Everdrive units also breach
ss 296ZD and 296 of the Copyright, Designs and Patents Act 1988 as they circumvent the ETM [effective technological measures within the meaning of s 296ZD].
I think the ruling was just against Nintendo DS carts, I don't know if it includes "games copiers" in general.
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1932.html
Just to throw some sense onto this,
The ruling was in regard to the use of Nintendo's own Proprietary code being used to circumvent Nintendo's own security measure.
Nintendo's use of section 296D
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1932.html said:
In the Particulars of Claim, Nintendo asserts claims under the circumvention of copy-protection provisions, namely section 296ZD and section 296 of the Copyright Designs and Patents Act 1988 ("the Act"). In addition they assert "normal" copyright infringement (by authorisation) in respect of some copyright works transiently copied into the random access memory in the course of use of the defendants' devices. Claims for infringement of Community trade marks which are made in the Particulars of Claim are accepted to be unsuitable for summary judgement, and were not pursued on this application.
Please see Section 296ZD ( copyrights and patents act of 1988 )
Please note that this circumvention (and the lynch pin of the ruling) was achieved because these adapters used of Nintendo's own code, that was under copyright.
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1932.html said:
- The accused devices also contain circuitry, software and data (including a copy of the NLDF) which enable them to pass the tests performed by the Nintendo DS to verify that the game card inserted is genuine. In this way, the accused devices enable unlawful copies of Nintendo games to be played successfully on the Nintendo DS, as well as other material. The evidence establishes that when a game is played, substantial parts of the game code are loaded into the RAM of the Nintendo DS console.
Nintendo's case under section 296ZD
The report of the case continues with reasoning under section 296 requesting proof of
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1932.html said:
- Mr Howe submits, and I accept, that a claimant relying upon the rights afforded by s.296ZD needs to show the following things:
(a) In relation to ETM:
(i) that there are "technological measures";
(ii) that they have been "applied" to a copyright work or works (other than a computer program); and
(iii) that they are "effective".
(b) that the defendant has manufactured, imported, distributed, sold etc, a "device, product or component" or provided services which:
(i) are promoted, advertised or marketed for the purpose of the circumvention of the ETM;
(ii) have only a limited commercially significant purpose or use other than to circumvent the ETM; or
(iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of the ETM.
Now the Megadrive has never had any EMT measures, if they did then EA would be in serious trouble since they produced and distributed their own products for the Mega-Drive without any royalty to Saga.
While the SNES had a lockout chip mechanism it is far from "effective" and can be circumvented with a simple switch.
The same could be said with the Turbo Graphics as well as the Game Gear and a lot of other devices from the eighties to early 90's.
Finally, the other point in Nintendo's case was the use of section 296F
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1932.html said:
"Technological measures shall be deemed 'effective' where the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective."
Again, the rights holders "Nintendo" implemented an encryption / scrambling mechanism that is controlled by their proprietary code.
icard
That R4 case shouldnt have even gone to proceedings.
