USDC C.D. California, July 21, 2009

Click here for a copy of the full decision.

  • Based on a claim under the DMCA, the court granted a preliminary injunction against a manufacturer of video game copiers that allowed players to effectively bypass plaintiff Nintendo’s security measures for its DS handheld video game systems.

In its suit for infringement and violations of the Digital Millennium Copyright Act (“DMCA”), Nintendo of America (“Nintendo”) moved for a preliminary injunction against defendants Daniel Man Tik Chan and entities under his control. In the underlying action, Nintendo alleges that defendants market and traffic game copiers, devices designed to allow users to play pirated copies of video games on Nintendo’s DS handheld video game systems. The court granted Nintendo’s motion for a preliminary injunction preventing defendants from importing, marketing, or trafficking its game copiers. The court applied the standard for grant of a preliminary injunction, namely, that (1) Nintendo demonstrated probable success on the merits of its case and (2) Nintendo could suffer irreparable harm if the injunction were not granted.

Nintendo alleges that defendants market and traffic game copiers, which are electronic devices designed to circumvent the security systems on Nintendo DS game systems, allowing users to play pirated video games. The court described the Nintendo DS systems as “dual-screen handheld portable video game systems featuring a clamshell design” which are intended to be used only with authorized game cards. The court noted that Nintendo “does not authorize the copying or downloading of Nintendo DS [g]ames onto devices, such as [g]ame [c]opiers” that mimic authorized games and by-pass Nintendo’s security measures. Game copiers are devices that enable users to “download games to portable memory storage” and circumvent Nintendo’s security system. Game copiers typically come in the form of game cards with substantially the same shape, size, and electrical configuration as authorized game cards. Game copiers are designed to hold hundreds of pirated video games, enabling users to play those games on the Nintendo DS.

In finding that the first requirement for grant of a preliminary injunction, that the movant is likely to succeed on the merits of its case, was satisfied, the court focused on Nintendo’s claims under the DMCA. The court concluded, that the Nintendo DS security system “is a technological measure that effectively controls access to a copyrighted work under sections 1201(a) and 1201(b) of the DMCA.” The court further concluded that defendants’ game copiers were “designed for the primary purpose of bypassing [Nintendo’s] technological measures” and that game copiers “have only limited commercially significant purpose other than to achieve such circumvention.”

The court also found that the second requirement for grant of a preliminary injunction, the possibility that the movant will suffer irreparable harm if the injunction is not granted, was satisfied. The court concluded that, because each game copier has sufficient memory storage capacity to act as the vehicle for pirated versions of hundreds of Nintendo’s games, the sale of even one game copier could result in “infringement of [Nintendo’s] copyrighted software on a massive scale.” Aside from injury to Nintendo’s intellectual property rights, the court concluded that game copiers harm Nintendo’s goodwill, detract from its consumer base, and harm its reputation. The court noted that, if it were to deny Nintendo’s motion, others would be encouraged to promote game copiers and cause further harm to Nintendo.

Having found the combination of probable success on the merits and the possibility of irreparable harm if relief were not granted, the court granted Nintendo’s motion for preliminary injunction, barring defendants from importing, marketing, or trafficking game copiers.