Nintendo v Playables and the R4 Card

In July 2010, the High Court granted Nintendo summary judgment against Playables Ltd and its director Wai Dat Chan, a major UK importer of devices such as the R4 card that allowed Nintendo DS users to play pirated games. The ruling in Nintendo v Playables confirmed that dealing in these devices was unlawful in the UK.

The R4 looked like an ordinary DS game cartridge but contained a slot for a micro-SD card. Users could download copies of games from the internet, load them onto the card and play them on their console for free, with one device able to hold many games. Genuine DS games retailed for £20 to £30 on release. The defendants imported these devices on a very large scale, and HMRC and Trading Standards seized more than 165,000 game copiers intended for them. Nintendo brought the claim on its own behalf and on behalf of over 1,400 game developers that depended on legitimate sales.

The case turned on section 296ZD of the Copyright, Designs and Patents Act 1988, which protects effective technological measures used to prevent copying. The DS was designed to only play genuine cartridges, and the R4 worked by getting round that protection. The defendants argued that the devices had lawful uses, such as playing home-made games. Floyd J rejected this, holding that even home-made games only worked by circumventing Nintendo's protection, and that the mere fact a device can be used for a non-infringing purpose is not a defence. He described the devices as templates for infringement. He also held that it was not necessary to show the devices would actually be used to circumvent protection within the UK, only that they were capable of it, departing from the earlier approach in Sony v Ball.

Copyright law protects not just the games but the technology built to stop them being copied. That is why companies like Nintendo pursue the sellers of these devices rather than the players using them.