Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/864045
38 LEXPERT MAGAZINE | SEPTEMBER 2017 you have a console and want to design or "homebrew" your own games, a gaming company may not have any problem with that. "It's essentially the ability to make games for a console that the company itself has not made." But in its reasons, the Federal Court rul- ing shot that defence down, saying the only mention of "homebrew" on Go Cyber's website was that it had "no homebrew at the moment," and the company also failed to present any evidence that any users ac- tually did use their services or devices for that specific purpose. Despite Go Cyber's decision not to par- ticipate in the continuing proceedings, Nintendo aggressively argued its claims. It tendered extensive affidavit evidence from three expert witnesses. Go Cyber filed no evidence and did not cross-examine any of the witnesses, instead arguing — "unsup- ported by evidence," as the decision notes — that, at the end of the day, Nintendo had failed to prove its case. Justice Campbell was clearly not im- pressed with Go Cyber's decision not to present or respond to any evidence against it. While the burden of proof always falls on the plaintiff, and a defendant can elect not to submit evidence and later argue that the claim on a balance of probability has not been proven, Justice Camp- bell noted in his decision that "an adverse inference may be drawn from a party's failure to lead evidence that was in its power to produce." Ultimately, Justice Campbell concluded that Nintendo's evidence stood "uncontradicted and unchal- lenged, and in my opinion, is unassailable in fully proving the claims made." e judge also explained his rationale for using Nintendo's counsel to write the reasons. He noted that Nintendo had an interest in developing the law around the new technical protection measures: their cir- cumvention, statutory damages, and enforcement measures, to the benefit of the industry both in Canada and globally. Given the high precedential value of this expect- ed outcome, and "at my request," he says, Nintendo's lawyers agreed to supply a final consolidated written argument stating the terms that the company would want to form the substance of the final determina- tion of the litigation. Nintendo's consolidated written argu- ment was filed and served on Go Cyber's lawyers to allow for a reply. One was pro- vided. In a letter just before Christmas, the court received a note that said: "kindly be advised that the Respondent will not be fil- ing additional representations …" PHOTO: SHUTTERSTOCK | MEDIA PIRACY | BRUCE GREEN OYEN WIGGS GREEN & MUTALA LLP "[Permitting Nintendo to write the reasons for the decision may] come off as a big powerful plaintiff allowed to rubberstamp their own ruling, [but it's a good test case for technological protection measures.] … There may [also] be some issues arising from the case that could affect software companies …"