Protection for protection rights: The Federal Court of Justice on safeguard measures for video games

The German Federal Court of Justice (“BGH”, Videospielkonsolen II) has stated that technical safeguard measures for video games fall under the scope of section 95a (3) nr. 3 of the German Copyright Act (“UrhG”), if such measures (in the case decided: Nintendo DS cards for Nintendo DS games consoles) are specifically designed to prevent illegal copies of the games which are played on the consoles.

Background

The plaintiff is a producer and distributor of Nintendo DS games consoles and games for such consoles. Each game is distributed on a card which has to be inserted in the console and therefore has a specific form which only fits for the Nintendo DS games console. The plaintiff is the owner of all copyrights with regard to the computer programs and any other protected elements of the games.

The defendant offers adapter cards which also fit for the Nintendo DS games console. With such adapter card, not only games saved on cards specifically designed for Nintendo, but also games on any other medium can be played on the console. According to the plaintiff, this leads to the use of illegal copies of games, since users do not have to buy the original cards any more to be able to play a game on the Nintendo console.

The court agreed with the plaintiff, because section 95a (3) nr. 3 UrhG forbids the sale of measures made to avoid effective technical safeguard measures. This includes technical measures to protect computer games, if they are made to prevent illegal copies of the games. The BGH further stated that adapter cards as offered by the defendant are an incentive to use illegal copies instead of legal ones and that, compared to this application, legal ways to use adapter cards are less likely.

However, the court left open if the technical safeguard measures in question were necessary and appropriate and therefore enforceable. This will have to be decided by the appeals court.

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