Nintendo has won a court ruling against PC Box, an Italian company that distributed devices to circumvent the technical protection measures (TPM) of the Wii U and DS, allowing for the use of homebrew software. The ruling states that circumvention devices like the game copiers and modchip devices PC Box distributed are in fact primarily used to play pirated games, thus breaking European copyright law.
The ruling marks a dramatic turnaround in the case against Milan-based PC Box, which won an early victory from the Court of Justice of the European Union (CJEU) back in 2014. At the time, the First Instance Tribunal of Milan sought clarification from the CJEU on the extent of the legal protection given to TPMs under the Information Society Directive. Specifically, it asked whether national courts should take into account legitimate uses for circumvention devices—playback of audio and video files, for example—and if protection measures overruled that usage.
The CJEU’s preliminary ruling (PDF) seemed to rule in favour of PC Box. It noted that, while the technological protection measures attached to copyrighted works can be rightfully implemented in software (games) and hardware (the console), that protection must be proportional and not prohibit activities which have a “commercially significant purpose” or use other than to circumvent copy protection. Essentially, PC Box’s tech wasn’t unlawful, because because the content it enabled wasn’t itself unlawful.
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