Content developers are always looking for new ways to protect their creations by preventing illegal copying. Meanwhile, pirates are equally on the look out for ways to circumvent that protection. A recent court case brought by Nintendo is one battle in the ongoing war.
Mod chips are hardware devices that circumvent certain content protection measures and the basic question at issue here is: is it illegal to sell mod chips?
Nintendo employs technology on its Wii and DS consoles that only permits content authorized by Nintendo to be used on such devices. The defendant PC Box sells mod chips which disable that technology. Nintendo would very much like to stop the sale of such chips as people certainly do use them to play illegally-copied content. On the other hand, PC Box argues that the content protection system goes too far in locking down the console and not permitting other software to be run. Thus the mod chips have perfectly legal uses, such as enabling the console to be used for other legally obtained software, albeit not authorised by Nintendo. For example "homebrew" software for playing your legally obtained DVDs or MP3s. Therefore the mod chips helpfully expand the legal uses of the console. It just so happens that they also facilitate certain illegal uses.
European law aims to provide some protection to rights holders against the circumvention of content protection measures. In particular in the form of Council Directive 2001/29.
The story so far in the Nintendo v PC Box case has resulted in a question of interpretation of this law being passed up to the Court of Justice of the European Union (CJEU) regarding to what extent content protection measures are protected.
The answer is that it depends on whether the content protection system could have been effectively implemented in a less restrictive fashion, i.e. could they have achieved the goal of preventing unlawful uses without unnecessarily restricting lawful uses. An assessment of this should take into account not just the effectiveness of the system (and alternatives), but also the costs and technical and practical aspects of implementation, says the Court.
Interestingly, the court also says that the analysis of the extent of protection should take into account evidence of actual use of the circumvention device. Unfortunately for PC Box this is something they have little control over. How many people use their mod chips for legal activities and how many for illegal activities? Place your bets now ...
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