DRM Circumvention May Be Legal, European Union Court Rules

DRM Circumvention May Be Legal, European Union Court Rules

R4 chip

The European Union Court of Justice has ruled that circumventing DRM on game devices may actually legal under some circumstances.

Nintendo had a pretty good run of luck trying to maintain the integrity of its DRM measures, but it's hit a bump in the road in the form of the European Union Court of Justice. Nintendo had launched legal action in Milan District Court against a company called PC Box, which sells homebrew software requiring the installation of separate programs that defeat Nintendo's DRM. The Milan court then went to the EU court for clarification of the law.

In its ruling, the EU Court of Justice said the law offers legal protection to "only the technological measures intended to prevent or eliminate unauthorized acts of reproduction, communication, public offer or distribution, for which authorization from the copyrightholder is required. That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection for unlawful purposes."

"The Court of Justice notes that the scope of legal protection of technical measures must not be assessed according to the use of consoles defined by the holder of copyright, but that rather it is necessary to examine the purpose of devices provided for the circumvention of protection measures, taking account, according to the circumstances at issue, of the use which third parties actually make of them," the ruling states.

In other words, it's not enough for Nintendo or anyone else to demand prohibition of a technology simply because it can be used for circumvention. The EU court also instructed Milan to look at the specifics of the case, including whether Nintendo could use other forms of DRM that prohibit piracy while allowing lawful homebrew software to run. It may not be the sort of big, sweeping ruling that immediately changes the world, but the simple (and very reasonable) declaration that there are times when it's acceptable to bypass DRM measures has the potential to have a powerful effect on copyright in the future.

Source: Techdirt

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Great news! DRM gets so badly in the way of legal users, producers and owners. Homebrew certainly plays into that, but it's not the only example. This ruling is a good sign for consumer protections and rights in my book.

Finally, common sense might be making a come back.

After removing all the legal jargon, this says that DRM is allowed in particular to prevent piracy. However, if you do implement it you better be sure it doesn't screw with the user's experience. DRM used to prevent illegitimate use cannot also be capable of preventing legitimate use.

IMO it sounds like forcing single player games to log into an online server in order to play may not technically be illegal, but having said servers crash could be, as it infringes upon our rights and ability to use personal property.

I don't understand how this is even in question when under EU law both hardware and software products are users possessions to do with as they will.

Obviously companies can deny you support if you tamper with things and you aren't allowed to distribute copies without their consent but that is as far as their reach goes, they can not dictate how you use your shit because it is actually your shit.

So, now the proverbial gun has to actually be smoking before we assume someone has fired it?
Took bloody long enough.

Of course, I doubt this will prohibit the trend of "self-bricking" DRM measures like those found in the 3DS; since the ruling discusses circumvention of DRM specifically and not its operation.

EU judicial system is pretty good. They really care about the context of each situation and the consumer rights. And it's also impossible to bribe them because of all the regulations and the way the system is constructed.

So what about the legality of breaking the DRM to remove region-locking and play legally-purchased-but-out-of-region games?

TiberiusEsuriens:
After removing all the legal jargon, this says that DRM is allowed in particular to prevent piracy. However, if you do implement it you better be sure it doesn't screw with the user's experience. DRM used to prevent illegitimate use cannot also be capable of preventing legitimate use.

IMO it sounds like forcing single player games to log into an online server in order to play may not technically be illegal, but having said servers crash could be, as it infringes upon our rights and ability to use personal property.

It's actually not saying anything at all about DRM.

It's saying something about bypassing DRM. The ruling is rather simple, you're allowed to create and use software and hardware that's capable of bypassing DRM if and only if it has legitimate uses outside of bypassing DRM.

To put it in an easy comparison, it's like torrents. Torrents can be used for piracy. Torrents can also be used for legitimate file sharing. Therefore torrenting software is legal (still not legal to pirate with it, but that's your own fault not the software's fault).

Good to see that some parts of this world are still a little sane.

Nintendo, your an asshole for even trying this. Let people have their homebrew for fucks sake.

JarinArenos:
So what about the legality of breaking the DRM to remove region-locking and play legally-purchased-but-out-of-region games?

