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

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

Tue, Mar 7th 2017 11:47am — Tim Cushing

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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Filed Under: anti-circumvention, copyright, homebrew, modchips
Companies: go cyber shopping, nintendo

42 Comments

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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?
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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.
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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.
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Jason, 7 Mar 2017 @ 12:17pm

Re:
Oops. That was meant to be a reply to Ninja at 11:57am.
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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.
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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.
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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.
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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.
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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.
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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.
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Thad, 7 Mar 2017 @ 1:14pm

Re: Re: But was not "Anti-Circumvention" for the defined purposes, it's PRO-PIRACY.
Not if his tune is "If Techdirt's for it then I'm against it."
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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!
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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.
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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.
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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.
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Thad, 7 Mar 2017 @ 2:52pm

Re: Re:
...huh?

I don't think anybody ever claimed Nintendo was "too big to fail". It's not a bank.
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Chort, 7 Mar 2017 @ 5:27pm

Screwdrivers...
are also tools that that *might* lead to infringement.
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I Love Capitalism, 7 Mar 2017 @ 5:31pm

Re: Re:

It's called Crony capitalism.

Crony capitalism beats crony socialism!
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I Love Capitalism, 7 Mar 2017 @ 5:34pm

Re:

yet another 'bought and paid for 'legal system...

So? If you don't like it, go buy your own!
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Anonymous Coward, 7 Mar 2017 @ 5:40pm

Re: Re:
Capitalism, by itself, does not work.
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Anonymous Coward, 7 Mar 2017 @ 5:57pm

Abolish Copyright
Problem solved.
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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.
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Anonymous Coward, 8 Mar 2017 @ 5:39am

every economic system is broken by one thing...
greed
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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.
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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.
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Thad, 8 Mar 2017 @ 10:40am

Re: Re: Re:
And I'd rather have tetanus than ebola. What's your point?
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Thad, 8 Mar 2017 @ 10:41am

Re: Re:
Buy his own legal system? Whuh?
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Thad, 8 Mar 2017 @ 10:41am

Re: Abolish Copyright
There's always one.
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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?
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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.
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Anonymous Coward, 8 Mar 2017 @ 9:55pm

Re: Re: Re: Re:
Capitalism is best!
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Anonymous Coward, 8 Mar 2017 @ 9:57pm

Re: Re: Re:
You socialists want everything free. Sorry, that's not how the world works.
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Anonymous Coward, 8 Mar 2017 @ 10:00pm

Re: Re: Re:
"Capitalism, by itself, does not work."

Well of course not. You need the government to enforce it.
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Anonymous Coward, 8 Mar 2017 @ 10:05pm

Re: Re: Abolish Copyright
Yeah, ain't this shit great? Go copyright!
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Wendy Cockcroft, 9 Mar 2017 @ 5:36am

Re: Re: Re: Re: Re:
Why must we choose between one extreme or another? Why not cherry-pick the best aspects of a range of systems on the basis of whether they're effective in practice or not?

Is it something to do with a team game mentality?
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Wendy Cockcroft, 9 Mar 2017 @ 5:39am

Re: Re: Re: Re:
You keep using that word. I do not think it means what you think it means.

Here, I did a bit of research on the subject to save you the trouble:

https://medium.com/@wendycockcroft/what-has-socialism-done-for-us-4a2d456ab5d0#.rtx34k87f

htt ps://medium.com/@wendycockcroft/what-has-capitalism-done-for-us-8af1af7ce8fb#.i9gaasn1n

https://mediu m.com/@wendycockcroft/what-is-a-liberal-socialist-c6de6584f304#.kfdcp5k50

Have fun! Feel free to debunk me on my own e-spaces. TD is Mike's blog, not mine. I'd rather not derail the thread.
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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.
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Thad, 9 Mar 2017 @ 9:08am

Re: Re: Re: Re:
No, seriously, what the fuck are you talking about, you gibbering gibbon?
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Anonymous Coward, 9 Mar 2017 @ 12:49pm

Re: Re: Re: Re: Re:
You're so easy.
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Anonymous Coward, 9 Mar 2017 @ 11:59pm

Re: Re: Re: Re: Re: Re:
When you can afford to bribe away into a bigger hammer, everything looks like a nail.
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Anonymous Coward, 10 Mar 2017 @ 6:19am

Re: Re: Re: Re: Re: Re: Re:
You say bribe, I say investment. That's capitalism, get over it.
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Anonymous Coward, 11 Mar 2017 @ 5:03pm

Re: Re:
Anti-Circumvention law is from Bill C-11, which was passed by Harper in 2011.
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