Nintendo v. Divineo

Key takeaways

“Linkers” were cartridges that made it possible to run copies of games on the Nintendo DS. At first instance, the sellers had won by invoking interoperability. The Paris Court of Appeal overturned everything.

Six importers and distributors were convicted of infringement: in total, more than 460,000 euros in fines and more than 4.8 million euros in damages for Nintendo, with suspended prison sentences for some. The court denied them the status of lawful users, criticised them for never asking Nintendo for the information, and above all found that these cartridges were used to neutralise the console's protections, while also reproducing its trademark. The technology is not banned as such, but using it to bypass security is. The ruling shows how narrow the interoperability exception becomes when consoles are involved.

At first instance, the Paris criminal court had acquitted the defendants in December 2009, taking the view that linkers could be used for lawful purposes, such as running homebrew programs. The court of appeal on the contrary found three sets of offences: software infringement, trade mark infringement and circumvention of technological protection measures, punished by Article L. 335-3-1 of the French Intellectual Property Code.

The ruling must now be read together with Nintendo v. PC Box, handed down by the Court of Justice in 2014. That judgment requires the court to check that the protection is proportionate and to look at how the devices are actually used. The severity of 2011 remains the French reference, but it no longer dispenses with that examination.