NINTENDO V. JERAMIE KING & GO CYBER SHOPPING LTD.

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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[1] Also known as the Information Society Directive

GOOGLE & BING AGREE TO VOLUNTARY CODE OF PRACTICE TO DEMOTE COPYRIGHT INFRINGING SITES IN UK SEARCH RESULTS

Digital Piracy. Photo: E+/Getty Creative

Google and Bing have agreed to a 'voluntary code of practice' with the aim of limiting the ability of users to visit sites with infringing content once notified from the rights holders. Under this novel UK code, users will experience difficulty in searching for 'pirated films, music and illegally streamed live football matches'. The goal is to demote illegal sites and direct users who search for content to bona fide providers instead.

The Intellectual Property Office (IPO) reportedly assisted by the Department for Culture, Media and Sport campaigned for the introduction of the Code.  OFCOM also supported discussions on proposals on the manner of presenting search results to users and possible techniques and metrics to discourage UK consumers from accessing illegal content. It is hoped that the agreement will work alongside other 'anti-piracy measures against online infringement such as court ordered site blocking, working with brands to reduce advertising on illegal sites and the Get it Right From A Genuine Site consumer education campaign, which encourages fans to value the creative process and directs them to legal sources of content.' (via The Inquirer)

Many stakeholders have expressed optimism on the code and are looking forward to its implementation from 1 June 2017. Stan McCoy, of the Motion Picture Association in Europe, said: “Pirate websites are currently much too easy to find via search, so we appreciate the parties’ willingness to try to improve that situation...We look forward to working on this initiative alongside many other approaches to fighting online piracy, such as the Get it Right campaign that aims to help educate consumers about the many ways to enjoy film and television content legally and at the time of their choosing.” Geoff Taylor, chief executive of BPI added that "The code will not be a silver bullet fix, but it will mean that illegal sites are demoted more quickly from search results and that fans searching for music are more likely to find a fair site.” (via The Guardian) 

Meanwhile, it has been reported that the UK government has shelved plans to enforce an 'anti-piracy' law on search engines based on the agreed code. The government has removed an anti-piracy amendment made to the Digital Economy Bill that would have forced the search firms to take action on 'pirated' content. The code won't be applicable to all search services, especially those not covered by English law and if it fails to succeed, the government may likely go back to the drawing board. The IPO will observe Google and Bing's compliance over the next few months and make additional recommendations if deemed necessary.

In recent debates on the Digital Economy Bill in the House of Lords, Baroness Peta Buscombe stated: "Since the idea was last discussed in [parliament], Intellectual Property Office officials have chaired a further round-table meeting between search engines and representatives of the creative industries...While there are still elements of detail to be settled, the group is now agreed on the key content of the code and I expect an agreement to be reached very soon. All parties have also agreed that the code should take effect, and the targets in it be reached, by 1 June this year."

It would be interesting to see how the implementation of the code plays out and how effective it is in addressing the issue of infringement and digital piracy. If it proves successful, the measures can possibly be adopted in other countries or regions to curb this global issue.

BEYONCÉ SUED FOR COPYRIGHT INFRINGEMENT

Photo: Forbes- Duane Prokop/Getty Images

Messy Mya (Photo: YouTube)

The estate of late Messy Mya (Anthony Barre) has filed a lawsuit in New Orleans against renowned singer Beyoncé Knowles for copyright infringement by the latter. The claim alleges that the diva's 'sampled' and 'included' the late rapper's voice from "A 27 Piece Huh" and "Booking the Hoes from New Wildings" in her hit song "Formation" (on her "Lemonade" album) without acquiring the requisite permission from the family. 

The suit was filed in the US District Court in the Eastern District of Louisiana, claiming several "protectable copyright interests in the musical composition and sound recording of Anthony Barre's original and unique works of performance art." (via NLIPW)

The New Orleans Times-Picayune reports the following as the unlawful uses of the Messy Mya's work in the suit:

• "Messy Mya’s voice saying “What happened at the New Orleans?” and “B—- I’m back by popular demand” in the openings for both the audio and video recordings of “Formation.” Later in Beyoncé’s song and video, Messy Mya’s voice can be heard saying “Oh yeah baby. I like that.”
• During the Formation World Tour, Messy Mya’s voice was heard saying “Oh yeah baby, I like that,” when Beyoncé “and the other performers move from one area of the stage to another” about four minutes into the show, the suit said. 
• Messy Mya’s words, “B—- I’m back by popular demand” were imitated by Big Freedia during the opening to performances of the Formation World Tour in New Orleans and Houston. In other cities on the tour, the words were imitated by male performers."

 

The lawsuit alleges that these sampled words 'create the tone, mood, setting and location of the New Orleans-themed 'Formation' video and audio recordings', including live performances of the song in the artiste's '2016 Formation World Tour Concerts'.  It also alleges that the sample was "blatant in both scale and degree" and Mya "has received nothing — no acknowledgment, no credit, no remuneration of any kind." This is despite their attempts to contact the artiste to include the appropriate credits.  

Sony Music, video director Melina Mastoukas and the publishers of the song and the studio album, have been added as defendants in the suit by Angela Barre, the late rapper's sister and sole heir.  The sum of $20 million has also been demanded by the attorneys in royalties and damages for “wilful copyright infringement, false endorsement, unfair trade practices and unjust enrichment”. 

The late rapper had died in 2010 after being shot in New Orleans. It is claimed that the video for “Formation” was 'a politically-charged ode to Black Lives Matter'. The court will have to determine whether Beyoncé's use of the rapper's voice could constitute fair use, a homage or political ode, especially with the issue of non-acknowledgement and great profit from the very successful Grammy-nominated single.  S.107 of the US Copyright Act provides for the defence of fair use which includes purposes such as criticism, comments, education, research, reporting of news and current events etc.  These issues of commercial gain and non-acknowledgment may not be easily ignored and is likely to be considered by the Judge in making this determination should the case goes on.  Nevertheless, the case seems to have all the ingredients for a good out of court settlement, especially as the diva's focus is set on her expected twins. It would be good to see the outcome of this suit.