The u.a. I responsible for copyright. Civil Division of the Federal Court to the Court of Justice the question of the European Union, rules according to which the protection of technological measures designed to protect copyrighted video games aimed.
The applicant produces and sells video games and video game consoles, including the console “Nintendo DS” and for many matching games. It owns the rights to the copyrighted computer programs, Voice, Music, Photograph- and cinematographic, the part of the video games are. The video games are only on special, available only for the Nintendo DS console matching memory cards, which are inserted into the card slot of the console.
The defendant offered to the Internet adapter for the Nintendo DS console. These adapters are reproduced the original memory card exactly in shape and size, to fit into the card slot of the console. They have a slot for a Micro SD card or a built-in memory chip (“Flash memory”). Users can use the console with the help of this adapter available in the Internet piracy of games on the console. To invite such copies of the games from the internet and this is then transferred to either a micro SD card, which is then inserted into the adapter, or directly on the built-in memory of the adapter module.
The applicant believes that the sales of the adapters in breach of the provision of § 95a para. 3 Copyright Act; This provision provides for the protection of effective technological measures, which in turn serve the protection of copyrighted works. The applicant has to enjoin the defendant, Information, Damages and destruction of cards claimed.
The district court granted the claim. The defendants' appeal is unsuccessful. This Court has adopted, the sales of the adapters is contrary to § 95a Abs. 3 Copyright Act. That matched the format produced by the applicants cards and consoles constituted an effective technical measure to protect the information in the video games voice, Music, Photograph- and film works are. With the revision approved by the Federal Court, the defendants further pursue their motion to dismiss the complaint.
The Bundesgerichtshof decided to stay proceedings and to refer to the European Union submitted. § 95th Abs. 3 Copyright Act sets Art. 6 Abs. 2 Directive 2001/29 / EC almost literally into German law by. Both provisions regulating the protection measures to protect copyright works. However, look for the protection measures for the protection of computer programs, the provision of Art. 7 Abs. 1 For sure. c of Directive 2009/24 / EC and the decision taken to implement provisions of § 69f Abs. 2 UrhG special – less far-reaching – Regulation before. Furthermore, Article determined. 1 Abs. 2 For sure. of Directive 2001/29 / EC, that the Directive 2001/29/EC – and thus their kind. 6 Abs. 2 – the existing Community provisions on the legal protection of computer programs does not affect. The serving for the implementation of that provision of § 69a para. 5 Copyright Act provides, inter alia, that the provision of § 95a para. 3 Copyright Act does not apply to computer programs. The products sold by the applicants, video games not only consist of voice, Music, Photograph- and cinematographic; Rather, they are based and computer programs. Therefore, the question arises, whether the protective measures for the protection of such “hybrid products” especially as video games on the computer, especially for programs or to the generally applicable rules for works directed or whether both the one as the other provisions are applicable. Since this question relates to the interpretation of European Union law, the BGH to the ECJ for a preliminary ruling.
Decision of 6. February 2012 – I ZR 124/11 – Video game console
Court Munich I – Judgment of 14. October 2009 – 21 The 22196/08, MMR 2010, 341
OLG – Judgment of 9. June 2011 – 6 You 5037/09
§ 95a of the German Copyright Act
(1) Effective measures for the protection of a protected work under this Act or any other protected under this law the Work shall not without the consent of the right holder are bypassed, where the actor knows or has reasonable grounds to know the, that the bypass is, to permit access to such a plant or protective article or use.
(2) Technical measures used in this act are technologies, Devices and components, which, in the normal course of its operation, protected works or other protected subject matter under this Act concerning actions, which are not authorized by the copyright holder, to prevent or limit. Technical measures are effective, as far as they use a protected work or other protected subject matter under this Act protection of the right holder by an access control, protection process, such as encryption, Scrambling or other transformation or a copy control mechanism, to ensure the achievement of the objective of protection, is kept under control.
(3) Prohibited to manufacture, imports, spreading, the sale, the rental, advertisement for sale or rental and commercial purposes serving possession of devices, Products or components or the provision of services, the
1.The subject of a sales promotion, Advertised or marketed for the purpose of circumvention of, or
2.other than to circumvent any effective technological measures have only a limited commercially significant purpose or use or
3.primarily designed, produced, adapted or performed, to allow the circumvention of, or to facilitate.