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The Italian Criminal Court of Cassation has issued an interesting decision against two resellers of gaming consoles selling devices, the so called “modchips“, aimed at removing the technological measures of protection embedded in gaming consoles by the relative manufacturers.
Article 171-ter, letter f-bis, of Italian Copyright Law, implementing the Copyright Directive 2000/29/EC, sanctions with the imprisonment up to 3 years and with a fine up to € 15,493 any person that to gain profit:
manufactures, imports, distributes, sells, rents, assigns on any basis, advertises for sale or rental, or possesses for commercial purposes devices, products or components or the provision of services which either
- have as primary purpose or commercial use the circumvention of any effective technological measure i.e. measures of protection adopted by copyright holders limiting or blocking the unauthorised usage of the copyright protected material through its encryption, distortion or any other kind of transformation or of a mechanism of control of the produced copies; or
- are primarily designed, manufactured or adapted with the purpose of circumventing such measures.
The Court held that the conduct undertaken by the resellers of modchips was meeting the requirements of the abovementioned crime as this provision is applicable both when copyright holders embed the technological measures of protection in the games themselves and when such measures are incorporated in the gaming consoles. However, the Court clarified that scope of the provision is limited to the cases when it is possible to prove that the devices have as a primary purpose the circumvention of such measures of protection.
This decision has been welcomed by console manufacturers as the Court of Cassation has finally clarified its position on the matter.
Do you want to know more details on the above? Please contact me, Giulio Coraggio.
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