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.

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


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  1. icon
    jilocasin (profile), 23 Jan 2014 @ 11:38am

    Re: Why is DRM legal at all?

    Well there is a big difference between a private business and the government. The former can try to restrain you all it likes (prior or not) and the government is restricted by that pesky little "First Amendment" thing. At least they are supposed to be in the U.S.

    Companies like Nintendo, Sony, et. al. can design all the restrictions they want into their products. The problem becomes when they use the power of the government to prevent you from doing what you want with what you've bought.

    Without government coercion you would be able to copy whatever you wanted, share whatever you wanted, and work around any issues (break DRM) that prevent that. The problems are:

    1. Government granted monopoly, copyright, that's supposed to limit your rights, for a limited time, in select cases, as an encouragement to produce more works for everyone. It's been extended, including retroactively, effectively forever. The limited rights restricted rights and broad exceptions have been reversed in practice. The copyright holder now has broad rights and the public increasingly limited exceptions.

    2. Government enforced DRM. With the passage of the DMCA and the infamous anti-circumvention provision, copyright holders can use the government to force you to accept whatever ham handed attempt to limit your use of copyrighted material they want to try. It's gotten so out of hand that it's being applied to completely unrelated things. In this case Nintendo doesn't let you run non-Nintendo approved software/media on your console. If you try to fix that you've broken the law (at least in the U.S., maybe not now in Europe). Sony can prevent you from running an alternative OS on your PS3. DVD manufacturers can be prevented from building DVD players that let you skip warnings and ads, and it's illegal if you want to fix that problem yourself. Printer makers can prevent you from using off brand ink cartridges and garage door manufacturers work to keep you from using an unapproved door opener.

    The problem isn't 'prior restraint', that doesn't apply to non-government actors. The problem is that the government makes it illegal to do perfectly legal things. Get rid of copyright or at least anti-circumvention restrictions and let the market work it out. Companies that insist in DRM will lose out to those that don't, or find their DRM quickly broken.

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