On March 1, 2017, the Federal Court of Canada (FC) awarded Nintendo $12.7 million in damages in Nintendo of America Inc v King et al, 2017 FC 246. This ruling marks the first occasion for the FC to consider the issue of circumvention of Technical Protection Measures (TPMs) under the Copyright Act.

The dispute concerned three of Nintendo’s game consoles (Nintendo DS, 3DS and Wii). The Defendant was found to have sold and installed digital lock circumvention devices that mimicked Nintendo’s proprietary hardware and code to allow end users to play illegally downloaded video games. The FC found that the defendant was liable for trafficking and installation of TPM circumvention devices, and for primary and secondary copyright infringement.

The FC’s discussion on TPMs brought new clarity into the treatment of digital locks in three important areas:

  1. TPMs can include a physical configuration. Nintendo’s game cards act as a digital lock in its unique physical shape and the way the card marries into the console like a lock and key;
  2. Circumvention of TPMs include the replication of the TPMs. The FC accepted that the definition of circumvention is wide and that many forms of circumvention, including physical replication, are to be considered;
  3. The interoperability defence cannot succeed where the defendant is unable to meet their evidentiary burden to demonstrate that the device is used for non-licenced third party software (homebrew) applications.

Summary By: Jennifer Davidson

E-TIPS® ISSUE

17 03 08