Jailbreaking games consoles ruled OK by the European Court of Justice

23 Jan 2014

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Nintendo's 3DS portable games console

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In a ruling on a case between gaming titan Nintendo and Italian company PC Box, the European Court of Justice (ECJ) has ruled that circumventing the protection system of a games console may, in certain circumstances, be lawful.

The case of Nintendo and Others vs PC Box Srl and Others was referred to the ECJ by the District Court of Milan, which required Europe’s highest court to clarify the extent of legal protection afforded Nintendo under the European Parliament’s directive on the harmonisation of copyright.

Nintendo’s Wii and DS consoles feature a recognition system that reads encrypted codes on licensed Nintendo video games, allowing them to be launched and played. This system is intended to prevent the use of illegal copies of video games but, in effect, also prevents the use of other multimedia content on Nintendo consoles.

PC Box markets original Nintendo consoles featuring mod chips that circumvent and deactivate Nintendo’s protection measures and, thus, make applications from independent developers and other rich media content, such as films and MP3 files, playable on the consoles.

The ECJ stated that the European Parliament’s legal protection covers only the technological measures intended to prevent or eliminate unauthorised acts of reproduction, communications, public offer or distribution for which authorisation from the copyright-holder 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.

That is to say, the ECJ has ruled it lawful for PC Box and others to sell modified games consoles that offer access to additional features, as long as these modifications do not help users make and use illegal copies of games.

The ECJ has advised the Milan District Court to determine whether other protection measures, which cause less interference in accessing legal content through the consoles may be implemented, while retaining Nintendo’s copyright protection.

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Elaine Burke is managing editor of Siliconrepublic.com

editorial@siliconrepublic.com