Canadian Court Chips Away At Anti-Circumvention Exceptions In Massive Win For Nintendo

from the shifting-more-power-to-the-powerful dept

The first major ruling [PDF] by a Canadian court applying the country's anti-circumvention laws has been handed down and it's not good news. The law provides for a few exceptions to its broad restrictions on bypassing technological protection mechanisms (TPMs), but as the court sees it, any anti-circumvention process that might lead to infringement violates the statute.

Not that the courts have done a great job interpreting the law to this point. In 2015, a Canadian judge ruled that simply asking for a copy of a paywalled article was illegal circumvention. The lawsuit at hand -- reported by Michael Geist -- isn't a great test case for exploring the outer limits of the anti-circumvention law. But the conclusions reached have severely negative implications for others not quite so entangled in facilitating infringement.

Go Cyber Shopping made mod chips for Nintendo products that allowed users to bypass built-in protections to play "homebrew" games and, of course, pirated carts. Go Cyber defended its products by attempting to highlight the "homebrew" aspect, rather than the chip's ability to defeat Nintendo's copyright protection schemes. As is to be expected, Nintendo's lawyers did a far better job presenting their case than Go Cyber's did.

Go Cyber Shopping offered a wide range of products that allow users to circumvent the digital lock controls on the Nintendo gaming console (such as the Wii) and play unauthorized games including “homebrew” games. Go Cyber Shopping argued that it provided other services but the court says that it did not tender any evidence in that regard.

Even if Go Cyber had done a better job presenting its case, it's unlikely the court would have sided with it. As Geist points out, the court went out of its way to address arguments not even raised by the defendant in order to bolster anti-circumvention laws.

It adopted a broad interpretation of a technological protection measure – rejecting a UK case that used a narrower interpretation – in favour of an approach that covers access controls that go beyond restrictions on copying. It states:

having regard to Parliament’s express intent to give copyright owners the power to control access to works, the principle of technological neutrality, the scheme of the Act, and the plain meaning of the definitions for TPM and “circumvent”, it is clear that access control TPMs do not need to employ any barrier to copying in order to be “effective”.

In other words, Canadian copyright law is no longer just about copying as the digital lock rules create legal rights to limit access even without any actual copying.

Going beyond that, the court basically declares that interoperability efforts should be left to manufacturers only. Third parties who bypass circumvention for these purposes are likely to end up in Go Cyber's incredibly expensive shoes. But that's a concerning conclusion to reach, because it could end up doing damage to existing anti-circumvention exceptions.

[T]here are currently anti-circumvention exceptions for access to materials for the visually impaired, to protect personal information, and for security research. Those exceptions should not be dismissed simply because there may be alternate ways to safeguard privacy or conduct security research. Indeed, the use of circumvention may be a necessity given the possibility that companies could offer opportunities for third-party security research but subject to restrictions or conditions that limit the effectiveness of the research activity.

But that's how the law is interpreted in the Federal Court of Canada. Lawful anti-circumvention efforts took some collateral damage, but Go Cyber Shopping is headed to a burial in a pauper's grave. The court awarded Nintendo the maximum amount ($11,000) per infringement, and another $1 million for its pain. Go Cyber now has to come up with $12.7 million it certainly doesn't have.

As for the Canadian public, it's suffered a loss. The determinations made in this opinion make it that much more difficult to truly own what they've purchased. Anti-circumvention statutes have been bolstered and anything that could be construed as leading to possible infringement is now a plausible litigation target.


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  • icon
    hij (profile), 7 Mar 2017 @ 11:56am

    Are they borrowing my money?

    Every time I think about purchasing a Nintendo product they find a way to remind me why I should not. Perhaps I should let them borrow my money while I borrow one of their shinies? Surely they would be happy to let me add restrictions on what they do with my money?

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 7 Mar 2017 @ 11:57am

    Meanwhile people couldn't care less and modding carries on as if nothing happened. Because other countries. Still, it would be safer for consumers if they could rely on a local or well known manufacturer.

