Nintendo’s popular Switch game console is credited with turning around the fortunes of the Japanese consumer electronics giant. Strong sales of both hardware and games followed its 2017 launch, with some 36 million consoles sold to date. However, threats from developers of kits and software to circumvent copy-protection remain an issue for the ongoing success of the product.
Nintendo takes an active approach to IP protection, using multi-faceted copy-protection technology to secure the platform against unlicensed material. But devices and software allowing players to use pirated games soon appeared on the market. Since June 2018 measures to prevent circumvention were built into the console, but many vulnerable consoles remain in circulation, and efforts to hack the new system remain a threat.
Combating the "homebrew" culture
A “homebrew” culture exists to develop new games and bypass licensed game distribution. Nintendo seeks to channel this through its Authorised Developer program. In fact, most of the 2100 currently available games were developed in this way. But a serious problem with console modification and use of pirated games remains.
Nintendo received a boost from a UK court last month, in the form of a court order blocking a series of illegal websites. Importantly, the order works through requiring blocking measures to be taken by the five main UK internet service providers, or ISPs. This shows the court continuing to develop a flexible approach, building on earlier decisions.
Why use website blocking injunctions?
Orders that take effect through website blocking by the ISPs can be a powerful tool. It is often difficult to track down and enforce your rights against small-scale website operators, for the most part based outside of the UK. Blocking access to offending websites from within the UK, with a key role played by the ISPs, is a much more straightforward alternative.
We have seen orders like this play out in the context of copyright content (films, music etc) and luxury branded goods. We reported last year on the development of live blocking injunctions. These operate to prevent illicit streaming of sports broadcasts, and are applied in an agile way that enables targeted blocking of a regularly updated list of offending servers.
Litigation brought by luxury goods manufacturers has achieved recent success against websites selling counterfeit goods. As part of that litigation, the Supreme Court confirmed in a 2018 ruling that ISPs were responsible for establishing a system to enable blocking of specific websites, although the IP owner had to pay for incremental costs in relation to the websites complained of.
In the Nintendo case, circumvention of copy protection plays a new role. The court extended its existing practice to apply to laws against circumvention, even though these were not strictly intellectual property rights.
An imaginative approach
Once again, the UK courts have shown themselves willing to take an imaginative approach to enforcement of IP rights in clear cases of infringement. Injunctions to block access within the UK to websites selling counterfeit goods, hosting pirated content or giving access to illegally streamed sports broadcasts are now well-established.