The R4 Ban: What Does It Mean?

There is nothing like one of the major gaming companies being involved in a law suit to start a debate on protecting intellectual property rights. In court cases where the gaming company wins, the debate escalates and polarises opinions to extremes. This was drawn out in last week's coverage of the Nintendo versus Playables case where Mr Justice Floyd decided not only had Playables infringed Nintendo's copyright, it had circumvented its effective technology measures ("ETM"). Justice Floyd also granted judgment to Nintendo in this case on export sales which had not been previously allowed in similar. He found that Playables' exporting the devices was also an infringement.

This Nintendo case contained some esoteric legal points which excite lawyers. However, the practical consequences of this case are not as far reaching to most of the gaming community. In fact, the only people who might be worried are those inside the United Kingdom who are dealing in gaming company security measure circumvention.

We all know that if someone wants these devices, they are most likely available from someone in your local pub or via the internet from outside the United Kingdom. This case is not going to stop that aspect and that is something the gaming companies continue to deal with. All this case has done is slightly expanded the damages which a gaming company can claim.

Possibly, if the gaming companies keep chipping away (pardon the pun) at these cases, they may keep getting more expansive remedies and perhaps over time copyright infringers or people who provide circumvention devices might truly be concerned about the consequences. Or maybe not. As it stands, there is not any disincentive to stop breaching copyright or circumventing ETM. If there were it would not be so prevalent.

Let's look at what this case actually did and what the Judge said.

What happened?

Nintendo attacked two defendants, Playables Limited and Wai Dat Chan, on two grounds. One is that the defendants infringed Nintendo's copyright and second that they circumvented ETM. The defendants imported and dealt with a device which when connected to a Nintendo DS game console could itself have a micro SD card inserted which contained illegal downloads of Nintendo games.

The first limb of this claim regarding circumvention of copy protection was covered by sections 296 and 296 ZD of the Copyright Designs and Patents Act 1988 ("Act").

Section 296

Section 296 deals with anti-circumvention devices that have been applied to computer programs. There is a knowledge requirement in the person dealing in the devices must know or have reason to believe the device will be used to make infringing copies.

Under section 296 of the Act, Nintendo had to prove that:

• there was a "technical device" which had been applied to a computer programme; and
• that the defendants had manufactured, imported, distributed, sold, etc, with the sole purpose of which is to still take the unauthorised removal or circumvention of a technical device; and
• knew or had reason to believe it would be used to make infringing copies.

It was relatively straight forward for Nintendo to establish that. However the defendants said that they did not know of or had no reason to believe that the devices would be used to make infringing copies. This is also the altruistic "we had no idea that people buying these devices would be naughty with them, honest 'guv" defence. The Judge disagreed with the defendants and said "I do not think that the defendants have a realistic prospect of asserting that they did not know of the unlawful uses to which the devices would be put". With that Nintendo won this point under section 296.