Game Over For Canadian Game Copier And Mod Chip Seller

For the first time, the Canadian Federal Court has applied provisions of Canada's Copyright Act ("Act") that were enacted in 2012 to prevent circumvention of digital locks, which are also known as technological protection measures ("TPMs"). The Court's decision is a reminder that: 1) copyrighted works and the TPMs that control access to and copying of them are separately protected in Canada, 2) TPMs in Canada are not limited to electronic measures, and can include the physical features of game cards and other media used to store works, and 3) in appropriate circumstances statutory damages, punitive damages, and injunctive relief are all available to rightsholders when their copyrights are infringed and TPMs circumvented.

Nintendo of America Inc v. Go Cyber Shopping (2005) Ltd et al, 2017 FC 246

The Applicant, Nintendo, is the manufacturer of the Nintendo DS, 3DS and Wii video game consoles. Nintendo's claims were based on two types of copyrighted works: 1) the computer code and data used by Nintendo as part of its TPMs ("Header Data") and 2) the video games developed by Nintendo for use with its video game consoles ("Nintendo Games"), a library of some 585 copyrighted works.

Each DS and 3DS game card manufactured by Nintendo contains two works from the Header Data. The Header Data contains code to display Nintendo's logo (the "Nintendo Logo Data File") and code that must be present in order for the Nintendo DS or 3DS to play the inserted video game (the "DS Header Data" and "3DS Header Data").

The corporate Respondent, Go Cyber Shopping Ltd. ("Go Cyber"), advertised and offered for sale through its website and retail stores "Game Copiers" for Nintendo DS and 3DS consoles that allowed owners to play unauthorized copies of Nintendo DS and 3DS video games. Go Cyber also offered for sale "Mod Chips", an after market internal component installed in Nintendo Wii systems to play unauthorized copies of Wii video games.

Nintendo claimed that the Respondent, by selling the Game Copiers, had circumvented a number of TPMs relating to the Nintendo DS and 3DS devices including: 1) the physical configuration of the DS and 3DS game cards, 2) the boot up security checks via the Header Data, and 3) the encryption and scrambling between the console and the DS or 3DS game card.

On the Wii console, Nintendo claimed circumvention of two TPMs through the sale of the Mod Chips including: 1) a proprietary unique data format for Wii discs, and 2) copy protection...