A Reasonable Ruling: DRM Circumvention May Be Ok

A Reasonable Ruling: DRM Circumvention May Be Ok

The European Union Court of Justice has ruled against Nintendo recently, denying a ban on products which may be used to circumvent DRM measures.

DRM, the shorthand for Digital Rights Management, is an anti-piracy strategy implemented as either a hardware or software feature on a variety of products, including CDs, games consoles and Kindles, to name a few. Nintendo, the famous game and console powerhouse, has made a name for itself in the gaming world, protecting its copyright throughout the world. Notably this includes serving take-down notices on popular YouTube “Let’s Play” videos – a type of gaming journalism which uses screen recordings of games and provides a running commentary of the player’s experience. Although commonly viewed as fair use, if not great advertising for the games in question, Nintendo has a different tack and has been removing content wherever possible, citing copyright violations. However, when Nintendo attempted to sue PC Box – a Milanese company offering software used to circumvent Nintendo’s DRM in both the Wii and DS consoles – the motion fell in favour of PC Box.

“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,” the ruling stated.

Put simply: although it could be used for illegal activity and piracy, breaking the DRM itself is not a criminal act. Although the court has ruled it necessary to look into the purpose of using anti-DRM measures to determine whether or not the majority of users are purchasing the product in order to commit criminal acts, there is no evidence to currently suggest anything illegal is happening, and the products will not be banned.

Although proponents of piracy and copyright reform may see this as a win, Nintendo appears to have its blinkers on. In a press statement released in response to the ruling, the company assured the world that “Nintendo is confident that the application of the guidance set out by the CJEU relating to proportionality will enable the Milan Tribunal to determine that the sale of circumvention devices is unlawful.”

This may turn out to be one small step for pirates, one giant back pedal for the CJEU – proponents on both sides of the copyright debate will just have to watch this space.

Sephy Hallow

About the author:

Sephy Hallow is the Deputy Leader of Pirate Party UK, having been elected to the newly created post in December 2013.

She is a freelance writer and author, with a passion for fixing copyright to work for content creators, rather than against them.

Featured image: CC BY-NC-SA  paulasofiasimoes