infoJustice

Last week, the Court of Justice of the European Union ruled that the circumvention of technological protection measures is not illegal in all cases.  In order for the circumvention to be illegal, it must be done for the purpose of infringement.The full judgement is here.

The CJEU press release notes that the EU directive requires Members to provide protection against circumvention of technological prevention measures, but states that: “The directive is designed only to protect the copyright holder against acts which require his authorisation.” [emphasis added]

The release further states:

… The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation from the copyright holder is required.

That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection for unlawful purposes. The Court of Justice notes that the scope of legal protection of technical measures must not be assessed according to the use of consoles defined by the holder of copyright, but that rather it is necessary to examine the purpose of devices provided for the circumvention of protection measures, taking account, according to the circumstances at issue, of the use which third parties actually make of them.

Glyn Moody wrote in TechDirt that “As well as being an eminently sensible ruling, it’s potentially hugely important, because it establishes that in principle DRM may be circumvented, depending on the circumstances.”

For more on the case, see:

• Eleonora Rosati in IPKat. “CJEU says that circumventing a protection system may be lawful (sometimes).” 
• Mike Rose in Gamasutra. European court rules that homebrew console circumvention may be lawful.