The European Court of Justice dealt an ambiguous blow to Nintendo's crusade against homebrew today. Tenuously ruling in favor of homebrewers across Europe, the court found that, "Circumventing a protection system of a games console may, in certain circumstances, be lawful." Nintendo sued Italian retailer PC Box in Milan's District Court over their practice of selling modified DS and Wii systems to bypass built-in encryption. The Italian retailer fought back, claiming that DS and Wii owners should be allowed to access other content on the consoles as long as Nintendo's copyrighted material remains unaffected.
The Milan court asked the ECJ to clarify the extent of the EU's copyright laws and how much protection Nintendo is granted. The court sided with PC Box, noting that outside of measures explicitly intended to thwart piracy, a console owner could run whatever software or media they want. While this may seem like a huge victory for homebrewers, the case isn't closed yet. Europe's high court announced their decision only as a reference, directing the Milan Tribunal to look into other methods Nintendo could use to protect their rights without getting in the way of third parties from trying to run legal software. Also on the table is what people do with modded consoles they buy from PC Box.
Nintendo, surprisingly, is pleased with the high court's decision, citing that the ruling is consistent with their opinions in a press release today. The company also pointed to other victories throughout Europe, such as the UK and Belgium, in its statement and hopes that Italy will agree with other member nations of the European Union by ruling in Nintendo's favor.
"Nintendo 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 utilises 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."
Don't break out the champagne just yet, homebrew fans. While this is a step forward, you may wind up taking two steps back by the time all is said and done.