    Even this could be made less appealing if games didn't cost a kidney and an eye and we had all-you-can-eat subscription models (like Netflix but for games). But hey, maybe I'm crazy and Netflix is a huge success because some other obscure reason. But why make a ton of money in the long run if I can make 10% of it RIGHT NOW.

    reply to this | link to this | view in chronology ]

  • identicon
    Jason, 7 Mar 2017 @ 12:16pm

    But why make a ton of money in the long run if I can make 10% of it RIGHT NOW.

    Too many market analysts only care about 'right now' (plus or minus three fiscal quarters). The "long run" is too often an afterthought, if it's thought of at all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2017 @ 12:19pm

    But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

    But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

    You even note that, oh so slyly: "of course, pirated carts". Yeah, that was likely sole purpose, which is why the defense was so weak. In court, legalistic arguments just don't fly. You really need to learn so aren't surprised that nearly all court cases refute piracy.

    I used to abhor hardware lock-up, but you pirates REALLY make the case for it. And so far, hasn't actually troubled me.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 7 Mar 2017 @ 12:20pm

    But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

    But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

    You even note that, oh so slyly: "of course, pirated carts". Yeah, that was likely sole purpose, which is why the defense was so weak. In court, legalistic arguments just don't fly. You really need to learn so aren't surprised that nearly all court cases refute piracy.

    I used to abhor hardware lock-up, but you pirates REALLY make the case for it. And so far, hasn't actually troubled me.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Mar 2017 @ 12:43pm

      Re: But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

      "I used to abhor hardware lock-up, but you pirates REALLY make the case for it. And so far, hasn't actually troubled me."

      You try playing carts from other regions that won't come out in yours recently? You change your tune pretty damn fast.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Mar 2017 @ 2:22pm

      Re: But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

      Have you ever thought that DRM and anti-circumvention along with locked hardware is not a good anti-piracy approach, as it only takes one person to crack the DRM for it to be cracked for everybody. No, this technology has more to do with vendors being able to disable products at a whim to try and drive more sales.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Mar 2017 @ 2:40am

      Re: But was not

      You hit it exactly. The limited exceptions for circumventing protections are just that, limited. Go cyber had a limited defense mostly because they probably couldn't find more than a one good example. It appears that the rest of the business was yeah piracy.

      Hard to defend the obvious.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2017 @ 12:33pm

    Sadly, Nintendo has proven to be VERY anti-consumer and anti-fan in recent years with it's content and IP. Host a Pokemon-themed party? SHUT THAT SHIT DOWN.

    Use footage from a Nintendo game even if it falls within Fair Use? Content ID'ed.

    Create fanmade games based on Nintendo properties? C&D coming your way!


    Honestly, if Nintendo is going to treat it's fans like shit then they're making the case to pirate their games. This isn't to say none of the isn't within their right to do so but it's still pretty dickish of them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Mar 2017 @ 12:37pm

      Re:

      Create fanmade games based on Nintendo properties? C&D coming your way!

      When considered alongside Nintendo's neglect of the "Metroid" franchise, this one really hurts.

      reply to this | link to this | view in chronology ]

    • identicon
      Thad, 7 Mar 2017 @ 1:12pm

      Re:

      Host a Pokemon-themed party? SHUT THAT SHIT DOWN.

      Technically Nintendo is a minority owner in Pokemon and it was The Pokemon Company (which is run as a separate entity) that made that call.

      But the rest of your examples are spot-on.

      reply to this | link to this | view in chronology ]

    • identicon
      Sortinghat, 7 Mar 2017 @ 2:19pm

      Re:

      It's called Crony capitalism. These companies are too big to fail and need to be busted up. It's not just Nintendo that's the problem but the whole global elite system.

