Court asked the CJEU to ascertain whether the implementation of such technical protection measures exceeds what is provided for that purpose by the Directive on the harmonization of certain aspects of copyright in the information society.

The Court stated that videogames constitute complex matter comprising not only a computer program but also graphic and sound elements, which, although encrypted in computer language, have a unique creative value. As long as the parts of the videogame are part of its originality, they are protected by copyright, together with the entire work. The legal protection against acts not authorized by the right holder of copyright must respect the principle of proportionality and should not prohibit activities which have a commerciality significant purpose or use other than to circumvent the technical protection. Accordingly, the legal protection is granted only with regard to technological measures which pursue the objective of preventing or eliminating unauthorized acts, but only to the extent those measures don’t exceed what its necessary to achieve that objective. The Court concluded that the national courts have to determine whether other measures or measures which are not installed in consoles could cause less interference with the activities of third parties or limitations to those activities, while still providing comparable protection of the right holder’s rights.