The Court of Justice of the European Union has now decided that it’s okay to circumvent the software protecting a console from being cracked wide open is ok, as long as you’re not using it to play pirated games. Essentially, they’ve determined that homebrew is find and dandy.
It all came about because Nintendo’s been trying to stop a retailer from selling software and systems that bypass the copy protection on the DS and Wii that allows users to do things like watch movies, play MP3’s and other things you’d rightly expect any modern system to do. (The PlayStation 4, curiously, currently allows none of that). Nintendo argues that those countermeasures allow “the illegal use of videogames.”
PC Box, naturally, disputes this claim, saying that Nintendo are bullies who "prevent use of independent software, which does not constitute an illegal copy of video games, but which is intended to enable MP3 files, movies and videos to be read on consoles, in order to fully use those consoles."
Doesn’t matter though, because the courts have decided to side with PC Box. In principle, as a one-time homebrew aficionado I stand by this, and love the idea of hacking a console to increase its capabilities; the problem is when those capabilities include wanton piracy of games; a very stark reality for both of the systems mentioned. The DS and the Wii are frightfully easy to hack, and playing copied games on them is beyond easy.
The court states that "the legal protection covers only the technological measures intended to prevent or eliminate unauthorized acts of reproduction, communication, public offer or distribution."
Nintendo, however, will "continue to fully engage with the Milan Tribunal, from whom the reference to the CJEU arose, in order to allow it to reach a considered reasoned decision in the civil case between Nintendo and PC Box
"Furthermore, 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," the statement reads.
"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."
A similar case happened in the US with regards to Apple’s Idevices and Jailbreakers, where it was determined that jailbreaking was completely legal.
Last Updated: January 24, 2014