Nintendo has won a court ruling against PC Box, an Italian company that distributed devices to circumvent the Wii U and DS’s technical protection measures (TPM), allowing the use of proprietary software. The ruling states that circumvention devices such as the game copiers and modchip devices distributed by PC Box are in fact mainly used to play pirated games, violating European copyright law.
The ruling marks a dramatic turn in the case against Milan-based PC Box, which won an early victory from the Court of Justice of the European Union (CJEU) in 2014. At the time, the Court of First Instance of Milan sought clarification from the ECJ on the scope of legal protection granted to TPMs under the Information Society Directive. In particular, it asked whether national courts should take into account legitimate uses of circumvention devices, such as playing audio and video files, and whether protection measures should override such uses.
The preliminary ruling of the CJEU (pdf) seemed to be in favor of PC Box. It noted that while the technological protections associated with copyrighted works may be lawfully implemented in software (games) and hardware (the console), such protections must be proportionate and must not prohibit activities that have a “commercially important purpose” or a use other than to circumvent copy protection. Essentially, PC Box’s technology was not illegal because the content it enabled was not itself illegal.
However, the CJEU ruling was purely advisory and the final interpretation of the rules and judgment were ultimately determined by the Milan Tribunal. Aside from ruling that PC Box’s circumvention devices were mainly used to play pirated games, making them illegal, it also noted that Nintendo’s security measures were proportionate and protected by Italian copyright law.
“Nintendo is pleased that this ruling is in line with a long set of judicial precedents established in national courts in a number of Member States, including Belgium, France, Germany, the Netherlands, Spain and the UK,” Nintendo said in a statement. “It is illegal under Italian law to import and sell devices for circumvention and sellers can face criminal penalties and fines, as well as hefty damages. If they sell them.”