      Which is why a certain President has had it with the whole gambit or so he claims.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2017 @ 2:04pm

    yet another 'bought and paid for 'legal system, in office purely to benefit the various members of the entertainment industries and totally screw the members of the public!

    reply to this | link to this | view in chronology ]

  • identicon
    Sortinghat, 7 Mar 2017 @ 2:17pm

    I'm not surprised Go Cyber lost against the monopolies. This is what Trump is or should be about busting up too big to fail corporations to give little guys a chance.

    Now that Trump has seen what wiretapping is like *did he already know before?* hopefully it's a wake up call for him on our privacy rights being ate up.

    What we are seeing now used to be only war time measures when we are under direct attack or the threat of a direct attack.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Mar 2017 @ 8:32pm

      Re:

      "I'm not surprised Go Cyber lost against the monopolies. This is what Trump is or should be about busting up too big to fail corporations to give little guys a chance."

      Except this case was decided in Canada, where Trump has no jurisdiction (regardless of whether he's aware that Canada isn't the 51st state or not). Not that he would appreciate the details of this case anyway, as he's 70 years old and understands very little about computers besides "the cyber is much more bigly than we know, believe me, it's yuge" and knows f*ck-all about IP except how to make money by slapping his name on gaudy hotels and overpriced pink-slime steaks.

      As for Canada, the guy in charge right now is a poor man's Rob Lowe who is about as qualified to hold political office as the actual pretty-boy actor who played Sam Seaborn on TV. He is a clueless heir to the throne, preoccupied with taking selfies and sending virtue-signaling subtweets about Trump's erratic immigration policies -- without actually doing anything in terms of legislation to clarify what exactly his country is supposed to do about the irregular migrants trekking through the snow from Minnesota into Manitoba. The biggest item on Justin's docket right now? "Dude weed LMAO".

      Now, don't get me wrong, he "gets" tech a little more than Trump (because he's half Trump's age and something of a wannabe "geek"), but not by much; he can memorize a Wikipedia article about quantum computers for a rehearsed Internet meme, make noise about Blackberry needing to hire more women "because it's 2017," and pay visit to a classroom that's building a BB-8 with a Raspberry Pi because he loves Star Wars so much. But as for this case, no, I seriously don't think the finer nuances of intellectual property law register on Justin's radar at all. It's not "sexy." Cue Right Said Fred song.

      reply to this | link to this | view in chronology ]

  • identicon
    Chort, 7 Mar 2017 @ 5:27pm

    Screwdrivers...

    are also tools that that *might* lead to infringement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2017 @ 5:57pm

    Abolish Copyright

    Problem solved.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Mar 2017 @ 5:39am

    every economic system is broken by one thing...

    greed

    reply to this | link to this | view in chronology ]

  • identicon
    Jacob Johnson, 8 Mar 2017 @ 6:11am

    Courts...

    We are the customers. As such, we have more power than the court. If you decide to punish us as a company, we punish you.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Mar 2017 @ 7:20am

    Techdirt Uncensored: But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

    You even note that, oh so slyly: "of course, pirated carts". Yeah, that was likely sole purpose, which is why the defense was so weak. In court, legalistic arguments just don't fly. You really need to learn so aren't surprised that nearly all court cases refute piracy.

    I used to abhor hardware lock-up, but you pirates REALLY make the case for it. And so far, hasn't actually troubled me.

    Renewed on the site that loves "free speech" if agrees with the pirate, and censors all other.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 8 Mar 2017 @ 10:42am

      Re: Techdirt Uncensored: But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

      In court, legalistic arguments just don't fly.

      Huh?

      No, really, what?

      reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 9 Mar 2017 @ 5:43am

        Re: Re: Techdirt Uncensored: But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.

        Report and move on. If we keep on hiding his comments and stop responding to him he'll eventually give up and go away.

        A girl can dream.

        Look, Mike-hater, your arguments are illogical and add nothing of value to the comments. That's why I always hit the report button when I see them. If, like a stopped clock, you're occasionally right, I'll hit the Insightful button (it has been known to happen), but you ain't gonna get a positive vote for what is basically nutty vitriol. Either stop licking toads before you post or move along.

        reply to this | link to this | view in chronology ]


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