It’s game over at level 1 for Nintendo DS mod chip importer – Nintendo v Playables and Chan, High Court

Nintendo has obtained summary judgment in its claim against the importer of a mod chip product that circumvented Nintendo’s technological copy-protection measures intended to stop unlawful copies of games for its DS games console. The devices slotted into the Nintendo DS and had a memory card facility that could connect to a computer from which pirated copies of the games could be obtained. The device contained specific parts enabling it to pass Nintendo’s tests that intended to verify that the relevant game was legitimate, and in so doing the device enabled unlawful copies to be used with the DS.

Playables claimed that it did not know that the devices would be used for an unlawful purpose, as it could be used for legitimate home-made games. However, the High Court rejected that argument. Two provisions of the Copyright Designs and Patents Act 1988 (as amended) were broken. One involved strict liability, meaning that knowledge was not needed – just the fact that the device circumvented the security measures; the mere fact that the device could be used for a lawful purpose was not a defence. Another section of the Act – this time involving knowledge – was also broken because Playables had reason to believe that the device would be used to make infringing copies of the games. The use of R4 cards (which the device contained) was very well known to be used for video game piracy. Given 165,000 devices had been seized and the relatively minor proportion of the market represented by lawful use, it was not credible to argue that Playables did not know the devices would be used for infringing copies. Accordingly, Playables had no realistic prospect of success and Nintendo’s summary judgment application was granted.