That would be legal as your action doesn't break the law, you only broke DRM to play a legal purchase which the law allows. It doesn't allow the break of DRM to infringe upon copyright, which means so long as you purchase the software you wish to play you are A okay.

Valderis:
Good to see that some parts of this world are still a little sane.

Nintendo, your an asshole for even trying this. Let people have their homebrew for fucks sake.

Yes Nintendo, you are an asshole for trying to protect your own software and the software of developers for your console, you bastards!
The mass majority of people who home brew do it for absolutely legal reasons, they don't do it in order to run pirated copies of software, that is absurd! (which the law says is still illegal just an FYI).

Galen Marek:

JarinArenos:
So what about the legality of breaking the DRM to remove region-locking and play legally-purchased-but-out-of-region games?

That would be legal as your action doesn't break the law, you only broke DRM to play a legal purchase which the law allows. It doesn't allow the break of DRM to infringe upon copyright, which means so long as you purchase the software you wish to play you are A okay.

Valderis:
Good to see that some parts of this world are still a little sane.

Nintendo, your an asshole for even trying this. Let people have their homebrew for fucks sake.

Yes Nintendo, you are an asshole for trying to protect your own software and the software of developers for your console, you bastards!
The mass majority of people who home brew do it for absolutely legal reasons, they don't do it in order to run pirated copies of software, that is absurd! (which the law says is still illegal just an FYI).

So, building off this decision, I desperately want to see a company that specializes in console mods (and hell, video players if they can manage it) that specifically disable region checks while leaving other protections in place. All nice and legal, and they'd probably make a mint.

Ah, proportionality. That word which the US legal (and political, by all appearances) system has long struck from its collective vocabulary.

Monsterfurby:
Ah, proportionality. That word which the US legal (and political, by all appearances) system has long struck from its collective vocabulary.

A word that is rampantly used in all manner of ECJ decisions and in all parts of the EU, as far as I can tell from my EU law studies.

Andy Chalk:

The European Union Court of Justice has ruled that circumventing DRM on game devices may actually legal under some circumstances.

Also, not trying to nitpick here but the article confuses the European Union Court of Justice(Court of Justice of the European Union), which is the collective judicial institutions of the European Union, with the European Court of Justice, the highest level court in the European Union and the one actually making the ruling here.

Don't worry it's all supposed to be horribly confusing and impenetrable to anyone not studying it.

You know Nintendo, a lot of this could be prevented if you got ride of your stupid region-locking because it's so archaic.
I am Neronium, complainer of the retarded region locking system! >:D

Either way, it's only a matter of time before a new, worse method is implemented.

Adam Jensen:
EU judicial system is pretty good. They really care about the context of each situation and the consumer rights. And it's also impossible to bribe them because of all the regulations and the way the system is constructed.

The only downside being that in this particular area their rulings have gone pretty much ignored. Remember them saying that digital content actually is yours, and yours to resell? Even in their jurisdiction (I live in the Netherlands), that has changed exactly nothing about any kind of DRM on digital content whatsoever - account-binding, single-use product keys are still there, and show no signs of going away any time soon.

Chances are that the tangible result of this decision is that Nintendo will start using a different court (where possible) to scare people into submission.

Kargathia:

Adam Jensen:
EU judicial system is pretty good. They really care about the context of each situation and the consumer rights. And it's also impossible to bribe them because of all the regulations and the way the system is constructed.

The only downside being that in this particular area their rulings have gone pretty much ignored. Remember them saying that digital content actually is yours, and yours to resell? Even in their jurisdiction (I live in the Netherlands), that has changed exactly nothing about any kind of DRM on digital content whatsoever - account-binding, single-use product keys are still there, and show no signs of going away any time soon.

Chances are that the tangible result of this decision is that Nintendo will start using a different court (where possible) to scare people into submission.

Its actually a legal thing rather than a practice thing. For example you buy a EA game, or a Ubisoft game, and their EULA says you bought a service that they can terminate whenever, the usual legal bollocks. This is void. The EULA doesnt apply to the EU, in fact it only, if at all, applies to the US. Which means if for example you got games on Steam and Steam were to ban you from playing them, i.e. you got no access to your library of games or ability to play them, just for the sake of argument assume this happened, you can actually sue them and win because the games in your library are yours and Steam can not legally take away your access to them, even if "its a service" is in their ToS and EULA and so forth.

