Europe's Highest Court Says DRM Circumvention May Be Lawful In Certain Circumstances

from the this-could-be-big dept

One of the many problems with DRM is its blanket nature. As well as locking down the work in question, it often causes all kinds of other, perfectly legal activities to be blocked as well -- something that the copyright industry seems quite untroubled by. Here's an example from Europe involving Nintendo (pdf):

Nintendo markets two types of systems for videogames: 'DS' portable consoles and 'Wii' fixed consoles. It installs a recognition system in the consoles, and an encrypted code on the physical housing system of videogames, which has the effect of preventing the use of illegal copies of videogames. Those technological protection [DRM] measures prevent games without a code from being launched on Nintendo equipment and prevent programs, games and more generally, multimedia content other than Nintendo's, from being used on the consoles.

That means that DRM is preventing users from accessing non-Nintendo games and other works that they have lawfully acquired. One company affected by this is PC Box, which sells "homebrews" -- applications from independent manufacturers -- the use of which requires the installation of software that circumvents Nintendo's DRM. As was to be expected, Nintendo is not happy about that, and so the Milan District Court has been asked to adjudicate:

Nintendo considers that PC Box equipment seeks principally to circumvent the technological protection measures of its games. PC Box considers that Nintendo's purpose is to prevent use of independent software intended to enable movies, videos and MP3 files to be read on the consoles, although that software does not constitute an illegal copy of videogames.

Aware that this raised an important question of law, the Milan judges asked the Court of Justice of the European Union, the EU's highest court, to clarify how the European Directive on the harmonization of copyright applied in this case. The judgment has just been handed down; here's the key part:

The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation 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.

Having made those important general points, the Court of Justice of the European Union then goes on to instruct the Milan court to consider specific issues, such as whether Nintendo could use alternative forms of DRM that allow other programs to be run, and whether PC Box's software is mainly used for legal or illegal purposes.

As well as being an eminently sensible ruling, it's potentially hugely important, because it establishes that in principle DRM may be circumvented, depending on the circumstances. It's one that is likely to be greeted with howls from the copyright industry, since it cuts right across its view that DRM is sacred, and can never be circumvented in any situation. It's refreshing to see Europe's top court adopting a more nuanced approach to copyright that recognizes that users have important rights too, and that they should not be obliged to put up with what copyrightholders impose upon them if that is disproportionate in its knock-on effects.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: circumvention, consoles, copyright, drm, european court of justice, homebrews, mod chips, video games
Companies: nintendo, pc box

Nintendo Thrilled To Have Game Copy Devices Found Illegal In France

from the why-adapt-when-you-can-litigate dept

Earlier this week, Nintendo published a press release announcing that France has joined with several other nations in banning what it terms 'game copiers' (pdf and embedded below), by which it means mod chips. This news really comes as no surprise as console manufacturers have done a pretty good job of convincing politicians around the globe that such console modding devices have no legitimate use outside piracy.

While the ruling only deals with the importation and distribution of these devices, it has not stopped Nintendo from spreading FUD among game consumers regarding these devices. According to its anti-piracy faq on mod chips:

Are infringing devices such as game copiers for Nintendo Handheld systems or mod chips for Nintendo Wii console illegal in the U.S.?

Yes. Game copiers that are used to copy video game software without authorization onto any type of memory device or the hard drive of a personal computer are illegal. They enable the user to make, play and distribute illegal copies of video game software, which violates Nintendo's copyrights and trademarks. Mod chips are also designed to circumvent the copy-protection security system and deem the detection process inoperable, enabling the console to play pirated or illegal copies of Nintendo games downloaded from the Internet. Based upon the functions of these devices, they are illegal.

Sadly, this completely avoids the fact that such devices are capable and are used frequently to run software and games that are completely free and legal. This type of misdirection is abundant on that website. These devices do what Nintendo has failed to do -- open up the platform to a wider variety of software and games.

