Hi friends,
I wanted to post a brief addendum to my presentation, since upon reflection I’m not too satisfied with how shallowly it treats Nintendo America. Definitely erred on the vague side of op-ed styling.
As mentioned earlier, the most concerning aspects of Nintendo America are the broad interpretation of TPMs and circumvention, and the narrow interpretation of the interoperability exception.
The strongest example of this is the court’s acceptance of Nintendo’s argument that, since “there are legitimate paths for developers to develop software on its consoles without circumventing the Applicant’s TPMs [there] is no need for any TPM circumvention to achieve interoperability.” [at para 123]
This seems to explicitly limit “interoperability” to mean only types of interoperability approved by the copyright holder, provided they establish at least one.
The prohibitive cost of a Nintendo development platform is apparently not a factor. Few individuals could actually afford to legitimately take part in the developer program that would let them develop software for the platform. This is the problem ‘homebrew’ is meant to solve.
It is unfortunate that King was not present to argue that interoperability should be accessible, and not made illusory through strict terms defined by copyright holders.
Still, the court was probably right in that the central purpose of King’s bypass was to allow piracy, and profit from others expectations that the product would enable piracy. Perhaps the court will be more generous in the next TPM decision if the defendant has purer motives.
Communications Law