That being said, in the EU, using cracks is a legal grey area actually, obviously people dont like it, but you cant get a jailterm or anything for this. You shouldnt run around and tell publishers how you cracked their games, but using one is not illegal at all, hasnt been ever afaik. What is illegal was the whole "distributing the game over the internet" thing, you cant make the game accessible to other people.

I wonder how this would have been handled in the US-"Hey lets get rid of net neutrality! Good idea!"-A.
Probably with lifetime jail sentences for flashcard owners.

Nintendo pretty much sawed whatever shaky leg they had to stand on off when they thought imposing region locks on handhelds is the way to go.

Good but this is just a small step towards normalcy from the current state of events, which is absolutely insane.

In fact I don't understand why the heck does DRM have any sort of legal protection at all. If I pirate something (illegally), then why should it matter whether I circumvent DRM in the process or not? As it is now, DRM not only makes harm at every step, it even has legal protection.

Mr.K.:
I don't understand how this is even in question when under EU law both hardware and software products are users possessions to do with as they will.

Obviously companies can deny you support if you tamper with things and you aren't allowed to distribute copies without their consent but that is as far as their reach goes, they can not dictate how you use your shit because it is actually your shit.

Pretty much this. In EU law you are allwoed to use cracks on every single legal purchase you bought, including the singleplayer Sim City cracks. You are allowed to mod the game in any way you want (no, your guidelines are not binding EA, go away). The game is your item that you own. The EU supreme court even said that steam must provide the possibility to resell games your own. And from what people with law degrees analyzed it means that it would take one well laid out complain and steam would have to do that or stop trading in EU, and i doubt they are sacrificing that market. Of course this means little to the americans since for some reason region locking is still a thing (it didnt make sense then, it does even less now).
Too bad the rest of the world seems to be crazy.

Galen Marek:

Yes Nintendo, you are an asshole for trying to protect your own software and the software of developers for your console, you bastards!
The mass majority of people who home brew do it for absolutely legal reasons, they don't do it in order to run pirated copies of software, that is absurd! (which the law says is still illegal just an FYI).

Yes, Nintendo are assholes for treating products we bought and own as theirs. We bought the console, therefore it is our and we are allwoed to do whatever we want with it, including creating it into makeshift robbot.
It is perfectly ok to punish people who do illegal things with the harware they own. it is not legal to punish the legal costumers because there exist some illegal ones.

Kargathia:

The only downside being that in this particular area their rulings have gone pretty much ignored. Remember them saying that digital content actually is yours, and yours to resell? Even in their jurisdiction (I live in the Netherlands), that has changed exactly nothing about any kind of DRM on digital content whatsoever - account-binding, single-use product keys are still there, and show no signs of going away any time soon.

Chances are that the tangible result of this decision is that Nintendo will start using a different court (where possible) to scare people into submission.

the thing is....people are accepting that. you could sue steam for not allowing you to resell your games based on this and you would be in the legal right. but will you? no. and thats why DRM still exists in this manner.

A-D.:

Its actually a legal thing rather than a practice thing. For example you buy a EA game, or a Ubisoft game, and their EULA says you bought a service that they can terminate whenever, the usual legal bollocks. This is void. The EULA doesnt apply to the EU, in fact it only, if at all, applies to the US. Which means if for example you got games on Steam and Steam were to ban you from playing them, i.e. you got no access to your library of games or ability to play them, just for the sake of argument assume this happened, you can actually sue them and win because the games in your library are yours and Steam can not legally take away your access to them, even if "its a service" is in their ToS and EULA and so forth.

would that also extend to VAC banned players? they are essentially banning you from multiplayer part of the game and for some games its the most important part of the package. all it takes is one crazy mod with ban power in a signle server to ban you from all servers, so false bans is very much possible.

Sgt. Sykes:
Good but this is just a small step towards normalcy from the current state of events, which is absolutely insane.

In fact I don't understand why the heck does DRM have any sort of legal protection at all. If I pirate something (illegally), then why should it matter whether I circumvent DRM in the process or not? As it is now, DRM not only makes harm at every step, it even has legal protection.

because there are those who (falsely) believe that DRM prevent illegal downloads.

this is all legal hogwash i dont understand anything of
But eh corperation lost so it's all good right?

