The R4 Ban: What Does It Mean?

Section 296 ZD

This section deals with the protection applied to copyright works other than computer programmes. It does not have a knowledge requirement like section 296. This meant that Nintendo needed to prove that:

• there were technological measures, that had been applied to a copyright work and that they are effective (hence ETM); and
• the defendants manufactured, imported, distributed, sold, etc, a device product or component which circumvented the ETM, have little other purpose or use other than to circumvent the ETM, or primarily designed to circumvent the ETM.

An earlier case of Sony versus Ball has established that this section of the Act creates strict liability which means if the devices were used or had little other purpose but to make infringing copies then it was a breach.

Notwithstanding this, the defendants argued that they did not know or had any reason to believe that these devices would be used to make infringing copies and in any event said there are lawful uses for the devices outside of downloading illegal games. They argued that players might make their own games and use this technology as a way to play them. Once again, Justice Floyd disagreed and said the defences did not have any "realistic prospect of success".

Expanded Jurisdiction

The defendants were not only selling these within the UK but exported them as well. Here is where Justice Floyd expands on previous law and found that devices which were exported outside the UK also infringed section 296 ZD.

Justice Floyd said that section 296 ZD is concerned with dealings in the United Kingdom in devices capable of circumvention, distinguishing it from actual circumvention. He confirmed that circumvention need not occur, just the device needed to be capable of circumvention in the United Kingdom. On that basis he departed from the earlier case of Sony versus Ball and granted Nintendo summary judgment on export sales as well as sales within the United Kingdom. This means Nintendo will have a greater damages calculation.

Ordinary Copyright

Not being satisfied with just pursuing the defendants on the anti-circumvention parts of the Act, Nintendo brought a good old-fashioned copyright action claiming that the source code was an original computer program (a literary work according to the Act) and the NLDF (Nintendo Logo Data File which permits the DS to run the game) was either in a literary work or an original artistic work and these were all infringed. Nintendo did not say that the defendants directly infringed its copyright but rather that they authorised others to infringe Nintendo's copyright. Nintendo, however, only won on the NLDF authorisation point with the Judge calling the devices "templates for infringement".

So What?

So what does all this mean? Not much really. Well, to be fair it meant a lot to Nintendo. This case was about summary judgment which is being so certain that you are right and the defendants so wrong, you ask for judgment without the bother of a trial. The fact that Nintendo went to the trouble to fully prosecute aspects of a case which had been partially settled suggests they had a point to prove and were certainly successful in doing that.

It is unlikely that it will have a detrimental impact on this trade in illegal devices except of course if you are in a similar position to the defendants in this case and have 'sales' at such a level to attract the attention of the gaming companies. That may be pause for thought.

For the rest of us it provides interesting fodder for debating the issue of gaming companies wanting to protect their investment in intellectual property and some people who, for whatever reason, disagree with that.