LEXPERT MAGAZINE
|
SEPTEMBER 2017 37
| MEDIA PIRACY |
try to keep digital pirates at bay. Nintendo
designed the shape of the cartridge and the
arrangement of the electrical pins to fit spe-
cifically into a corresponding slot on each
of its consoles, the decision says: "Together
they operate much like a lock and key."
e ruling that that was handed down
in March agreed with Nintendo on all
counts. In part of the reasons that has cre-
ated buzz in the IP world, the court held
that the cartridge's shape was part of Nin-
tendo's technological protection measures,
noting: "A burglar who uses an illicitly cop-
ied key to avoid or bypass a lock to access a
house is no less of a burglar than one who
uses a lock pick."
Catherine Lovrics, a partner at Bereskin
& Parr LLP in Toronto, an IP boutique,
says the finding that the shape of a device
or cartridge may constitute a TPM is enor-
mously significant, and moves intellectual
properly law from the world of ideas into
the physical world. "To put it into plain
language I don't know that shape is neces-
sarily technological, but the court accepted
that it was." She calls it "a broad interpreta-
tion of a technological protection measure"
and "a significant one" at that.
Scott Miller of MBM Intellectual Prop-
erty Law LLP in Ottawa calls it "huge."
MBM is the counsel of record for Go Cy-
ber Shopping and Jeramie King. Miller,
who chairs the firm's litigation group, had
occasional communication with opposing
counsel but was not otherwise active on the
file. He spoke only about the implications
of the court's finding, not the case itself.
He says that, while the finding regarding
shape is designed to ward off pirates, it may
also have the effect of preventing standard-
ization of things like phone plugs. "If you
allow that, you prevent the standardization
of industry. ink of it from the consum-
er's point of view, on something like a USB
plug. Does it mean Dell is going to have its
own interface, and Sony another, and Ap-
ple another? What's that going to do? We
have standardization for consumer acces-
sibility. Is this finding going to potentially
open the door to undoing that?"
e court ran out of time aer hearing
Nintendo's first round of arguments in
October, so the hearing was adjourned
until November, at which point the defen-
dants would have a chance to reply. But on
the continuation date, the lawyer for King
and Go Cyber Shopping advised the court
that Nintendo had reached a settlement
with King, as the individual respondent,
on all issues including liability and quan-
tum of damages.
Nintendo's counsel said, regardless of
the settlement with King, it planned to
press on with its case against Go Cyber as
the corporate respondent. Go Cyber's law-
yer advised the court that counsel would
not be attending oral arguments in defence
of the continuing claim, but would rely
solely on written representations first filed
in response to the application.
In that early written response, part of
Go Cyber and King's defence was that they
were offering the devices to help custom-
ers "homebrew" games on their Nintendo
systems. Miller explains that, in general, if
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