As for Nintendo, it's continuing its efforts to fight these modding devices rather than recognize and adapt to what the consumers of its devices want. With the introduction of the iPhone and Google's Android, consumers and developers are getting accustomed to (fairly) open marketplaces for apps and games. Yet, Nintendo is still holding strong to the idea that its platforms need to be locked down and any effort to open them up to the greater development community should be stamped out. Nintendo almost fell when it refused to adapt to changes in the market before. If Nintendo isn't careful, it could end up falling once again. Who knows if it will survive that fall?

Filed Under: france, game copy devices, mod chips
Companies: nintendo

UK Again Says That Mod Chipping Isn't Legal

from the you-bought-it,-but-you-don't-own-it dept

The war against actually being able to own the products you (thought you) bought continues. An appeal by a guy convicted for installing mod chips in video game consoles in the UK has been rejected. Even though the guy himself might not have been violating copyright law, apparently the fact that such mod chips could be used by others to potentially violate copyright law is enough to get him convicted. So, basically, modifying the hardware that you legally purchased? Not legal.

And... in somewhat related news, a bunch of folks have sent in the story of Microsoft cutting off what may be hundreds of thousands of players from Xbox Live for using modded consoles. Microsoft, obviously, is trying to stop players from cheating (one use of a modded console), which is understandable, and certainly within Microsoft's right. Still, the action does come across as a bit heavy handed. There are perfectly good reasons to mod a gaming console, such as to play unofficial games -- and as much as I understand the desire to stop people from cheating or playing pirated games, it still seems like you should be able to modify hardware that you legally purchased.

Filed Under: freedom to tinker, mod chips, uk, xbox
Companies: microsoft

Mod Chips Found Legal In The UK

from the mod-away dept

For many years, we've wondered why some folks considered the process of mod chipping to be illegal. After all, if you own a device, why shouldn't you be able to modify it? It's not illegal to modify your computer, so why would it be illegal to modify a game console? Well, thanks to the DMCA in the US, the question wasn't entirely clear -- because console makers use encryption, they consider any modification to be a circumvention of that encryption, and the DMCA has that pesky anti-circumvention clause. In the US, it's become even more bizarre, with federal officials taking up the cause and fining mod chippers while claiming (seriously) that mod chipping was a national security issue.

Luckily, it looks like the courts in Europe are a lot more reasonable about all of this. A few years back, we noted that an Italian court ruled that mod chips were perfectly legal (Update: Well, darn. As a commenter notes, the Italian decision was later overturned). And, now, a tipster alerts us to the news that a UK appeals court has found the same thing, tossing out all of the charges against a mod chip seller, noting that mod chips do not circumvent copy protection systems. Not only that, but the defendant was awarded legal fees. This is a big deal, as the lower court had found the guy, Neil Higgs, guilty for selling mod chips he had imported from Hong Kong. So, now that's Italy and the UK that recognizes modifying your gaming consoles shouldn't be illegal. Anyone else?

Filed Under: circumvention, copyright, dmca, mod chips, uk

Homeland Security Tries To Make Dubious Connection Between Mod Chippers And Money Laundering

from the don't-they-have-something-better-to-do? dept

We've written about the mod chip saga for years. Basically, mod chips let you change what a video game console can do. It's often used by people who want to play unauthorized games, but there are legitimate reasons to modify your video game system. Considering that it's a purchased item, you would think that the owner would have every right to tinker with it however they saw fit -- but you would be wrong. Buzz writes in to let us know that mod chips are back in the headlines as again as customs agents raided 32 homes and businesses to look for mod chips. It's not clear why the feds should get involved in what someone does to legally purchased hardware, but that's the world we live in these days. Thanks to the DMCA, having anything that can circumvent copy protection is illegal. The press release quotes from the Department of Homeland Security are really stepping into ridiculous territory, though: "These crimes cost legitimate businesses billions of dollars annually and facilitate multiple other layers of criminality, such as smuggling, software piracy and money laundering." That's right. First cite bogus claims about imaginary "losses" and then, to make it actually sound like a big deal, try to imply that it's involved in organized crime by saying it's associated with smuggling and money laundering. Of course, there wouldn't be any issue with "smuggling" if the law wasn't criminalizing modifying a product that you legitimately purchased.

Filed Under: dmca, freedom to tinker, game consoles, mod chips