## Facts

- Nintendo companies distributed videogame consoles (including Nintendo DS and Wii) and games protected by technological protection measures (TPMs).
- Nintendo’s TPM system combined recognition devices in the physical game medium (cards/discs) with recognition devices in the console, restricting use to authorized games.
- PC Box sold “mod chips” and “game copier” devices that bypassed Nintendo’s TPMs and enabled use of unauthorized game copies on Nintendo consoles.
- 9Net hosted the website through which PC Box marketed and sold the circumvention devices.
- PC Box contended its devices also enabled lawful, non-infringing uses (e.g., running independent software and playing lawful multimedia files) and that Nintendo’s TPMs restricted interoperability.
- An Italian court (Tribunale di Milano) referred questions to the Court of Justice of the European Union (CJEU) for interpretation of Directive 2001/29/EC (InfoSoc Directive), Article 6, in a preliminary ruling procedure.

## Issues

1. Whether “effective technological measures” under Article 6(3) of the InfoSoc Directive may include a protection system implemented both in the game medium and in the console hardware.
2. Whether and under what criteria devices designed to bypass such measures fall within Article 6(2)’s restrictions on circumvention devices.
3. Whether protection of TPMs requires a proportionality assessment that accounts for lawful uses and less restrictive alternatives providing comparable protection.

## Decision

- The CJEU ruled that “effective technological measures” can include systems that place recognition mechanisms both in the physical game medium and in consoles to control access and use.
- The CJEU held that legal protection against circumvention applies only to the extent necessary to protect against acts requiring rightholder authorization (e.g., reproduction, communication/making available, distribution).
- The CJEU directed that the national court must assess whether the TPMs are appropriate and proportionate, including whether less restrictive measures could provide comparable protection with less interference with third-party activities.
- The CJEU instructed that the national court must evaluate evidence of the circumvention devices’ actual uses, including the extent of non-infringing uses, when determining whether Article 6(2) applies.

## Legal Principles

- Videogames are complex multimedia works; although they include computer programs, their graphic and sound elements are protected as part of the whole under the InfoSoc Directive for purposes of TPM protection.
- “Technological measures” under Article 6(3) can include protection embedded in consoles, not only in the physical medium containing the protected work, if designed to prevent or restrict unauthorized acts.
- Anti-circumvention protection under Article 6 is justified only in relation to preventing unauthorized acts covered by the rightholder’s exclusive rights; it is not a freestanding right to block any interaction with hardware.
- Proportionality is central: national courts must consider less restrictive alternatives, costs, technical feasibility, and comparative effectiveness in protecting rightholder rights.
- Whether a circumvention device falls within Article 6(2) depends materially on evidence of its predominant use for infringement versus significant legitimate uses.

## Conclusion

The CJEU confirmed that integrated console-and-media TPM systems may receive legal protection, but enforcement against circumvention devices requires a fact-based national court assessment of proportionality, availability of less restrictive alternatives, and whether the devices are mainly used to enable unauthorized uses of protected works.


Nintendo Co. v. PC Box Srl, Case C-355/12 (C.J.E.U. 2014)