Every manufacturer of mass-market video gaming consoles has faced the possibility of piracy on their platforms.
The tools to prevent piracy usually come as a two-man team of hardware and software trickery (technological protection measures) but these are often defeated, later if not sooner.
Nintendo, in particular, has been struggling with piracy on its Switch console, facilitated by circumvention tools (particularly SX Pro and SX OS) promoted and made available to users via various websites.
In an effort to tame the threat, Nintendo went to the High Court of England and Wales, requesting an injunction that would prevent subscribers of several major ISPs from gaining access to the sites in question.
As is common in such cases, the ISPs themselves – Sky, BT, EE, TalkTalk, and Virgin Media – were the named defendants in the case. Nintendo (NCL) asked the Court to compel them to block team-xecutor.com, sx-xecutor.com (both operated by Team Xecutor) plus sxflashcart.com and xecuteros.com (previously stargate3ds.org).
Most ISP blocking in the UK is the result of copyright infringement proceedings but Nintendo’s opening drive against the above sites is that they use the company’s trademarks without permission.
Justice Arnold said that in his opinion it is “beyond dispute” that the sites use Nintendo’s marks in order to promote circumvention devices. He also agreed that the devices were made available to the public on the basis they would be used to provide access to infringing content, since they all mention piracy in promotional material.
“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 Switches using the circumvention devices and that NCL has sustained significant losses as a result,” Justice Arnold writes.
“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.”
The Judge further notes that cease and desist notices sent by Nintendo’s lawyers were ignored by the target sites while hosting providers, “to the extent they could be identified”, also took no action.
While noting that blocking can be easily circumvented, the Judge said that blocking can be effective in reducing traffic to the sites in question, acts as a deterrent, won’t be detrimental to the ISPs’ business, and is therefore a proportionate response to infringement.
The order handed down by Justice Arnold on Tuesday can be obtained here