40 LEXPERT MAGAZINE
|
SEPTEMBER 2017
$12.76 million for circumvention of tech-
nological protection measures and copy-
right infringement under the Copyright Act
— it's that damage calculation that also has
many in the IP community talking.
ere's no clear wording in the Copyright
Act explaining how statutory damages for
the circumvention of TPMs should be cal-
culated. eoretically, it could be a matter
of taking the statutory amount, which is
between $500 and $20,000 per violation,
and multiplying it by the number of TPMs
the guilty party circumvented, which in
Justice Campbell wrote that in order to
fairly acknowledge the "precise, clear, well
supported, and effectively uncontested
final argument prepared by Nintendo's
counsel, with which I fully agree," Ninten-
do was entitled to have its final argument
used as his reasons for decision in the liti-
gation. (Providing reasons in support of a
decision where one side essentially sits out
a trial can be challenging for a judge, who
is expected to be the equivalent of a layman
on the intricacies of the subject, as he or she
hears arguments from just one side.)
He ordered Go Cyber to pay Nintendo
this case would have been the
three: one for Nintendo's DS,
one for its 3DS, and one for
its Wii consoles. Or the court
could choose to multiply the
amount by the number of
copyrighted works that could
potentially be accessed as a re-
sult of the circumvention — in
this case 585 games.
e court decided on the
latter route of 585 games and
assessed the maximum allow-
able damages of $20,000 each.
"What the court said is, you
don't actually have to have
used the infringing work, it's
enough if you had access to it,"
says Miller of MBM. "at is
huge because what they're say-
ing is, if you have 1,000 games,
we're going to give you dam-
ages for 1,000 games, not just
for the code. e implication
of the decision might be greater
than standard straight copy-
right infringement because you
don't have to prove there was
infringement of the underly-
ing work, only that there was
access to the underlying work.
at's massive."
e court ordered Go Cyber
to pay $11.7 million in statuto-
ry damages for circumventing
the TPMs, $60,000 for copy-
right violations of the header
data, and $1 million in puni-
tive damages.
Kevin Sartorio, an IP litiga-
tor who heads the IP depart-
ment at Gowling WLG (Can-
ada) LLP in Toronto, says it is likely that
Nintendo argued for the more punitive
route for the precedential and deterrence
value. He says the company clearly wanted
to deliver a message to pirates, or prospec-
tive pirates. "ey wanted to say that, if
you're going to traffic in the technology
that allows other people to access our port-
folio of titles, then you're going to expose
yourself to the risk the court is going to as-
sess statutory damages based on what you
provided them access to — not just what
you're physically handing over at the time
of the transfer."
| MEDIA PIRACY |
PHOTO:
SHUTTERSTOCK
