Europe's Highest Court Says DRM Circumvention May Be Lawful In Certain Circumstances

from the this-could-be-big dept

One of the many problems with DRM is its blanket nature. As well as locking down the work in question, it often causes all kinds of other, perfectly legal activities to be blocked as well — something that the copyright industry seems quite untroubled by. Here’s an example from Europe involving Nintendo (pdf):

Nintendo markets two types of systems for videogames: ‘DS’ portable consoles and ‘Wii’ fixed consoles. It installs a recognition system in the consoles, and an encrypted code on the physical housing system of videogames, which has the effect of preventing the use of illegal copies of videogames. Those technological protection [DRM] measures prevent games without a code from being launched on Nintendo equipment and prevent programs, games and more generally, multimedia content other than Nintendo’s, from being used on the consoles.

That means that DRM is preventing users from accessing non-Nintendo games and other works that they have lawfully acquired. One company affected by this is PC Box, which sells “homebrews” — applications from independent manufacturers — the use of which requires the installation of software that circumvents Nintendo’s DRM. As was to be expected, Nintendo is not happy about that, and so the Milan District Court has been asked to adjudicate:

Nintendo considers that PC Box equipment seeks principally to circumvent the technological protection measures of its games. PC Box considers that Nintendo’s purpose is to prevent use of independent software intended to enable movies, videos and MP3 files to be read on the consoles, although that software does not constitute an illegal copy of videogames.

Aware that this raised an important question of law, the Milan judges asked the Court of Justice of the European Union, the EU’s highest court, to clarify how the European Directive on the harmonization of copyright applied in this case. The judgment has just been handed down; here’s the key part:

The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation from the copyrightholder is required. That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection for unlawful purposes.

The Court of Justice notes that the scope of legal protection of technical measures must not be assessed according to the use of consoles defined by the holder of copyright, but that rather it is necessary to examine the purpose of devices provided for the circumvention of protection measures, taking account, according to the circumstances at issue, of the use which third parties actually make of them.

Having made those important general points, the Court of Justice of the European Union then goes on to instruct the Milan court to consider specific issues, such as whether Nintendo could use alternative forms of DRM that allow other programs to be run, and whether PC Box’s software is mainly used for legal or illegal purposes.

As well as being an eminently sensible ruling, it’s potentially hugely important, because it establishes that in principle DRM may be circumvented, depending on the circumstances. It’s one that is likely to be greeted with howls from the copyright industry, since it cuts right across its view that DRM is sacred, and can never be circumvented in any situation. It’s refreshing to see Europe’s top court adopting a more nuanced approach to copyright that recognizes that users have important rights too, and that they should not be obliged to put up with what copyrightholders impose upon them if that is disproportionate in its knock-on effects.

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Companies: nintendo, pc box

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Comments on “Europe's Highest Court Says DRM Circumvention May Be Lawful In Certain Circumstances”

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Christopher Best (profile) says:

"Mainly used for legal or illegal purposes"

Is that how they phrased it? If so, I’m disappointed. The Betamax decision was so important because they phrased it as “Has substantial non-infringing uses.” They recognized the primary use of home recording equipment at that point WAS illegal, but that there was a huge potential there for legal use… Phrasing it so that the decision is based on how it’s used TODAY would shut down a lot of innovation…

jilocasin (profile) says:

Re: "Mainly used for legal or illegal purposes"

I think you may be reading to much into that phase seeing a restriction where there isn’t one.

An alternative reading would be that …illegal purposes… mean on that would be found to infringe copyright. This interpretation would place it in the same category as the Betamax ruling. Making Fair Use of a copyrighted work (such as home taping with the then new video recorder), is by definition a legal use. In the same vain Fair Dealing wouldn’t be illegal and hence permitted by this ruling.

Just because the MPAA/RIAA doesn’t recognize Fair Use/Fair Dealing doesn’t mean it doesn’t exist. In fact the court has explicitly recognized the right to break DRM for legal uses. This means, if it’s upheld, that it’s legal to break DRM in Europe that the DMCA makes illegal to break in the U.S.

ysth (profile) says:

Re: Re: "Mainly used for legal or illegal purposes"

I don’t think that was seeing a restriction where there isn’t one. “Mainly used for legal purposes” is a very much higher bar than “has substantial non-infringing uses”.

Case in point: my daughter is a freshman in a private US college; their terms for connecting to their network are that no bittorrent software may even be installed on the student’s computer, something violated by her laptop with a vanilla Ubuntu installation. Doesn’t matter that there are legitimate uses for bittorrent; what matters is what they expect a majority of student use to be. This is clearly overreach.

Sheogorath (profile) says:

Re: Re: Lawful circumvention is lawful. Illegal as in piratage still illegal.

Not all uses of copyrighted material require permission.
Well, they should. Why do you think we protect our movies and music with Digital Rights Management so you can’t even play them without our permission? And the fact you have to repurchase the tracks if Microsoft’s hardware goes bye-bye is just a sweet side effect that means we… I mean, the artists get properly compensated.
at this point, Father Merrin successfully exorcises the MAFIAA from Sheogorath, albeit only after he projectile vomits bile all over the priest

BernardoVerda says:

Re: Re: Lawful circumvention is lawful. Illegal as in piratage still illegal.

