Lexpert Magazine

42 LEXPERT MAGAZINE | SEPTEMBER 2017 He believes the decision and damage award sends a signal internationally that, when it comes to internet piracy, Canada "is trending in the right direction." In terms of the precedent, the fact that the case was not fully defended may prove to be its Achilles' heel, he and other say. "e next time a case with a similar fact pattern gets before the Federal Court, but there is a defendant with more successful access to legal resources who wishes to put forward more robust arguments, this case is not going to be used by a subsequent judge to say, 'e issue's already been decided,'" Sartorio says. "A subsequent judge will look to the Nintendo case and they will be aware that it doesn't appear to have been robustly con- tested, so it may be that some of the more sophisticated legal arguments including as to whether the shaping of your discs and how they fit into your console is a techno- logical protection measure … may possibly result in a modestly revised opinion." But Sartorio also makes it clear that Jus- tice Campbell and his approach, which he characterizes as being very much in sup- port of IP owners, "is something I think other judges would take as a starting point, because it is very clear that, in its 2012 amendments, Parliament intended these changes in the Act to come in as very broad enforcement mechanisms." He doesn't believe subsequent judges are going to be looking for ways to eviscerate Justice Campbell's ruling. "I don't think the court is likely to be sympathetic and bend over backwards to look for creative ways to nar- row the reading." Parliament is preparing to conduct its statutorily mandated five-year review of the law later this year, and those involved will almost certainly be looking at Nintendo, says Jennifer Davidson of Deeth Williams Wall. "is decision is the only opportu- nity they have to look at how the court will interpret the Act — unless something else comes up. It's a rather wide interpretation, so I think Parliament will look at whether that was their intent when they put forth this provision." Despite a ruling overwhelmingly in its fa- vour, Nintendo is unlikely to ever see that $12.76 million award — not from a single- man operation in Waterloo, Ont. A private settlement was reached, and the terms were not disclosed — but the per- sonal settlement Nintendo reached with King is public and suggests he is not swim- ming in money. An order issued March 23 signed by Justice Richard Southcott notes King had been ordered three weeks earlier to pay Nintendo $70,000, of which $45,000 "remains due and unpaid." He or- dered the amount be secured against King's Waterloo condominium. Catherine Lovrics of Bereskin & Parr says that, when you put the Go Cyber damage award and the personal settlement order side by side, "reading between the lines, it looks to me like they settled with the personal defendant, but the case went forward against the corporate defendant not really expecting to collect. e quan- tum of damages against the defendant is staggering from a precedential perspective, and is significant — especially in Canada, where we don't see these huge, huge awards. But in terms of whether or not Nintendo is actually planning on collecting against the corporate defendant, the answer is likely no. I believe that the case went forward for the sake of determining the law." | MEDIA PIRACY | One of the most unusual aspects of the Federal Court's recent decision in Nintendo v. King is not technical: it's the court's deci- sion to allow Nintendo to write the reasons for its own judgment — a judgment that sets important precedent in the area of copyright law and digital protection measures. While it's not unheard of for judges to "copy and paste" particular sections of one side or the other's arguments into their reasons, in Nintendo, Justice Colin Campbell invited the video game company's counsel to write its final arguments as if they would be the entire reasons for his decision because he felt the company made a compelling case. Also, defendant Go Cyber Shopping Ltd. of Waterloo, Ont., did not participate in the trial by making oral arguments, submitting affidavit evidence or cross-examining witnesses. Bruce Green, an IP lawyer at Oyen Wiggs Green & Mutala LLP in Vancouver, says the optics of permitting Nintendo to write the reasons may "come off as a big power- ful plaintiff allowed to rubberstamp their own ruling," but he says it was a good case to test of Canada's new technological protection measures, and it was not Ninten- do's fault the case was not fully defended. Several lawyers say that, had a full defence been mounted, the result — especially on damages and possibly on shape — may have been different. The assumption is that Go Cyber couldn't afford to pay lawyers to finance a major piece of corporate intellectual property litigation. Green believes as more of these cases involving small-time media pirates come up, amicus curiae (or "friends of the court") as well as interveners will step forward to help assure a more balanced outcome. "There may also be some software associa- tion that jumps into the fray, for example, because there may be some issues arising from the case that could affect software companies in an unexpected way." As for the $12.76-million damage award, the court could have taken proportionality into account — had it been argued. Someone who earned $10,000 from a copyright infringement may face a very different damage award than someone who earned $10 million. In Nintendo, however, no such evidence was presented. THE DOMINANT ARGUMENT Nintendo's claims were undefended, but future decisions may be more balanced Sandra Rubin is a Toronto-based writer and strategic consultant.

• cover
• Front
• big
• back