Lexpert Magazine

36 LEXPERT MAGAZINE | SEPTEMBER 2017 injunction preventing the retailer from continuing to do so. Less than two weeks aer Canada was criticized in the IIPA report, Justice Co- lin Campbell released his ruling in Nin- tendo v. King (2017 FC 246), wherein he found the Ontario retailer guilty of sell- ing illegal circumvention soware and of copyright infringement. It's a decision that's making legal ex- perts stand up and take notice. Firing a shot across the bow at would-be pirates, the decision holds that proving actual in- fringement of copyright is not necessary for an award of statutory damages for TPM circumvention. It also takes the harshest possible view on calculating statutory dam- ages, awarding Nintendo $12.76 million. Many pirates are small-timers who op- erate online stores out of their basements. ese people probably never think about the high cost of paying to defend them- selves, nor the possibility of a court award taking away everything they have if they get caught — but they should, says Jennifer Davidson, an associate at Deeth Williams Wall LLP. "is was a warning." As a precedential decision, the reasons — written by Nintendo's counsel at the court's request — address some novel and important issues in Canadian copyright law including the scope of the anti-circum- vention rules, what constitutes a techno- logical protection measure, and the way damages will be calculated for wronged copyright owners. While the decision answers several ques- tions, it also raises a few. For instance, what can be considered "technology" in a TPM, and can we expect more instances in the realm of piracy and new technology in which the reasons are written by the ap- plicant company itself? (Smart & Biggar, which acted for Nintendo, declined an in- terview request.) By the time Nintendo was over, the mes- sage on TPMs couldn't have been clearer: in a fast-changing digital universe, going forward, pirates using Canada as a base can expect the country's courts to apply the new anti-piracy laws to the maximum. Nintendo centred on the technological protection measures the company uses to keep to digital pirates out of its copyrighted video games on its various consoles: the DS, 3DS and Wii. TPMs are also used by Sony, Microso, Apple and a broad array of soware makers, as well corporations that use pay walls or require licences to access online material. "ey're designed to keep pirates out of the digital vault," says David- son — that means people who sell or share pirated soware, video games, films, songs, movies or e-books online. Do TPMs always work, especially with each generation of kids getting more tech- nologically literate? No, they do not. e question is what happens when pirates are caught, and thanks to Nintendo, Canada finally has some answers. e case didn't really got going until Oc- tober with an application hearing before Justice Campbell. In its statement of claim, Nintendo argued that Go Cyber Shop- ping., which had a store and a website, was breaking the law by allowing people to use game copiers to play illegally downloaded copies of its games on its handheld DS and 3DS consoles. Go Cyber also carried on business at its store and online as Modchip Central Ltd., selling the mod chips and kits to play pirated games on the company's Wii home video game console. Go Cyber even offered mod-chip installation services. Jeramie Douglas King is listed as Go Cy- ber's sole officer and director. It's not as though the retailer was dis- creet about its activities, the decision not- ed. In fact, it actively promoted its products through social media. It issued product announcements, engaged in discussions on social media regarding the status of new product shipments, and it took pre-orders for next-generation devices. e company openly used the term "Game Copiers" to refer to such devices. Nintendo was asking for statutory dam- ages and an injunction. It argued that Go Cyber advertised and sold 10 models of game copiers, mod chips, kits and tools spe- cifically designed to circumvent the TPMs installed on its three gaming consoles. e way a game copier works is, you put an illegally downloaded copy of a Ninten- do game on to a memory stick, put the stick into the game copier and insert the copier into the Nintendo console. e Game Copier mimics the proprietary game car- tridge by using its header data — code that shows the Nintendo logo and also provides the code, data, encryption and scrambling technologies that form the technological protections that tell the console this is a le- gitimate Nintendo game. e fake cartridge also mimics the spe- cific cartridge shape Nintendo designed to KEVIN SARTORIO GOWLING WLG (CANADA) LLP "It is very clear that in its 2012 amendments Parliament intended these changes in the Act to come in as very broad enforcement mechanisms. … I don't think [future decisions are] likely to be sympathetic and bend over backwards to look for creative ways to narrow the reading." | MEDIA PIRACY |

• cover
• Front
• big
• back