Nintendo has won an injunction in the UK High Court that forces all of the largest broadband ISPs – Sky Broadband, BT, TalkTalk, Virgin Media and EE – to block four websites that were found to have facilitated copyright infringement (internet piracy) by helping to distribute video games for the company’s Switch console.
At present the largest ISPs can only be forced, via a court order, to block websites if they are found to heavily facilitate internet copyright infringement, which is supported via Section 97A of the Copyright, Designs and Patents Act. So far well over 100 piracy sites have been blocked as a result of this (including several thousand proxy sites and mirror domains). Most of those have been file sharing (P2P / Torrent) and video streaming sites.
The existing process is very expensive and time consuming for both sides to pursue and implement, although Rights Holders often deem it to be a price worth paying as part of their wider efforts to discourage casual piracy.
In this case two of the target websites (“the Team Xecuter Websites“) were operated by the parties responsible for developing circumvention devices for the Switch (modded to allow pirated games), while the third and fourth (“the R4 Website” and the “Stargate Website“) are operated by UK resellers of such devices.
NCL contends, and I accept, that in the present case these criteria are satisfied because, in summary:
i) The injunction sought is necessary to prevent, or at least reduce, substantial damage to NCL. It appears that substantial sales of the circumvention devices have been made in the UK, that substantial quantities of pirated games have been downloaded in the UK and installed on Nintendo Switches using the circumvention devices and that NCL has sustained significant losses as a result.
No alternative measures are realistically available to NCL since NCL has been unable to identity the operators of the Target Websites, who may well be abroad. Cease and desist letters sent by NCL’s solicitors have been ignored, except that both the R4 and Stargates Websites changed their URLs following the sending of the letters.
Take-down requests to the relevant hosting providers, to the extent that these can be identified, have likewise been ignored. Take-down requests sent by NCL to platforms such as YouTube, Amazon and ebay are actioned by the platforms, but the relevant listings are simply replaced by new ones.
ii) The evidence in the Cartier case showed that, although quite easily circumvented, blocking injunctions are effective in reducing traffic to the target websites.
iii) Similarly, blocking injunctions are dissuasive. Moreover, the Defendants are required to display information about the block, which helps to dissuade users.
iv) Blocking injunctions are not difficult for the Defendants to implement. On the contrary, they already have the necessary technology. Moreover, as a result of the decision of the Supreme Court in Cartier, NCL must bear the Defendants’ incremental costs of implementing the injunction, and so there is no additional cost for the Defendants.
v) The injunction sought by NCL will have no impact on legitimate trade, because none of the Target Websites appears to carry on any legitimate trade.
vi) The injunction strikes a fair balance between protecting NCL’s rights and the rights engaged, because the Defendants’ right to carry on business is unaffected and the public has no legitimate interest in being informed about or purchasing circumvention devices whose sole purpose is to circumvent NCL’s TPMs and infringe its rights to NCL’s significant detriment.
vii) For the reasons given above, the injunction is proportionate.
viii) The order proposed by NCL contains the usual safeguards adopted in previous cases.
Such blocks can indeed help to discourage casual piracy, although it’s worth remembering that those who go actively seeking such content can easily circumvent deep blocks implemented at ISP level via all sorts of different methods (TOR, Proxy Servers, VPN etc.).
Nevertheless Nintendo told Eurogamer that it was “pleased” with the High Court’s ruling. “This decision will help protect the UK games industry and the more than 1800 developers worldwide that create games for the Nintendo Switch platform, and who rely on legitimate sales of games for their livelihood and to keep bringing quality content to gamers,” said a spokesperson.