European Court rules in favour of platform holder, but that doesn’t make all modchips illegal.
Nintendo has successfully won a court battle against PC Box, an Italian retailer of devices it argued were designed to circumvent copyright measures. The victory may not, however, have the concrete and far-reaching implications it initially seems it could.
The Court of Justice of the European Union determined PC Box had been importing and selling game copiers and mod chip devices, which were deemed to be used primarily for the circumvention of copyright protection “to enable the playing of pirate games.”
In a statement, Nintendo said it is “pleased that this ruling is consistent with a long line of judicial precedents established at national courts in a number of Member States including Belgium, France, Germany, Netherlands, Spain, and the UK.”
“This decision is also entirely in line with several decisions from the Italian Supreme Court (Criminal Division) against sellers of circumvention devices as well as a recent ruling from the criminal appeal courts in Florence, which confirmed a first instance criminal decision, against the owners of PC Box.”
Historically, piracy on Nintendo’s handheld has been widespread, and enabled through devices such as flash cards. More recently, homebrew firmware–which doesn’t require special hardware–has opened up the 3DS, Wii, and Wii U to piracy. Some homebrew developers, however, have argued their intentions are not to enable piracy of game content, but to expand feature sets and options to use services other than those provided by Nintendo.
The court also ruled that Nintendo’s security measures “are fully proportionate and therefore protected under Italian copyright law.”
The CJEU is the chief judicial authority of the European Union and is charged with ensuring laws are interpreted and applied uniformly across member states. As a result, its decision could potentially be seen as setting a precedent for similar disputes in Europe, should they arise.
Speaking to GameSpot, lawyer Jas Purewal said, although the decision affirms that PC Box breached Italian and EU copyright law, it does not unilaterally make modchips illegal in all member states.
Instead, the judgement was a specific implementation of an EU level court decision made in 2014, when it was decided the main function of a modchip must be considered.
“The principle established in 2014 by Europe’s highest court, on which Nintendo and now the Italian court rely, is that modchips and similar technologies are not necessarily illegal,” he explained.
“It is how they are actually used–in particular whether they are primarily or only incidentally intended for homebrew/piracy/other unauthorised purposes–which is imported.”
He continued: “While this is undoubtedly a victory for Nintendo, it does not necessarily follow that all modchips will always be illegal in the European Union.”