Ohhh Canada we stand on guard for…Nintendoooo. Recently, a Canadian court ruled in favor of the video game giant, awarding them around $12.8 million over a device that let’s users play pirated Nintendo games.
An Ontario-based online store, Go Cyber Shopping (Cyber), which sells sketchy/bootleg accessories for most consoles was selling devices called “game copiers” which allowed pirated Nintendo games to be played on Nintendo consoles. Nintendo alleged that the Cyber’s actions violated the Canadian Copyright Act’s anti-circumvention statute, which, according to the opinion, “prohibit[s] against circumventing technological protection measures and trafficking in circumvention devices.”
Usually, I find myself disagreeing with Nintendo when it comes to their “stances” on copyright protection. But, here I find myself siding with them. This decision is pretty in line with how we interpret our version of DMCA § 1201 (the DMCA’s anti-circumvention statute). A good case to analogize this one to would be Universal City Studios, Inc. v. Corley. There, a person (not Corley) published something called DeCSS, which was a way to bypass DVD CSS encryption. After the writing of DeCSS, Corley, who operates a website and publishes a blog called “The Hacker Quarterly,” publishes the DeCSS code on his website. He was subsequently sued for violating the DMCA’s anti-circumvention statute § 1201 (b)(1) which prohibits the trafficking of devices used to circumvent “protection afforded by a technological measure that effectively protects a right of a copyright owner.”
Cyber argues that the devices they sold were meant to be used by “homebrew” software. Which is the Canadian way for saying third party software NOT originating from Nintendo. The argument reminds me of the argument that Sony made in their case against Universal regarding VTR’s. There, as long as the VTR’s were capable of “substantial non-infringing use,” then they were okay. Sony argued that the consumer purchasing the VCR would use it to copy their own home videos or videos they had permission to copy, which is pretty similar to Cyber’s “homebrew” argument here. But, Im guessing the court realized that you would have to be a pretty sophisticated programmer to make a game playable on Cyber’s “game copiers” and threw out the notion that people are “homebrewing” their own bootleg Nintendo games.
The result of this case is grim for Cyber when it slapped them with a $12.8 million judgment. Hey, it was Canadian dollars so it wasn’t as bad, right??. If you own and operate a website that sells devices that are meant for playing bootleg games, expect the hammer. The case is also pretty in line with American views of anti-circumvention, so nothing extraordinary here, aside from the award to Nintendo. This decision also may be a way for Nintendo to build up some case law and go after emulator operators, which I’m sure Nintendo would LOVE to do. Beware bootleggers, beware.
Author, Martin Passante, is a 2L at Brooklyn Law School. Martin focuses his studies in intellectual property, entertainment, and copyright law especially in the world of YouTube.