Do you dare to play this game – can you hack it?

You are ‘C’, a.k.a. head of MI6. You are playing a game of evasion, a game where you have no equals. That is, not until now. It’s time, time for you to come face to face with your nemesis . . . ‘Z’.

Go deep into the Copyright, Designs and Patents Act 1988 and there you will find ‘Z’ – a.k.a. ‘the Z sections’.

Yesterday Mr Justice Floyd considered section 296ZD in the summary judgment of Nintendo v Playables. It’s a case that examines the UK’s law regarding circumvention of copyright protection – and whether there’s a difference in the law when it is computer programs that are being copied, or other copyright works.

It all began with a customs seizure of 165,000 devices – devices that are used by those who enjoy playing a game of cat and mouse with Nintendo. Here’s how to play:

1. Illegally download games from the internet (instead of paying £20–£30 per game).
2. Copy games on to illegal device.
3. Slot device into Nintendo DS.
4. DS checks games are genuine – device gives DS the all clear.
5. Play!

Once the judge had resolved concerns about the fact that this uncontested summary judgment application came before him after the parties had partially settled, he easily granted summary judgment finding infringement under ss. 296 and 296ZD.

Sections 296 and 296ZD

These sections outlaw making or selling means for circumventing technological measures that protect copyright. Section 296 applies where the copyright being infringed is in computer programs. Section 296ZD applies where other types of copyright are being targeted.

Floyd J held that s. 296ZD was applicable in this case (as well as s. 296) because ‘although that which is stored on the card is a computer program, the game includes graphic and other works the copying and use of which is controlled by the ETM.’ (Don’t most computer programs involve some copyright material apart from code?)

On the face of it s. 296 requires that the defendant knows the circumventing technology will, at some point, be used to infringe copyright. However, this reading should be questioned as the section implements the Computer Programs Directive, which does not require the defendant to have this knowledge. Under s. 296ZD, by contrast, it’s clearly immaterial whether the defendant (‘C’) knew the device would be used for infringing copyright.

Playables’ export sales

In Sony v Ball, Laddie J held that ss. 296 and 296ZD would not apply where the devices were used abroad. Floyd J went along with this for s. 296 as it applies where the defendant knows devices would be used to make ‘infringing copies’ (i.e. copies that infringe UK copyright). However, the ‘infringing’ language is missing from s. 296ZD, so Floyd J, reluctantly departing from Laddie, held that s. 296ZD would apply to exported devices.

Under this line of reasoning, it would seem that had Parliament correctly implemented EU law, s. 296 might also apply to exported devices….

The judge’s view gives UK law in relation to copyright-protection devices a kind of extra-territorial effect that is not present in normal authorization of copyright infringement (where the copyright infringement that has been authorized must take place in the UK).

Now for a game of s. 16…

Presumably because these devices can be used for playing home-made games, the judgment makes no mention of Playables authorizing copying of Nintendo’s games but there was still some scope for an old-fashioned game of s. 16 copyright.

Playables, it was held, was authorizing the copying of the ‘NLDF’ security code from the device to the DS’s RAM. It isn’t mentioned, but aren’t the devices also sold holding an illicit copy of the NLDF?

When a user puts the device into the console, the DS’s boot-up software is copied into the DS’s RAM. Floyd J was not quite ready to grant summary judgment – it seems because legal Nintendo cards would have the same effect. Surely, however, even though the two copies are identical, one is authorized and the other isn’t?

As for the Nintendo Racetrack Logo, the judge said it was ‘so rudimentary that I consider that it is arguable that copyright does not subsist, particularly as what it is relied on is a modification of a pre-existing work’. Once you’ve experienced the state-of-the-art game of ‘Z’, a game of s. 16 can start to seem a bit basic and old-hat.