Small victory for homebrew software in Europe ⊟
The Court of Justice of the European Union has ruled that it’s legal to circumvent encryption systems on your video game console, so long as you’re not doing it to play pirated games. So if you were to use unauthorized devices to run media programs or homebrew games, you won’t be breaking the law.
This issue came up in a lawsuit between Nintendo and Italian retailer PC Box, the latter of which had been bundling DSes and Wiis with devices that bypassed the consoles’ encryption security. PC Box was able to successfully argue that those devices enabled users to run unauthorized software (e.g. MoonShell media player, Homebrew Channel).
Courthouse News Service noted:
European law expressly permits right holders to use technology to protect their copyrighted material ‘without preventing the normal operation of electronic equipment and its technological development.’
The Luxembourg-based high court acknowledged Thursday that Nintendo has right to copy-protect its games but said the company 'must not go beyond what is necessary for this purpose.’
To determine that, the Italian court must look at whether encryption codes installed on both consoles and games is overkill by Nintendo, according to the ruling.“
That doesn’t mean PC Box is off the hook, as a court in Milan will now investigate how often the retailer’s customers used their bundled devices to run bootlegged games versus homebrew software. It will also look at how often the devices in question are used for piracy purposes versus homebrew apps/games.
Nintendo responded to the ruling in a statement:
"Since Nintendo only ever utilizes technological protection measures which are both necessary and proportionate to prevent widespread piracy of its intellectual property, and since the preponderant purpose of the circumvention devices marketed by PC Box is to enable piracy of legitimate video games, 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.”
“In the meantime, Nintendo maintains that the commercial dealings in circumvention devices infringe copyright laws as well as other intellectual property laws and Nintendo will continue to pursue those involved in the distribution of such devices.”
This ruling comes shortly after a hacker demonstrated progress in running homebrew software on Nintendo 3DSes (and a week after someone else shared instructions for a risky way to play games from other regions), which hasn’t been possible for most system owners due to the handheld’s aggressive anti-piracy protections.
However, flashcard manufacturers and piracy advocates have kept up the pace with their own developments on the 3DS, recently showing off new capabilities for running multiple bootlegged games on a flashcard.
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