Also owning modchips non installed on a console is an offense

By Judgment 34180/2017, the 3rd section of the (Italian) Supreme Court, Criminal section, judged groundless the appeal proposed by a person condemned for being in possession of 140 devices, called “modchip”, consisting in electronic circuits aimed at eluding the technological measures of protection on videogames and consoles.

As the Supreme Court reminds, art. 102-quarter of law no. 633/1941(Copyright Law of Italy) states that

“The owner of copyright and neighboring rights as well as the right referred to in article 102-bis (3) may use on works or on protected materials efficient technological measures of protection which include all technologies, devices or components that in the ordinary course of their functioning are aimed at preventing or limiting non authorized acts of the owner of the rights”

and that the technological measures of protection are “considered efficacious in case the use of the work or of the protected material is controlled by the owner through the application of a device of access or of a proceeding of protection, such as the encryption, the distortion or any other transformation of the work or of the protected material, in other words, if such use is limited by a mechanism of control of the copies which performs the goal of the protection”.

Art. 171-ter (1)(f-bis), Copyright Law of Italy, in this case considered as the incrimination law, imposes criminal-law penalties on the behavior of the one who, acting for non-personal use and for gain

“creates, imports, distributes, sells, gives on any terms, advertises  the selling or the rent, or owns equipment, products or components for commercial purposes or performs services having as main purpose the non-commercial use of eluding the efficacious technological measures referred to at art. 102-quarter, that are projected, produced, adapted or realized to make possible or easier the elusion of the abovementioned measures”.

Therefore, since the possession of modified consoles or devices is punished if such a possession is aimed at neutralizing with commercial purposes the technological measures of protection (TMP), the Supreme Court affirmed that the case in object sanctions some prodromal behaviors regarding the true copyright infringement.

As a consequence, even if the devices are not on the works or on the protected materials, the mere possession supported by the commercial use of eluding the TMP may be punishable on the basis of an offensive connotation of the behavior itself.

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