Pretty important copyright ruling this week out of the European Court of Justice, the EU’s highest tribunal, which held that circumventing “technical protection measures” (TPMs) on game consoles can be lawful in certain circumstances. Apart from its immediate impact on console makers, the court’s opinion holds implications that could go well beyond the games market.
The case was brought in Italy by Nintendo against PC Box, which sells “mod” kits for Nintendo consoles and handhelds that enables those devices to play “homebrew” games and other non-Nintendo content. That kits do that essentially by disabling the authentication system by which the devices check to see whether a game inserted into the device is legit (i.e. not a bootleg copy) before the game can play.
Nintendo argued that PC Box’s mod chips are simply intended to circumvent its protection measures, in violation of EU copyright law, so users can play pirated games. PC Box claimed it was simply enabling Wii and DS owners to make lawful uses of their devices.
The court ruled that the law’s protection of TPMs against circumvention does not apply where those TPMs have the effect of blocking commercially legitimate uses along with illegitimate ones if a less restrictive alternative is available:
[L]egal protection is granted only with regard to technological measures which pursue the objective of preventing or eliminating..acts not authorised by the rightholder of copyright…Those measures must be suitable for achieving that objective and must not go beyond what is necessary for this purpose.
In those circumstances, it is necessary to examine whether other measures or measures which are not installed in consoles could have caused less interference with the activities of third parties not requiring authorisation by the rightholder of copyright or fewer limitations to those activities, while still providing comparable protection of that rightholder’s rights.
Accordingly, it is relevant to take account, inter alia, of the relative costs of different types of technological measures, of technological and practical aspects of their implementation, and of a comparison of the effectiveness of those different types of technological measures as regards the protection of rightholder’s rights, that effectiveness however not having to be absolute [emphasis added].
Apart from inviting a rash of new lawsuits from people claiming that this or that DRM system goes too far or interferes with legal activities, the ruling comes as the European Commission is in the midst of a public consultation on modernizing the current EU Copyright Directive, which includes the ban on circumvention in which the court just blew a major hole.
The protection of TPMs and the legality of circumventing them was not expected to be a major part of that review, or of whatever revised directive might come out of it. But in light of this week’s ruling, it’s hard to imagine that it won’t now become a major part.