Nintendo says it’s confident that a European Union Court of Justice ruling on DRM means that the sale of circumvention devices will ultimately be declared illegal.
The European Union Court of Justice recently ruled that the circumvention of DRM technology may be legal under some circumstances. For a lot of people, the takeaway is that it’s okay to bypass DRM as long as you’re doing so for lawful purposes, but in Nintendo’s eyes it’s another step closer to final victory over the pirates.
Nintendo said in a statement that it is “pleased” with the ruling, which “appears to be in line with the international obligations of the European Union and its Member States under the WIPO Copyright Treaty” and supports previous rulings in other nations including France, Germany and the U.K. That upbeat attitude presumably arises out of the part of the ruling that states, “It is necessary to examine the purpose of the 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.”
That’s where Nintendo sees its opening: It’s not relevant that these technologies can be used for lawful purposes if everyone is using them to infringe on copyright. “Since Nintendo only ever utilizes technological protection measures which are both necessary and proportionate to prevent widespread piracy of its intellectual property, and since the preponderant purpose of the circumvention devices marketed by PC Box is to enable piracy of legitimate video games, Nintendo is confident that the application of the guidance set out by the CJEU relating to proportionality will enable the Milan Tribunal to determine that the sale of circumvention devices is unlawful.”
The long and the short of it, at least to my non-lawyer interpretation, is that while the EU Court of Justice ruling opened the door to circumvention being declared, if not legal, then at least not inherently illegal, it also provided Nintendo the opportunity to demonstrate that the circumvention technology is being used primarily for infringing purposes. If it can successfully do so (and I can’t imagine it will be very difficult) then it may yet be able to mark this one in the “win” column.