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.