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The EU court recently ruled that the EU copyright directive:

Article 5(1) of Directive 91/250 must be interpreted as meaning that the lawful purchaser of a computer program is entitled to decompile all or part of that program in order to correct errors affecting its operation, including where the correction consists in disabling a function that is affecting the proper operation of the application of which that program forms a part.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=247056&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=6413406

The way I interpret this ruling is that if a video game has an invasive DRM integrated into it which slows down the performance of the game (which can arguably be called "an error affecting operation") like Denuvo, the person who bought this game in the EU is legally allowed to remove this DRM from the product. Thing is, I'm not a lawyer, so this interpretation may not be accurate at all.

Does this EU court ruling effectively allow paying customers to remove a DRM product which is slowing down their game?

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  • Even if it would (which I cannot answer), this obviously wouldn't make it legal to distribute the version without DRM.
    – PMF
    Oct 10, 2021 at 16:51
  • @PMF No, of course not, but that wasn't the question. In theory, if this was allowed, someone could distribute a manual or script that allows other paying customers to strip the DRM from their paid product for performance reasons.
    – Nzall
    Oct 10, 2021 at 20:06
  • Yes I agree there. Particularly for cases where it's not only about performance, but maybe even about functionality (e.g. because the DRM requires hardware that isn't being sold any more).
    – PMF
    Oct 10, 2021 at 21:00

2 Answers 2

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Not on its face

DRM are a deliberate “feature” of the software and cannot therefore be considered an “error” that the user is entitled to “correct”.

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    And what about the second part? "disabling a function that is affecting the proper operation of the application of which that program forms a part"? You could say the DRM code that's slowing down performance is a function that is affecting the proper operation of the software the DRM forms a part of.
    – Nzall
    Oct 9, 2021 at 21:54
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    The second part starts with “including” meaning it is a subset of “errors”. DRM, no matter how badly performed is not an error.
    – Dale M
    Oct 9, 2021 at 22:57
  • @DaleM What if the DRM is not operational any more (e.g. because a hardware dongle broke or doesn't work with a new computer)?
    – PMF
    Oct 10, 2021 at 21:02
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    @DaleM you appear to miss an important distinction. An error is in operation not substance; it is not the code that is an “error”, but how it comports the intended function. In other words: The entirety of code are parts of the functioning system; the code can be defective and produce errors. It is even true if the DRM works on a stronger machine making it subject to the 2-year legal guarantee. So, even if this part, the DRM, serves a certain function, but impeded others, the consumer, on the face of this precedent, gives broad discretion and protective rights to disable DRM in correction
    – kisspuska
    Oct 11, 2021 at 5:11
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    By the way: “It’s not a bug, it’s a feature.” It’s not a feature if it impedes the ordinary operation which renders the product unmerchantable or analogous in quality under Community Law.
    – kisspuska
    Oct 11, 2021 at 5:16
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Does this EU court ruling effectively allow paying customers to remove a DRM product which is slowing down their game?

It depends on whether (1) the DRM materially impairs the performance of the game, (2) there is no alternative [practical] solution, and (3) the extent of the modification does not go beyond what is necessary. Regarding elements (2) and (3) see paras. 46 and 74 of the ruling, respectively.

As for element (1), materiality would be hard to establish if the DRM's impact happens only during startup. That is because usually the startup phase of a program execution is a very small portion of the entire time a program runs. By contrast, if the effects persist in that the DRM recurrently --and notoriously-- slows down the gaming session, the purchaser's position seems more meritorious.

The DRM serves the provider's interest only, whereas para. 49 reflects that Article 6 of Directive 91/250 is exclusively intended to advance the purchaser's interest. In the context you outline, the purchaser's interest is the video game from a user/enjoyment perspective: the lawful purchaser of the program is entitled "to use it in accordance with its intended purpose", Id. From the lawful purchaser's standpoint, the DRM impairs (i.e., causes errors in) the interoperability between the purchased game and the platform on which it runs and/or the network.

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  • Precisely, Mr. Viggers!
    – kisspuska
    Oct 11, 2021 at 5:13

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