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Does the CJEU ruling in Nintendo and Others v PC Box Srl raise serious implications for device manufacturers?

- UK

The CJEU yesterday ruled on questions relating to the use of technological protection measures (“TPMs”) to prevent devices from being used for purposes other than those permitted by the manufacturer. Nintendo implements TPMs on its Wii and DS consoles to prevent games which infringe copyright being played on them. However, another effect of the TPMs is to prevent any programs, games and multimedia content not from Nintendo (but which is not infringing) being used on the Nintendo consoles. The CJEU has effectively said that Nintendo may use TPMs to prevent illegal use of videogames but not to prevent other, non-infringing, uses of the consoles. You can read the judgment here but we have set out a brief summary here.

The relevant legislation states that:

  • TPMs are permitted where they prevent or restrict acts which are not authorised by rightsholders; and
  • the TPMs must be proportionate and should not prohibit devices or activities which have a commercially significant purpose other than to circumvent those measures.

In the Nintendo v PC Box case:

  • PC Box alleges that the TPMs employed by Nintendo in its Wii and DS consoles are disproportionate because not only do they prevent the use of infringing games but they also prevent use of the consoles for programs, games and generally, multimedia content not from Nintendo (but which is not infringing);
  • the CJEU has referred the case back to the national court in Italy to determine whether other, more proportionate TPMs are available to Nintendo; and
  • in reaching its decision the Italian court also has to investigate the purposes for which PC Box’s circumventing technology is actually used (i.e. how often it is used in order to allow copyright infringing and non-copyright-infringing activities).

Preliminary thoughts on this are:

  • it’s worrying that device manufacturers potentially have no control over what their devices are used for – control could be exercised against the consumers via terms and conditions but in practice this is a blunt instrument when recourse is required against the provider of technology that allows the workaround/circumvention;
  • it’s hard to see how in practice a hardware manufacturer could incorporate technical protection measures that only prevent the illegal use of content and that do not also prevent some other (often theoretical) legitimate use of content; and
  • the focus of the Italian court’s enquiry seems incorrect – it is based on facts (i.e. what the PC Box technology is used for) as opposed to what the PC Box devices could be used for or what the intended purposes are.

*This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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