Nintendo Co. Ltd. v. Sky UK Ltd. & Ors

England and Wales High Court (Chancery Division)

In the England and Wales High Court, Nintendo has received a court order requiring five major Internet Service Providers in the country to block access to four websites that Nintendo alleges promote piracy of Nintendo Switch software. Nintendo alleges that the websites in question enable trademark and copyright violations via, among other things, Nintendo Switch hacking.

The websites in question all focus on the sale and promotion of a product called SX OS, which is a popular commercial Nintendo Switch hacking product. While the court order notes that all Switch systems sold after June 2018 are not vulnerable to the exploits in SX OS, there are still “a very substantial number of the earlier, vulnerable Nintendo Switch consoles in circulation and there is evidence of active attempts being made to circumvent” security on post-June 2018 Switch consoles.

This type of ruling has actually become quite common in the UK, where alleging a website’s promotion and sale of copied goods has led to over 1000 URLs being blocked. Piracy prevention has been the major reason given for the majority of these blockages.

The UK’s policy of actively blocking URLs allegedly connected to piracy is quite different than the US’s approach, where Internet Service Providers are shielded from copyright infringement by the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA). As long as providers comply with a given set of rules in the DMCA, they are largely immunized from copyright infringement liability. There have been legislative attempts (e.g., the Stop Online Piracy Act and PROTECT IP Act) to create laws that would have allowed courts in the US to have greater power and the ability to issue UK-style court orders to block piracy related websites; however, such laws have thus far failed in the face of major public backlash.

Given that Nintendo generally cannot outright ban URLs in the United States, when pursuing action against pirates in the United States, Nintendo generally relies on cease-and-desist letters, lawsuits, and the mere threat of such action against individual websites. While Nintendo has been diligent in protecting their IP, it appears the availability of pirated content on the Internet has not particularly decreased in the face of Nintendo’s active efforts to curtail such dissemination.