Every person knows about counterfeit and copied games, but do you know how the makers of personal computer games really safeguard their copyright? Or how making use of a copied game can mean the player of the games is really infringing the rights of firms such as Sony and Nintendo?

Millions of men and women worldwide often play video games. Even so a lot of of those men and women play illegally copied games. In order for users to play a copied game, they must have their console ‘chipped’. This is normally completed by inserting a device into your console that enables the copied games to be played. If you have ever used such a device, you have committed copyright infringement!

The judgment given in the extremely recent and landmark case of Nintendo Company Ltd &amp Anr –v- Playables Ltd &amp Anr (citation: [2010] EWHC 1932 (Ch) 28 July 2010) has further prevented copyright infringement by efficiently 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 business that produced devices that could be inserted into the Nintendo console which had the impact 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 consequently 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 typical course of its operation, to protect a copyright function other than a laptop or 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 had been ‘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 discovered this defintion to be satisfied. 

Under s 24, one is liable of secondary copyright infringement if they knowingly produce an article particularly created or adapted for the generating of infringing copies. 

The court (and in certain Floyd J) held that the devices manufactured by Playables had been ‘templates for infringement’ and discovered the Defendant liable under all of the above provisions. The judgment of the case is substantial as it means that other companies 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 marketplace. There are many other competing firms that will not want to cease trading regardless of the judgment. It follows that a lot of will therefore continue to trade illegally. Nonetheless, the attitude of the courts is generating it increasingly tough for copyright infringers to survive in the contemporary world we live in. 

By 

Lewis Round 

Paralegal at Virtuoso Legal

Copyright Law