Copyright protection of video games: After the referral to the European Court of Justice (ECJ) and rejection by the Federal Court of Justice (BGH), Nintendo, advised by King & Wood Mallesons (KWM), was successful in their claim before the Munich Higher Regional Court (OLG).

Nintendo has won an important legal victory for the video game industry in a dispute over technical copyright protection measures. The 6th Civil Senate of the Higher Regional Court of Munich, chaired by Judge Konrad Retzer, held in his verdict that the circumvention of the technical protection measures implemented by Nintendo for the Nintendo DS console is illegal.

Nintendo had sued a distributor of adapters for playback of bootlegs (so-called slot-1 adapter cards) for the Nintendo DS console for injunctions and damages. The adapters bypass the protective measures implemented by Nintendo, which should prevent the playback of bootlegs. After the Federal Court of Justice had referred the matter to the ECJ and the ECJ took position on fundamental issues of the Copyright Directive, the Federal Court of Justice remitted the case to the Munich Higher Regional Court. The Senate finally decided and did not allow the appeal.

With the procedure Nintendo made legal history in the area of the copyright protection of video games. For example, the Federal Court of Justice had to decide whether video games are (even) copyrighted under the rules for cinematic works, although they contain computer programmes, which are subject to other copyright laws. This was affirmed by the Federal Court of Justice. The ECJ then specified the requirements for technical protective measures in terms of the copyright law. These legal questions have now been resolved, so that the action against distributors of illicit devices, which enable the playback of bootlegs, is based on a secured basis of the Supreme Court.

Dr Stefan Krüger, Intellectual Property partner, has a long-standing client relationship with Nintendo and have advised and represented the gaming company during the entire dispute.
Advisors Nintendo:
King & Wood Mallesons, Germany
IP/IT:
* Dr Stefan Krüger (partner, Frankfurt), Stefan Peintinger, LL.M. (lawyer, Munich)