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Court Forces Big UK ISPs to Block Nintendo Switch Piracy Sites

Tuesday, September 10th, 2019 (5:25 pm) - Score 2,841
uk pirate music

Nintendo has won an injunction in the UK High Court that forces all of the largest broadband ISPs – Sky Broadband, BT, TalkTalk, Virgin Media and EE – to block four websites that were found to have facilitated copyright infringement (internet piracy) by helping to distribute video games for the company’s Switch console.

At present the largest ISPs can only be forced, via a court order, to block websites if they are found to heavily facilitate internet copyright infringement, which is supported via Section 97A of the Copyright, Designs and Patents Act. So far well over 100 piracy sites have been blocked as a result of this (including several thousand proxy sites and mirror domains). Most of those have been file sharing (P2P / Torrent) and video streaming sites.

The existing process is very expensive and time consuming for both sides to pursue and implement, although Rights Holders often deem it to be a price worth paying as part of their wider efforts to discourage casual piracy.

In this case two of the target websites (“the Team Xecuter Websites“) were operated by the parties responsible for developing circumvention devices for the Switch (modded to allow pirated games), while the third and fourth (“the R4 Website” and the “Stargate Website“) are operated by UK resellers of such devices.

High Court Ruling

NCL contends, and I accept, that in the present case these criteria are satisfied because, in summary:

i) 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 Nintendo Switches using the circumvention devices and that NCL has sustained significant losses as a result.

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. Cease and desist letters sent by NCL’s solicitors have been ignored, except that both the R4 and Stargates Websites changed their URLs following the sending of the letters.

Take-down requests to the relevant hosting providers, to the extent that these can be identified, have likewise been ignored. Take-down requests sent by NCL to platforms such as YouTube, Amazon and ebay are actioned by the platforms, but the relevant listings are simply replaced by new ones.

ii) The evidence in the Cartier case showed that, although quite easily circumvented, blocking injunctions are effective in reducing traffic to the target websites.

iii) Similarly, blocking injunctions are dissuasive. Moreover, the Defendants are required to display information about the block, which helps to dissuade users.

iv) Blocking injunctions are not difficult for the Defendants to implement. On the contrary, they already have the necessary technology. Moreover, as a result of the decision of the Supreme Court in Cartier, NCL must bear the Defendants’ incremental costs of implementing the injunction, and so there is no additional cost for the Defendants.

v) The injunction sought by NCL will have no impact on legitimate trade, because none of the Target Websites appears to carry on any legitimate trade.

vi) The injunction strikes a fair balance between protecting NCL’s rights and the rights engaged, because the Defendants’ right to carry on business is unaffected and the public has no legitimate interest in being informed about or purchasing circumvention devices whose sole purpose is to circumvent NCL’s TPMs and infringe its rights to NCL’s significant detriment.

vii) For the reasons given above, the injunction is proportionate.

viii) The order proposed by NCL contains the usual safeguards adopted in previous cases.

Such blocks can indeed help to discourage casual piracy, although it’s worth remembering that those who go actively seeking such content can easily circumvent deep blocks implemented at ISP level via all sorts of different methods (TOR, Proxy Servers, VPN etc.).

Nevertheless Nintendo told Eurogamer that it was “pleased” with the High Court’s ruling. “This decision will help protect the UK games industry and the more than 1800 developers worldwide that create games for the Nintendo Switch platform, and who rely on legitimate sales of games for their livelihood and to keep bringing quality content to gamers,” said a spokesperson.

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Mark Jackson
By Mark Jackson
Mark is a professional technology writer, IT consultant and computer engineer from Dorset (England), he also founded ISPreview in 1999 and enjoys analysing the latest telecoms and broadband developments. Find me on Twitter, , Facebook and Linkedin.
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17 Responses
  1. Avatar Mike

    Is Nintendo even relevant anymore?

    • Avatar Adam

      As of 31st December 2018 they’ve sold 32m+ units with 164m+ game sales (average of 5 per console). I’d say they were very relevant. Should give it a go. Might have fun with it!

    • Avatar Leon DeLaJean

      You’ve obviously been living under a massive fat rock for you to write such a stupid question/statement, the fact you uetion Nintendo very existance is why you’re —–.

    • Avatar Mike

      I’ve heard the Switch is quite popular with soyboys.

    • Avatar Adam

      Are you too manly for it Mike? Perhaps you just can’t hold it properly with those big manly hands you have? Or just too busy cutting down trees with an axe and those red checked shirts? Perhaps you read the Daily mail so much you don’t have time for it?

  2. Avatar Steve C

    My kids have a Switch, the pricing of the games when they are launched is eye-watering and there is a huge pressure from them to provide the latest and greatest so I fully understand why some might want to pirate these games.

    My argument is that if the games were more affordable in the first place or even an affordable subscription based service then there would be less inclination to pirate copy these things.

    • Avatar CarlT

      The games cost about the same in absolute terms as they did in the 1980s. As in back then the games were around the same price. Taking inflation and everything else into account they cost a fraction what they did then.

      The usual argument is that if things were cheaper there’d be less on an inclination to copy things but you still can’t beat free.

      These games cost in some cases a hundred million and more to make. That has to be recouped and more to allow further investment in development.

      A subscription service necessarily isn’t likely to carry the latest and greatest unless it’s seriously expensive. This unfortunately is life. Either say ‘no’ to the kids or, sadly, clench 🙁

    • Avatar Adam

      They truly are. I can see piracy becoming more prominent when physical games are ruled out. It’s just a matter of time, i feel. Companies lose out on a bit of money when people resell their games. Can’t do that with downloaded media. And you certainly can’t sell your PSN, XBOX or Switch account as its against those companies TOS. Can also rent physical media. Subscriptions based services will, hopefully, offer affordable gaming for all.

    • Avatar Adam

      And to Carl’s comment. There are not many games out there that cost 100+ million. Could probably count them with 2 hands. As for your average triple A title, they usually cost between 10-50 million. And most of those developers usually make above 300+m. Not saying you’re wrong though. Its priced like that for a reason.

    • Avatar Joe

      Well there was certainly a huge drop in piracy when the first legal and reasonable priced dl sites for music started.

    • Avatar anon

      @CarlT:

      What about old games? Like Commander Keen or other Apogee games?

    • Avatar Matthew Lamonte

      Nintendo sells 3 year old games for full price when you can get them cheaper on other platforms

    • Avatar CarlT

      Many of the games need a fair bit of work to run well on a mobile device.

    • Avatar joe pineapples

      “there is a huge pressure from them to provide the latest and greatest”

      Can’t parents say the word ‘no’ anymore?

    • Avatar Mike

      Quality of AAA games has declined quite rapidly in the last decade, pricing has gone up as large publishers create their own stores thinking they can charge what they want, unauthorized distribution is the inevitable result.

  3. Avatar Matthew Lamonte

    P2p
    And vpn

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