More on modchips: are they legal in the EU?

Are modchips ‘legal’ in the EU?  If so, what exactly is their legal status?  One would have thought that this question would have been answered long ago but, as I’ve written about previously (see here, here and here for example) there have been setbacks and uncertainties along the way as console manufacturers take action against modchip makers, exacerbated by judicial commentary casting questions on exactly how modchips, and the games they work on, are to be treated legally.

Now we have another case continuing that line of inquiry, but hopefully leading to some kind of certainty ultimately: Nintendo v PC Box, currently wending its way through the Court of Justice of the European Union.  Most recently, we’ve had the opinion of the Advocate General (a kind of pre-judgement judgment essentially).  The IPKat and 1709 Copyright Blog have admirable write-ups on this case so far.  Here’s my tl;dr summary:

  • Console manufacturers can use modchips as “technological protection measures” which are physically linked to either the console or the game itself.
  • However, modchips themselves are not illegal per se: you have to look at what the modchip is doing.
  • If the primary use of the mod chips/game copiers was for infringing purposes (e.g. to pay pirated games), this suggests the modchip would be being used legitimately.
  • However, if the mod chip is used primarily used for legitimate, non-infringing purposes (e.g. home brew games), this suggests the used of the modchip would not be proportionate.
  • In practice, since console manufacturers CAN use modchips they’re likely always to use modchips and then have to face claims if that use of modchips falls foul of legitimate homebrew usage.  Either that, or they try to build a homebrew exception in modchips going forward (though that’s beyond me technically as to how it’d work).

So, another indication that modchip usage in the games industry is legal, provided it is for legitimate purposes.  BUT, three provisos: (1) that’s the tl; dr summary and the case is more complex than that; (2) this isn’t the full judgement yet; and (3) there are other cases ongoing which may have an impact on this issue.  Watch this space…

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