Millions of people worldwide frequently play video games. However many of those people play illegally copied games. In order for users to play a copied game, they must have their console ‘chipped'. This is usually done by inserting a device into your console that allows the copied games to be played. If you have ever used such a device, you have committed copyright infringement!
The judgment given in the very recent and landmark case of Nintendo Company Ltd & Anr –v- Playables Ltd & Anr (citation:  EWHC 1932 (Ch); 28 July 2010) has further prevented copyright infringement by effectively extending the scope of copyright law to cover those who facilitate copyright infringement. The facts of the case are as follows:
Nintendo owned copyright in the source code for the Nintendo DS boot-up software. Playables is a company that produced devices that could be inserted into the Nintendo console which had the effect of copying the boot-up software into the RAM. This allowed users to play unauthorised copies on the Nintendo DS games. Nintendo claimed their copyright was infringed when a user inserted the said device into the Nintendo console. Nintendo therefore sued Playables under the following provisions of the Copyright, Designs and Patents Act 1988:
- s 296ZD - The circumvention of ‘effective technological measures';
- s 296 - The circumvention of ‘technical devices'; and
- s 24 - Providing means for making infringing copies.
Under s 296ZD, a ‘technological measure' is any technology, device or component which is designed, in normal course of its operation, to protect a copyright work other than a computer program. Under the same provision, a technological measure is ‘effective' if it presents a physical barrier to copying, as opposed to merely discouraging, or acting as a general hinderance to, copying. The court found that the encryption and scrambling measures were ‘effective technological measures'.
Under s 296, a ‘technical device' is any device intended to prevent or restrict acts that are not authorised by the copyright owner of that program. The court found this defintion to be satisfied.
Under s 24, one is liable of secondary copyright infringement if they knowingly produce an article specifically designed or adapted for the making of infringing copies.
The court (and in particular Floyd J) held that the devices manufactured by Playables were ‘templates for infringement' and found the Defendant liable under all of the above provisions. The judgment of the case is significant as it means that other businesses that manufacture similar devices seeking to facilitate copyright infringement, will have no option but to cease trading, diversify within the law or turn to the black market. There are many other competing firms that will not want to cease trading despite the judgment. It follows that many will therefore continue to trade illegally. However, the attitude of the courts is making it increasingly difficult for copyright infringers to survive in the modern world we live in.
Paralegal at Virtuoso Legal