Strazdas:

A-D.:

Its actually a legal thing rather than a practice thing. For example you buy a EA game, or a Ubisoft game, and their EULA says you bought a service that they can terminate whenever, the usual legal bollocks. This is void. The EULA doesnt apply to the EU, in fact it only, if at all, applies to the US. Which means if for example you got games on Steam and Steam were to ban you from playing them, i.e. you got no access to your library of games or ability to play them, just for the sake of argument assume this happened, you can actually sue them and win because the games in your library are yours and Steam can not legally take away your access to them, even if "its a service" is in their ToS and EULA and so forth.

would that also extend to VAC banned players? they are essentially banning you from multiplayer part of the game and for some games its the most important part of the package. all it takes is one crazy mod with ban power in a signle server to ban you from all servers, so false bans is very much possible.

Actually no, if you get banned from one server by some moderator or admin, thats not VAC. VAC means Valve Anti-Cheat, essentially its a automated system that detects if you run online games with trainers or something similar that is essentially giving you an edge over other people. Suppose it depends on the game though whether a mod could affect only you, or everyone. If you had a super-megapowers mod for some game, and you are host, everyone would get the benefit therefore it isnt exactly cheating because its still the same rules for everyone. Now if you had a program that gives you infinite health in a multiplayer game, thats cheating and VAC detects that, but it doesnt ban you from all servers, just all Servers which run VAC.

And no, there is no legal protection for this, you cant sue valve cause you cheated in a game and got banned from official servers. However if you made your own server with a cheat module running, so everyone has the cheats is a grey area there and whatever happens VAC wouldnt ban you. It basicly depends on whether this is serverside or clientside, clientside stuff is detected by VAC.

A-D.:

Actually no, if you get banned from one server by some moderator or admin, thats not VAC. VAC means Valve Anti-Cheat, essentially its a automated system that detects if you run online games with trainers or something similar that is essentially giving you an edge over other people. Suppose it depends on the game though whether a mod could affect only you, or everyone. If you had a super-megapowers mod for some game, and you are host, everyone would get the benefit therefore it isnt exactly cheating because its still the same rules for everyone. Now if you had a program that gives you infinite health in a multiplayer game, thats cheating and VAC detects that, but it doesnt ban you from all servers, just all Servers which run VAC.

And no, there is no legal protection for this, you cant sue valve cause you cheated in a game and got banned from official servers. However if you made your own server with a cheat module running, so everyone has the cheats is a grey area there and whatever happens VAC wouldnt ban you. It basicly depends on whether this is serverside or clientside, clientside stuff is detected by VAC.

I see. and one more question, how about those games where you get VAC banned by cheating in toher games. I know its a legacy mode, only applies to some of Valve own games, but you can get banned in one game and not be able to join in another one. I guess it still doesnt offer any legal protection there. Not that i ever intend to cheat anyway. My one and only attempt to cheat in multiplayer actually resulted in me getting banned within 15 minutes and i decided against it since. Still false positives do happen, especially with human element involved (i once got banned for not agreeing when mod said their server is best out there).

I don't know if I read this right, but the EU rules imply that as long as you purchased the game and wish to get rid of the intrusive DRM you can because what you bought is yours right? So for example you could use a crack (if you'd wish) to bypass the DRM.

Was I on the ball with that one or read it wrong? Regardless, it's good to see EU have some decent rules for once.

DarkhoIlow:
I don't know if I read this right, but the EU rules imply that as long as you purchased the game and wish to get rid of the intrusive DRM you can because what you bought is yours right? So for example you could use a crack (if you'd wish) to bypass the DRM.

Was I on the ball with that one or read it wrong? Regardless, it's good to see EU have some decent rules for once.

That'd be pretty much correct.

Now all we need is to get the US and Japan to accept these consumer rights (forcibly if necessary).

Colt47:
Finally, common sense might be making a come back.

Common sense in IP law is a "one step forward, two steps back" situation.

This is the first time I heard that bypassing DRM isn't legal everywhere, how are people outside the EU still buying into this crap?

 

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