Nintendo successfully wins a ‘Circumvention Case’ against an Online Retailer (Go Cyber) in Canada!
A long dragging Court Case between the Japanese Gaming Company Nintendo and Canadian Online Game Shop Go Cyber Shopping (2005) Limited, that started with an application to the court in February 2016. Therefore, years after the final judgement on the case have come. This is interesting because of the law of copyright and the sharing of content. This also provides the legislation for the providers of technology and games towards the ones who sell it in public.
If you don’t know the other company that was sued or taken to court by Nintendo, let the application spell it out:
“The Respondent, Go Cyber Shopping (2005) Ltd., is a registered Ontario corporation. It operates a retail location in Waterloo, Ontario and several commercial websites including http://www.gocybershopping.com and http://www.gocybershop.ca. The Respondent also appears to carry on business under the name “Modchip Central Ltd.” (which is neither a registered corporation nor business name) through the same retail location and through the website http://www.modchipcentral.com (Affidavit of Robert Hunter, “Hunter”, Applicant’s Record, pp. 1088-1091)” (Federal Court of Canada, 2017).
So the corporation that Nintendo is taking to court is provider or retailer of games online. Those are important for all sales of games these days, not only in shops on main-street, but also buys online and get it delivered or downloaded by second party. Therefore, Nintendo had to react to Go Cyber Shopping Limited as they we’re trading and selling games in ways that altered the main use of it or even added own settings on it. Like selling one unit with dozens of games to Consoles and Game Stations that we’re produced and licenced products of Nintendo. Therefore, this case is important to consumers as much as retailer. This case proves certain truths on selling altered products and the legality of it. Like it is allowed to sell empty cassettes, but not selling recorded music on it from radio, unless the cassette already we’re made for the recording artist and the tracks produced for it. The same seems to be when it comes to games and retailers possibility of selling it.
“In 2012, Parliament amended the Copyright Act, RSC 1985, c C-42 (the Act) to add prohibitions against circumventing technological protection measures (TPMs) and trafficking in circumvention devices. In doing so, Parliament explicitly recognized the importance of TPMs for protecting copyrighted works, particularly in the video game industry. The present Application engages novel issues arising from this important legislation” (Federal Court of Canada, 2017).
This here is the actual law that applied to this court case and sets the precedence of what is allowed and what that complies for retailer and for the Video Game industry, which Nintendo is one of the big corporations. Therefore, the reasonable judgement and understanding of what the retailer did puts forward the groundworks for other cases.
To put more forward what Go Cyber did:
“The Applicant also sells hundreds of video games for its consoles in Canada. These video games are sold as game cards (in the case of DS and 3DS games) and discs (in the case of Wii games). Purchasers of genuine Nintendo video games can play these games on the appropriate Nintendo console by inserting the game card or disc into the corresponding console. The Applicant does not and has never authorized downloading of its games onto devices that mimic its game cards or discs and which circumvent its TPMs (Rhoads 1, Applicant’s Record, p. 83)” (Federal Court of Canada, 2017).
So early in the Court the proof that Go Cyber went on to sell games that was mimicking and not direct licenced video games to the consumers that also shows altering with the product possibly sold to use and gamer. This is act of aggression towards the Nintendo and their parties who has produced and made the games with their agreements of trading these as the royalties and profits cannot have come to Nintendo and the makers of these games.
What the Go Cyber has altered:
“Each genuine game card sold by the Applicant contains two of the Header Data works. Authorized DS game cards each contain a copy of the DS Header Data and the Nintendo Logo Data File. Authorized 3DS game cards each contain a copy of the 3DS Header Data and the Nintendo Logo Data File “(Federal Court of Canada, 2017).
This might seem like small details, but the proof of legit and real video games these features are supposed to be on it. If not than the consumer has bought counterfeit and fake ones, that might be similar to the original ones, but the disc, the game cards might been manufactured in other facilities than the licenced produced ones from Nintendo.
They also did this:
“Since at least 2013, the Respondent has advertised and offered for sale, either through its websites or at its retail store, certain devices which the Applicant contends are designed to circumvent TPMs employed on the Applicant’s Nintendo DS, 3DS, and Wii gaming consoles” (Federal Court of Canada, 2017).
