As someone who spent most of the 1990s glued to a Super Nintendo Entertainment System, it’s virtually impossible for me to read cases about Nintendo without drifting off into slack-jawed reverie over those technicolor 16-bit years of glory.
Back then, the raciest cheat codes got you to a secret level, alternate ending or a special sword / forearm-integrated rocket launcher, as appropriate. Several console generations later, in the Internet era of industrial-scale hacking and piracy, that all seems rather quaint.
In Nintendo Co Ltd v Sky UK Ltd & Ors  EWHC 2376 (Ch), the games company (‘NCL’) got a blocking injunction, requiring the five large internet service providers (‘ISPs’) Sky, EE, Virgin, BT and TalkTalk, to stop or restrict access to four websites advertising and selling devices that allowed players to get around Technological Protection Measures (‘TPM’) built into the Nintendo Switch games console.
Hacking or ‘jail-breaking’ the Switch allows users to run software on it made by independent (unauthorised) developers and to download pirate versions of Switch games for free.
Here’s the gist:
4. NCL is a well-known Japanese company that designs, manufactures and sells video games consoles, accessories and software. One of its most successful products to date is a console called the Nintendo Switch. NCL has sold millions of Nintendo Switch consoles in the UK. Games for the Nintendo Switch are written both by NCL and by third parties referred to as “Authorised Developers” who operate under a programme which NCL says is cheap to join, user-friendly and benefits from extensive support from NCL. Out of the 2100 games currently available for the Nintendo Switch, 1804 were developed by Authorised Developers.
7. The TPMs employ symmetric and asymmetric encryption to protect the copyright works. In simplified outline, an authorised video game is encrypted using a unique key. Attempts to decrypt the game without the correct key will produce unintelligible results. When an authorised user purchases a game, they are supplied with the encrypted game and with a unique key known as the title key, itself encrypted using a common key, and further encrypted using a device key unique to the individual console. The title key may then be decrypted by the authorised user first using the device key then the common key, the decrypted title key is then deployed to decrypt the game itself. As well as encryption of the game software, encryption is used to create a digital signature that ensures that the source of the software being supplied is authorised. The operation of the TPMs relies on the presence of various encryption keys in the firmware in the Nintendo Switch.
8. Regrettably, third parties discovered that there was a way to circumvent the TPMs by installing custom firmware on the Nintendo Switch. NCL implemented a change to the Nintendo Switch to prevent this in June 2018, but there remains a very substantial number of the earlier, vulnerable Nintendo Switch consoles in circulation and there is evidence of active attempts being made to circumvent the TPMs even on the post-June 2018 Nintendo Switches.
9. The circumvention devices consist of the SX Pro, which comprises a USB dongle and a jig tool, together with software called SX OS. Having purchased an SX Pro from a reseller, the user downloads SX OS from the first of the Target Websites onto a blank microSD card which the user inserts into his or her Nintendo Switch together with the SX Pro. The user then goes to the second of the Target Websites and, using a licence key stored in the SX Pro, obtains a licence for SX OS, which is then operable on the user’s Nintendo Switch.
Nintendo’s application for a blocking injunction was based on claims against the websites for trade mark infringement, who used the Nintendo Switch logo on their webpages advertising and selling the hacking devices, and for breaches of the Copyright, Designs and Patents Act 1988. The claim was well-founded given that the websites presented themselves as legitimate organisations that were liable to deceive some UK consumers. The websites were exploiting Nintendo’s good reputation to sell their unauthorised devices.
It was proportionate to grant an order blocking the websites due to the significant losses sustained by Nintendo and authorised developers from the piracy. The websites had ignored correspondence from NCL’s lawyers and there were no reasonable alternatives open to the company. While the sites were likely to try and circumvent the order, their traffic would be reduced and users dissuaded. Also, Nintendo would bear the ISPs’ costs of implementing the injunction, which was a straightforward process.