Just to clarify a couple of points:

> 1. Pirates don’t usually care about artists, unless they happen to be on board the ship they’ve targeted.

> 2. Not all uses of copyrighted material require permission.

So, aside from whether they’ll recognize legitimate fair use, or not, there’s little real difference between “pirates” and “studios”, then?

Rikuo (profile) says:

Re: Lawful circumvention is lawful. Illegal as in piratage still illegal.

“Pirates: next time you wish to “share”, just email the artist and see if you can get permission…”

I’m pretty sure then that if this actually happened, and all copyright infringers everywhere emailed the artist for permission, the artist would just love you blue. Because now they have to sit chained to their computer all day every day, answering yes or no to tens of millions of fans.
I suggest you look up two words: Logic and Consequences. Try learning what they mean. There’s a reason why no-one tries your quote.

BernardoVerda says:

Re: Re: Lawful circumvention is lawful. Illegal as in piratage still illegal.

The first time I “pirated” a creative work (just a couple of years ago, despite using computers since Win ’95 days) was because the work I wanted

a) was for sale,
b) but only in “digital” form,
c) Amazon, and other vendors, would not sell to me because I am outside the USA,
d) I couldn’t find another “legal” source,
e) I even tried the artist’s own website, but it wasn’t even mentioned or linked, there (hmmmm… I think I know what that means),

So I searched for a torrent, and quickly found a high quality file, lovingly converted from the original vinyl by a fan. I found it, downloaded it, and burned it to disk, all in far, far less time then I’d wasted trying to acquire a “legal” copy.

I really would have preferred a “conventional”, store-bought disk. But the recipient (it was a birthday gift) absolutely loved it anyways — it was just the perfect gift for this person. (And hey, I saved at least $15.95)

And based on my investigation, I’m pretty sure the artist doesn’t give a damn — None of her work from back then is even mentioned, let alone sold, on her website. So though I had thought of it, I wasn’t going to waste her time “getting permission”.

Karl (profile) says:

Re: Lawful circumvention is lawful. Illegal as in piratage still illegal.

Lawful circumvention is lawful. Illegal as in piratage still illegal.

In fact, neither is true, and it shows how wrong your thinking is on copyright.

In the U.S., there is no “lawful circumvention.” The DMCA makes all DRM circumvention unlawful, whether that circumvention is used for copyright infringement or not.

“Piratage” isn’t a word, but if you mean “consuming media for free,” then there are plenty of cases where it’s legal. Libraries, free radio and TV, CC works, GNU software, etc.

In fact, “illegal piracy” is a redundancy, because if it’s not illegal, it’s not piracy. As an example, merely viewing or listening to pirated content is not piracy. And, so far as I know, buying and owning a counterfeit DVD or bootleg record is not piracy either (copying or selling them is).

John Fenderson (profile) says:

Re: Re: Lawful circumvention is lawful. Illegal as in piratage still illegal.

The DMCA makes all DRM circumvention unlawful, whether that circumvention is used for copyright infringement or not.

This is mostly, but not entirely true. The Library of Congress can grant exceptions that expire after three years. They are extremely sparing in this exercising this power, but it’s why you could legally unlock your phone for a while, for example.

Mason Wheeler (profile) says:

Why is DRM legal at all?

DRM does not “[have] the effect of preventing the use of illegal copies of videogames”; it has the effect of preventing the use of videogames that the DRM does not find to be legal. There’s a huge difference there, and it flies in the face of our most sacred legal principles.

If a government agent prevented someone from engaging in a non-violent act of entertainment because he believed it was probably illegal, you’d better believe that it would be all over the news. That’s called “prior restraint,” and it’s a blatant violation of basic first amendment rights. It also violates the doctrine of presumption of innocence, also known as “innocent until proven guilty.”

So why do we let entertainment companies get away with it? Why is DRM legal at all, under any circumstances, when its only functionality is prior restraint, which ought to be inherently offensive to anyone who thinks about it for even a few seconds?

Why has nobody taken a look at this from a rational perspective and said to these criminals, “piracy is your problem; it is not my problem and you have zero right to try to make it my problem unless and until you can prove in a court of law that I am part of the problem”?

jilocasin (profile) says:

Re: Why is DRM legal at all?

Well there is a big difference between a private business and the government. The former can try to restrain you all it likes (prior or not) and the government is restricted by that pesky little “First Amendment” thing. At least they are supposed to be in the U.S.

Companies like Nintendo, Sony, et. al. can design all the restrictions they want into their products. The problem becomes when they use the power of the government to prevent you from doing what you want with what you’ve bought.

Without government coercion you would be able to copy whatever you wanted, share whatever you wanted, and work around any issues (break DRM) that prevent that. The problems are:

1. Government granted monopoly, copyright, that’s supposed to limit your rights, for a limited time, in select cases, as an encouragement to produce more works for everyone. It’s been extended, including retroactively, effectively forever. The limited rights restricted rights and broad exceptions have been reversed in practice. The copyright holder now has broad rights and the public increasingly limited exceptions.

