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| Photo: Nintendo of America by camknows |
A
Federal Court in Canada found in favour of Nintendo of America Inc. in a
landmark case against Jeramie King and Go Cyber Shopping Ltd. - his associated business
name. It was alleged that the Go Cyber Shopping Ltd. had been selling and
distributing circumvention devices which includes "flashcarts, modchips,
and game copiers". In addition, the business reportedly offered 'hardware
modification services' online and in its store at Waterloo, Ontario. Users of these
devices were able "to override Nintendo’s console security, enabling them
to download and play illegal copies of video game software" thus infringing
on Nintendo’s copyrights and trademarks. (via Nintendo
Wire)
According
to the finding of the court, the distribution of circumvention devices is
illegal based on the novel Canadian Copyright Act’s Anti-Circumvention law. The Court awarded Nintendo $12.76 million
Canadian Dollars against Go Cyber Shopping Ltd., as well as 1 million Canadian
Dollars in punitive damages. Although the Respondents had argued that it
provided other services different to those alleged, the court held that it
failed to provide any supporting evidence of this. The Court also rejected its defences
to the circumvention claims and arguments that its modchips afforded users the
opportunity to play 'hombrew games' which may be used on Nintendo consoles but
which are not owned or licensed by the latter. The Court gave a broad interpretation
to circumvention and adopted a restrictive approach to anti-circumvention
exceptions such as the interoperability exception under Canadian Copyright Law
which it found to be inapplicable due to the infringing activity undertaken by
the Respondents. (via Michael
Geist)
The
Federal Court sitting in Ottawa, Ontario, with The Honourable Mr. Justice
Campbell presiding, gave the following reason for the judgement:
"In 2012, Parliament amended the Copyright Act,
RSC 1985, c C-42 (the Act) to add prohibitions against circumventing
technological protection measures (TPMs) and trafficking in circumvention
devices. In doing so, Parliament explicitly recognized the importance of TPMs
for protecting copyrighted works, particularly in the video game industry. The
present Application engages novel issues arising from this important
legislation." The Court further held that "having regard to
Parliament’s express intent to give copyright owners the power to control
access to works, the principle of technological neutrality, the scheme of the
Act, and the plain meaning of the definitions for TPM and “circumvent”, it is
clear that access control TPMs do not need to employ any barrier to copying in
order to be “effective”.
Reacting
to the decision of the Court, Devon Pritchard, General Counsel /Senior VP Business
Affairs at Nintendo of America stated:
“Nintendo continues to be a leader in bringing
innovative gaming platforms and software to our fans and millions of gamers
across the globe… Nintendo has an established track record that demonstrates
our resolve to protect our iconic characters and franchises. We will continue
to protect the creative works of our developers and vigorously enforce our
intellectual property rights against those that attempt to steal or misuse
them.” (via Nintendo
Wire)
Anti-circumvention
provisions date back to the WIPO Copyright Treaty (WCT). Article 11 requires
member states to "... provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are
used by authors in connection with the exercise of their rights under this
Treaty or the Berne Convention and that restrict acts, in respect of their
works, which are not authorized by the authors concerned or permitted by
law." Article 12 further requires contracting parties to "provide
adequate and effective legal remedies against any person [who] knowingly...
remove[s] or alter[s] any electronic rights management information without
permission; [or]... distribute[s], import[s] for distribution, broadcast or
communicate to the public, without authority, works or copies of works knowing
that electronic rights management information has been removed or altered
without authority.
The Council of Europe also approved the WCT via
Decision 2000/278/EC of 16 March 2000 for European Community States and issued Directive 2001/29/EC [1]to
prohibit devices for circumventing "technical protection measures". Article
6 provides for 'Obligations as
to technological measures' which requires member states to interalia "provide
adequate legal protection against the circumvention of any effective
technological measures, which the person concerned carries out in the
knowledge, or with reasonable grounds to know, that he or she is pursuing that
objective."
This ruling is a big one for Nintendo and it has put
Canada on the map as one of the stricter jurisdictions with regard to prohibiting
the circumvention of technological protection measures
(TPMs) and also a strict approach towards interpreting digital lock exceptions.
This is a good step in the battle against digital piracy and there is likely to
be further advancement in te near future.
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