So Go Cyber had methods of circumvent the built-in security checks of licenced video games on the Nintendo consoles through various features to curb the strict regulated productions of Nintendo games, nearly as way of selling pirated games to the Canadian consumer online. The Go Cyber company sold “Game-Copier” that did this: “A user in possession of a Game Copier can use it to play unauthorized copies of Nintendo DS or 3DS video games in the following manner” (…) “a user downloads an illegal copy of a DS or 3DS game from the internet in a computer file format commonly known as “ROMs” (…) “when the Nintendo DS or 3DS is switched on, the Game Copier mimics a genuine game card (using copies of the Header Data and encryption/scrambling circuitry) and enables the DS or 3DS console to access the illegally copied ROM on the memory card and play the pirated copy of the Nintendo Game” (Federal Court of Canada, 2017).
So the Canadian Online Video Game store used singular activity and offered broad spectrum of products not licenced or involved directly with Nintendo, while giving the consumer the ability and opportunity to open its console for pirated games. This is what the Go Cyber Shopping tricked the Nintendo device to recognize the pirated games without having the licenced copy. They also sold Mod-chips to circumvent the licenced games:
“Mod chips allow users to play unauthorized copies of Wii video games, such as pirated copies downloaded from the internet. For example, users may download unauthorized copies of video games from the internet onto hard drives. When these hard drives are connected to a “modded” Wii console, the mod chip allows the user to access the pirated video games without owning a genuine Wii game disc (Rhoads 2, Applicant’s Record, 923-925)” (Federal Court of Canada, 2017).
So with this in mind, the Go Cyber Shopping Online stores sold replicated and video games altercations to make sure they could sell pirated goods to the consumers and also provide methods of not paying full price for games and gaming experience to Nintendo. The provider and retailer did by all means trade in illegal merchandise and fake ones that appeared real and with costs to sell experiences that weren’t the true video game from Nintendo. They used technical installations and changes to the similar, but not the same as the licenced games from Nintendo. So the consumer in Canada was getting tricked, while the Nintendo we’re losing royalties and sales in Canada as the efforts to undermine the company by Go Cyber.
Important key aspect of the matter:
“the Respondent’s interpretation defies logic. Replication is not incompatible with circumvention. A burglar who uses an illicitly copied key to avoid or bypass a lock to access a house is no less of a burglar than one who uses a lock pick. Similarly, even if the Respondent’s Game Copiers replicate only a part of the TPM, that does not make their use any less of a circumvention” (Federal Court of Canada, 2017). This here proves the breach of contract with Nintendo and with the consumer; the gamer have bought it in good faith, while Nintendo’s copyright and TPM have been altered by the Canadian retailer.
Nintendo won damages:
“$11,700,000 in statutory damages pursuant to s. 38.1 of the Copyright Act in respect of circumvention of technological protection measures” (…) “$60,000 in statutory damages pursuant to s. 38.1 of the Copyright Act in respect of copyright infringement of the Header Data works” (…) “$1,000,000 in punitive damages” (Federal Court of Canada, 2017). So just by this the Go Cyber Shopping (2005) Limited has to fork up $12,760,000 to Nintendo of America Limited. That is blow to the not licenced video-games industry in Canada, and also shows reassuring trial for other gaming companies that needs sales on the massive investments of productions to consoles and to games. This have to be seen as the day that gaming industry got justice in court against those who sells altering and circumventing methods, which must be a good day for the gaming industry.
Certainly, this is not the last case, but it shows the level of integrity and the hard-work this companies do to respect their consoles and their games, which are righteous since they invest in technology and making games that, are tailor-made for the consoles. So that we the consumer can get the best experience and have games that entertain and put a smile on our face at the end of the day. Peace.
Federal Court of Canada in Ottawa, Ontario – ‘Citation: 2017 FC 246: Nintendo of America INC. versus Jermaine Douglas King and Go Cyber Shopping (2005) LTD’ (01.03.2017)