2. Government enforced DRM. With the passage of the DMCA and the infamous anti-circumvention provision, copyright holders can use the government to force you to accept whatever ham handed attempt to limit your use of copyrighted material they want to try. It’s gotten so out of hand that it’s being applied to completely unrelated things. In this case Nintendo doesn’t let you run non-Nintendo approved software/media on your console. If you try to fix that you’ve broken the law (at least in the U.S., maybe not now in Europe). Sony can prevent you from running an alternative OS on your PS3. DVD manufacturers can be prevented from building DVD players that let you skip warnings and ads, and it’s illegal if you want to fix that problem yourself. Printer makers can prevent you from using off brand ink cartridges and garage door manufacturers work to keep you from using an unapproved door opener.

The problem isn’t ‘prior restraint’, that doesn’t apply to non-government actors. The problem is that the government makes it illegal to do perfectly legal things. Get rid of copyright or at least anti-circumvention restrictions and let the market work it out. Companies that insist in DRM will lose out to those that don’t, or find their DRM quickly broken.

Mason Wheeler (profile) says:

Re: Re: Why is DRM legal at all?

Seriously? We have the entirety of the last thirty years as a testament to the abject failure of “the market” to do anything about social problems created by market actors except make them worse, culminating in the crash of 2008 and the recession that, loudly-repeated official claims notwithstanding, is clearly not getting any better five years later. Why is anyone still buying that ridiculous line of propaganda?

jilocasin (profile) says:

Re: Re: Re: Why is DRM legal at all?


First; we aren’t (at least I’m not) talking about social problems (poverty, lack of health care, clean air & water, enough food to eat, etc.).

Second; if you honestly think we’ve have anything even remotely resembling a free market in the U.S. for the last xx years, you haven’t been paying attention.

In this specific case the problem is the government. The governmented grant of copyright, the governmented prohibition on circumventing DRM.

In general, if the government defends the rights of the citizens against businesses (and itself) it does good. It is when it abuses the citizenry for the benefit of businesses (or itself) that people suffer.

Mason Wheeler (profile) says:

Re: Re: Re:2 Why is DRM legal at all?

First, you don’t see lack of free access to information, in the Information Age, as a social problem? I certainly do!

Second, “a free market” is a term that’s been politicized into meaninglessness, and I really have no intention of debating it with you. What I do think we’ve had, because I’ve been paying attention, is a highly deregulated market in which government has made minimal if any effort to rein in the abusive actions of the largest players. And you can see where that got us.

Third, in this specific case the problem is the people who use DRM. If the government were to come up with legal protection for burglary, would you absolve the actual burglars and say that the real problem is the government, even if no one from the government was breaking into your house? DRM is inherently offensive and abusive in nature, independent of the status assigned to it by any legal body.

Pragmatic says:

Re: Re: Re:3 Why is DRM legal at all?

Uh, guys? You’re both broadly in agreement with each other, just not using the same words.

When jilocasin speaks of the market, the “free market” isn’t being brought into it, and the reference is to market forces, e.g supply and demand.

Letting market forces decide what sells or doesn’t is reasonable. Creating artificial scarcities and using legislation to lock them down only serves to screw the consumer by restricting competition to those who purchase licences to compete… when they can get them.

I think the problem was caused by the use of the word “government.” We at TD distrust big L libertarians because they tend to have a huge blind spot where corporate misbehavior is concerned.

When anyone mentions “government” and “force” in the same sentence, it sounds like we’re dealing with one of those “Deregulate all the things!” people, whose ideology has historically proven to be economically destructive.

In general, if the government defends the rights of the citizens against businesses (and itself) it does good. It is when it abuses the citizenry for the benefit of businesses (or itself) that people suffer.

This comment puts all three of us on the same page.

Anonymous Coward says:

as is the case with the sony consoles. circumventing the drm on those has been stopped, including being qable to run a different operating system on them, as was the main reason a lot of people bought them in the first place. it was the ridiculous ruling here in the USA that made it perfectly legal for sony to remove that option, just to protect it’s own business, while having no thought or consequence for independent developers.
then consider how many times drm has done absolutely nothing to enhance ‘the user experience’ as it is often claimed to do and then done the exact opposite, making a game, for example, impossible to play and extra content impossible to download. and dont forget that it the majority of cases, it is circumvented, sooner or later, anyway.

Sheogorath (profile) says:

Re: Re:

Hopefully, they consider circumventing region locking a legal practice so we can play foreign games on Nintendo consoles without being labeled a pirate.
Should be fine under this ruling. Playing legally purchased media can (should) never be seen as an infringement of any ‘rights’-based monopoly, no matter which market you bought it in.

Sheogorath (profile) says:

Re: Re:

Look what a disaster that’s been for the computer industry…
Yeah, a complete disaster. I’m sure everyone remembers how last June Micro$##t filed for Chapter 11 bankruptcy because Linux pushed them from the marketplace by killing ₩inblows H8. How can governments continue to claim that competition is healthy after such occurences? 😉

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