Videogames and consoles Between Copyright and Technical Protection Measures

The recent decision of the Italian Supreme Court seems to put to an end the judicial saga of the Playstation’s “mod chip” in Italy. The Italian Supreme Court has eventually found the producer of mod chip (the equipment capable of circumventing Sony’s technological protection measure) liable under art. 171-ter, lett. f-bis), Italian Copyright Law, implementing the provision codified at art. 6(2), of the Information Society Directive. According to the Court, since videogames cannot be classified as mere software, the circumvention at issue had to be assessed in light of such provision encompassing a stronger burden of proof to be met by defendants. However, not much attention has been paid to the circumstance that the mod chip allowed circumvention of a measure placed on the console rather than the videogame itself. This fact may prove to be a crucial aspect in the analysis because the elusion of technological protection measures placed on software is disciplined by a different provision bearing a lighter burden of proof for defendants to rebut an initial finding of liability. In fact, in the latter case they only need to prove that other uses exist of the technology they produce that are not infringing. Because today many firms active in more than one market use TPMs to technically bundle together two (or more) products, exploiting the circumstance that at least one of them is protected by copyright, the Italian Supreme Court decision may turn quite problematic in its effects. In fact, while surely strengthening copyright owners’ position, especially in digital markets, it may also provide them the power to unduly distort competition in neighboring markets.