Circumventing technological protection measures (TPMs) in game consoles...

copies” through a website managed by it and hosted by 9Net, the court said. Nintendo installs TPMs on its portable DS model and fixed Wii consoles to prevent illegal copying of videogames; and games lacking the encrypted code can’t be launched on either of the equipment types marketed by Nintendo, it said. The TPMs also prevent the use on Nintendo consoles of programs, games and multimedia content not from Nintendo, it said. PC Box markets original Nintendo consoles along with additional software that consist of applications from independent manufacturers, the use of which requires the installation of PC Box equipment that circumvents and deactivates the consoles’ TPM, it said. Nintendo sued PC Box and 9Net in Italy, where PC Box contended that Nintendo’s real reason for installing TPMs is to prevent use of independent software that isn’t an illegal copy of videogames but is intended to enable MP3 files, movies and videos to be read on the consoles in order to make full use of the devices, the court said. The Italian court referred the case to the EU high court to clarify Nintendo’s legal protection under the EU directive on the harmonization of certain aspects of copyright in the information society. Copyright protection against unauthorized acts “must respect the principle of proportionality,” and shouldn’t prohibit devices or activities that have a “commercially significant purpose or use other than to circumvent the technical protection,” the ECJ said. The scope of legal protection of TPMs shouldn’t be gauged according to how use of a console is defined by the copyright holder, but by examining its purpose for the circumvention of TPMs, taking account of the use that third parties actually make of them, the court said. It’s up to the Italian court to determine whether other effective TPMs would cause less interference with third parties’ use of the consoles while still offering comparable protection of Nintendo’s rights, it said. Among other things, the national court could consider the costs of different types of technical measures, and whether PC Box’s equipment is used more often to run unlawful copies of Nintendo games or for non-infringing purposes, it said. The decision “may have an important effect in the development of copyright legislation in Europe,” said independent telecom consultant Innocenzo Genna on his radiobruxelleslibera blog (http://bit.ly/LYufoE). Although the ruling deals with a very specific case, the court gave “an important signal” to the EU institutions that will be revising EU copyright law in coming years, he said. The decision shows that “not everything is piracy,” and that copyright protection shouldn’t be allowed to undermine innovation and business development, he said.