Today in a the long pending lawsuit the German Ferderal High Court (BGH) reversed a favorable judgment of the Munich Court of Appeal for Nintendo (dated 9 June 2011, ref. 6 U 5037/09) and reffered back the lawsuit to the Court of Appeal (OLG). Although the German Ferderal High Court (BGH) confirmed by its press release that the slot-1 card “is made primarily to circumvent the limitation” and that “the possibility of playing pirated copy was… the relevant economic incentive to buy the adapter”. According to the press release the Munich court did “not examine whether the use of technical protection measure respects the principle of proportionality and legal uses are not limited to excessive manner.” The Munic court is now asked to examine these questions. “Also, the applicant’s claim for damages could not be affirmed on the basis of the findings of the court,” the press release continued. This seems especially bitter because the SR-Tronic GmbH driven into bankruptcy by the enforcement of the judgment at first instance by Nintendo according SR-Tronic’s press release.
Basis of the proceedings was according to the press release a possible “violation of § 95a para. 3 of the Copyright Act. This provision provides for the protection of effective technological measures, which in turn serve the protection of copyrighted works.”