Abstract
The changes (hardware and / or software) of the console in order to boot homebrew software and backup copies is a thorn in the side of the manufacturers, as well as backup copies, as is known, it becomes possible to run pirated games.
After Wii and Xbox 360, has "fallen" too Playstation 3, as amended by a specific USB device (up to firmware 3.41), so that all consoles have now been violated (and same happened to the portable consoles). The manufacturers, however, continue their fight in two aspects: one is purely computer, the other, however, is legal. This article analyze the impact of the sentence no 23765/2010 of the Supreme Court on the legality of the hardware changes. legislation applicable
In this case, before we understand the sentence no 23765/2010 of the Supreme Court, we should mention the following articles of the law on copyright (law 633/41):
1) Art. 171, paragraph 1: "It is punished, if the offense is committed for personal use, with imprisonment from six months to three years and a fine of € 2,582 to € 15,493, any for-profit [...]
f-bis) [...] sell [...] advertises for sale or hire, or possess for commercial purposes, equipment, products or components or provides services that have the predominant purpose of evading or commercial use effective technological measures referred to in art. 102-c that are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of these measures [...] "
2) Art. 102-c:" 1. The holders of copyright and related rights and the right under Article. 102-bis, paragraph 3, may be affixed to the works or subject matter of technological measures effective protection that include all the technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts not authorized by the holders of the rights [...] "
The background
The Supreme Court was asked to rule on a decision of the Criminal Court of Florence, in the review, which had annulled a seizure ordered against a computer company accused of committing the crime of LN 633 of 1941 referred to in Art. 171 ter, paragraph 1, lett. fa), because it "would have marketed the devices through which can be used on gaming consoles of various brands, including Nintendo Wii, Nintendo DS, Microsoft Xbox, PlayStation, video games are not original result of unlawful activity of copying or otherwise illegally downloaded from the Internet, offering services in all cases the technology necessary to modify the same equipment for the purposes specified above.
The previous Court of Cassation and the notion of game
The Supreme Court ruling with No 33768 / 2007 , had already stated that the "technological protection measures (or MTP) were updated and developed according to the possibilities and risks, resulting in the development of communication technology, especially technology that operates on the network and that a significant part to the defense of copyright have been geared to operate in a coordinated manner on the copy of the product is intended to appear on this page and use that support. "
seems useful to quote another passage from that case, in which the Court states that it is" now clear that the "games" are something different and more complex than computer programs commercially available, as are not due entirely to the concept of media that contains "sequences of moving pictures. "Indeed, they will" support "to a computer program, which partially include, but this is only to give way on the main component has its own self-concept, which is represented by sequences images and sounds that, despite many options available to the user (according to the interactivity, however, never completely free because "wizard" and default by the authors), make up a story and a route planned and channeled by the authors of the game . But even if the development of a story can take on user-guided directions, there is no doubt that this development makes use of the basic narrative and technology desired by those who conceived and developed the game, just as no one doubts that constitute a work of genius attributed to their authors or stories to answer multiple "open" that characterize some books.
In other words, use a video game software and can not be confused with it. "
nza No 23765 / 2010
The Supreme Court agreed with the statement of the applicant pm that a security is part of the information contained in media (original game) while the other part is embedded in the console, evoking mechanism "key - lock". It follows that by introducing systems that exceed the obstacle to dialogue between the console and pirated software you get "the objective result of circumventing protection mechanisms applied on the protected area."
protection keys and remind us of something ...
Moreover, the Court concluded "in a completely unprovoked and apodictic that it is not possible to state with certainty that the removal of the protection of the console has as its main purpose is to violate the rights of creators by reading Games illegally copied. "
According to the Court, which incorporates the earlier decision of 2007 , changes must be recognized as "necessarily the overriding purpose of circumvention of protective measures indicated in Art. 102 cc into account a number of factors such as how in which the console is imported, sold and presented to the public the manner in which it is configured, the identified key target in the performance of video games as confirmed by the documents accompanying the product, the fact that some units, such as keyboard , mouse and video are not originally provided, and must eventually be bought separately. Hence the applicability art. 171, paragraph 1, lett. fa) l. 633/41, because its equally to all devices primarily designed to allow the circumvention of protective measures under Article. 102 cc.
The Court therefore annulled the decision of the review and the Court of Florence will have to decide about the story, but taking into account the principles established by the Court.
According to the writer, the decision of the Supreme Court is not acceptable, because in fact lead to lock the same ability to use any software not previously approved by the manufacturer of each console, but not illegal.
Moreover, regardless of any assessment regarding the "goodness" of art. 102-quater of Law 633/41, you really have to consider that, although it is true that mod chips are also used to play games copied or downloaded illegally, it is also true that the modified consoles (owned by the user) can run homebrew software and gain valuable numerous other functions. Just think of the famous software "XBMC" , media center designed for Microsoft Xbox (also available for Windows, OS X and Linux), or the possibility of making the same console a true NAS, as explained by its Tom's Hardware . It should therefore be proved that a certain modchip is primarily aimed at the violation of technological protection measures, but, in this case, it seems that this has been taken for granted, without any specific evidence to support this.
A screenshot of XBMC - Click to enlarge
In this case, then, the Supreme Court has also taken into account, only the rights of holders of copyright on the game , forgetting the rights of purchasers of the console, which will be deprived, in fact, of possible changes, and thus to exploit other potential hardware they have legitimately purchased.
again, appeared to agree with the interpretation of the Court of Florence, in the review, said that the mechanism introduced by the manufacturer on the console, to limit the functionality does not seem to be a technological measure of protection from protected ' art. 102-quater of Law 633/41 . This article refers only to the technology affixed directly on the works or materials protected by copyright, while the modchip are placed outside of the medium containing the work of the protected (being installed at each console!).
One of the first modchip for the Xbox 360 - Click to enlarge
Finally, there are some doubts as to the following statement, attributed to the sentence given in pm "on the console is not changed, however, can be used, According to the chief anti-piracy, video games, even original, other manufacturers' What does this mean? It is well known fact that the modified consoles allow you to perform even the original software.
Conclusions
the light sentence No. 23765/2010 of the Supreme Court, could perhaps be considered that in Italy the sale of mod chips should be illegal. Fortunately, the precedents in our legal system, though important, do not have the force of law (in this case, however, the Supreme Court enunciated the principle of law that the Court of Florence will follow) and not binding on the courts (although can orient their activities to legal interpretation). It follows that, in future, the Court itself could change its orientation (a fact anything but that rare!) actually in the light of new arguments in other proceedings involving the same object.
A longer version with a larger number of legal regulations and case law is available in the online magazine dirittodellinformatica.it .
Article by Tom's hardware.it
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