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Nintendo v. Go Cyber

*April 2020

This instructional module is not intended as legal advice. All Opening Up Copyright modules are made available under a Creative Commons Attribution 4.0 (CC-BY-4.0) International license.

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VIDEO GAMES

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WHAT IS A TPM?

Technological Protection Measures (TPMs)

= Digital Locks

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COPYRIGHT ACT, S. 41

s. 41

Technology

Device

Component

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NINTENDO v. KING & GO CYBER

s. 41.1

You cannot:

Circumvent a TPM

Offer circumvention services

Market circumvention services

Manufacture

Import

Distribute

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NINTENDO’S USE OF TPMs

1. Shape of cartridges

2. Copy

protection code

3. Data

encryption

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DEFINING TPMs

TPMs for controlling access

TPMs for controlling use

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DEFINING TPMs

s. 41

?

TPMs = Any effective technology

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COURT DECISION

s. 41

TPM = Any effective measure

Cartridges = An effective measure

(paras. 77-83)

TPM = Transforms a

copyrighted work through encryption or other means

2) Section 41: Replication = Circumvention

2)

The federal court disagreed with Go Cyber on two main grounds:

First, since the Act says a TPM is ANY effective measure, the shape of the cartridges counted as a TPM (paras. 77-83). This is different than the interpretation in the UK, where a TPM is defined as something that “transforms” a copyrighted work, through encryption or other means.
Second, the intent of s. 41 in the Act was not to exclude “replication” from the definition of “circumvent,” so duplicating the measure just to get around it is still a violation. As an example, the court noted that a burglar who makes a copy of a key to get into someone’s house is still a burglar.

Go Cyber lost their case. They were found accountable for violating Nintendo’s copyright on its “header data” AND for circumventing their technological protection measures. Nintendo was awarded more than $12.7 million dollars in damages.

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SHAPE AS A TPM

“Shape”

= Effective TPM?

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COPYRIGHT IMPLICATIONS

You risk violating the Copyright Act

You risk violating the Copyright Act by intentionally circumventing any TPMs

You risk violating the Copyright Act by intentionally circumventing any TPMs to gain access

You risk violating the Copyright Act by intentionally circumventing any TPMs to gain access to copyrighted material

No fair dealing!

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IMPACT OF THE RULING

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IMPACT OF THE RULING

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LEARNING OBJECTIVES

You should now be able to:

Describe and recount the arguments in the Nintendo v. Go Cyber case

Recognize how a broad interpretation of protections and a limited interpretation of exceptions was applied in this case�

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THANK YOU FOR YOUR ATTENTION

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Nintendo’s three pronged TPM strategy included:

Shape of the cartridges, header data code, and data encryption
Shape of the cartridges, special keys, transformative code
Replication, transformation, encryption
Zelda, Peach and Daisy

Nintendo’s case against Go Cyber was based on the argument:

Go Cyber had circumvented the shape of the Nintendo cartridges, which constitute a TPM because they were designed to be used exclusively with Nintendo consoles
Go Cyber’s replication and circumvention was not transformative
Go Cyber had not equally circumvented Playstation and Xbox consoles
Go Cyber had suggested Luigi was better than Mario

QUESTIONS

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The Federal Court’s broad interpretation of shape as an effective TPM is problematic because:

It may allow any physical or digital aspect of the container of a copyright protected work to be considered a TPM
It allows for both affective and effective TPMs
It requires burglars to have keys
Bowser must now appear smaller than Mario in all Nintendo games

The Canadian interpretation of TPMs differs from the UK approach because

The UK requires a higher standard of the TPM being transformational
The UK requires a lower standard of the TPM being occasional
The UK requires TPMs be “affective”; Canada requires TPMs be “effective”

QUESTIONS

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Canadian DMCA in action: Court awards massive damages in first major anti-circumvention copyright ruling. (2017, March 3). Michael Geist. https://www.michaelgeist.ca/2017/03/canadian-dmca-in-action-court-issues-massive-damage-award-in-first-major-anti-circumvention-copyright-ruling/

Crowne, E. (2017). Federal Court interprets Canada’s technological protection measures for the first time. Journal of Intellectual Property Law & Practice, 12(6). 459–61. https://doi.org/10.1093/jiplp/jpx071

History of modding. (n.d.). From Pacman to Pool: Research on User Generated Content. Retrieved May 13, 2019, from https://mediaindustries1.wordpress.com/modmoddermodding/history-of-modding/

Hutchison, C. (2016). Digital copyright law. Irwin Law.

IFPI. (2003, March). The WIPO treaties: Technological measures. https://web.archive.org/web/20180417033805/https://www.ifpi.org/content/library/wipo-treaties-technical-measures.pdf

REFERENCES AND RESOURCES

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Kerr, I. R., Maurushat, A., & Tacit, C. S. (2002). Technical protection measures: Tilting at copyright’s windmill. Ottawa Law Review, 34(1), 7–82.

Sapp, H. (2005). North American Anti-Circumvention: Implementation of the WIPO Internet Treaties in the United States, Mexico and Canada. Computer Law Review & Technology Journal, 10(1), �1–40.

World Intellectual Property Organization. (n.d.). WIPO copyright treaty (WCT). Retrieved from https://www.wipo.int/treaties/en/ip/wct/

REFERENCES AND RESOURCES

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Copyright Act, RSC 1985, c C-42. https://laws-lois.justice.gc.ca/eng/acts/c-42/page-1.html

Nintendo of America Inc. v. King. 2017 FC 246. [2018] 1 FCR 509. http://canlii.ca/t/h0r1j

CASES AND LEGISLATION

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Gam-Ol. (2019). [Coin video]. Pixabay. https://pixabay.com/videos/pixel-bit-coin-game-8-video-20495/

IYIKON. (2019). Video game. The Noun Project. CC BY. https://thenounproject.com/icon/video-game-3009098/

WEBTECHOPS LLP. (2019). Earth. The Noun Project. CC BY. https://thenounproject.com/icon/earth-2848269/

Gregor Cresnar. (2015). Dollar sign. The Noun Project. CC BY. https://thenounproject.com/icon/dollar-sign-171145/

mungang kim. (2019). Stock. The Noun Project. CC BY. https://thenounproject.com/icon/stock-3127443/

Trisreed. (2009). [Nintendo logo]. Wikimedia. https://commons.wikimedia.org/wiki/File:Nintendo.svg

Template. (n.d.). Bullet. The Noun Project. CC BY. https://thenounproject.com/search/?q=mario&i=2208746

IMAGE AND SOUND REFERENCES

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mattpavone. (2009). Planetary Flyby faster. Freesound. CC 0. https://freesound.org/people/mattpavone/sounds/76175/

Adrien Coquet. (2018) Unlock. The Noun Project. CC BY. https://thenounproject.com/term/unlock/1862800/

Federal Court. (2007). [Federal Court’s Coat of Arms]. https://www.fct-cf.gc.ca/en/pages/the-federal-courts-coat-of-arms

Adrien Coquet. (2019). Access. The Noun Project. CC BY. https://thenounproject.com/icon/access-2448901/

Kimmi Studio. (2017). Shield. The Noun Project. CC BY. https://thenounproject.com/icon/shield-874630/

Go Cyber Shopping. (n.d.). [Go Cyber logo]. https://www.gocybershopping.com/

David Pérez. (2017). Nintendo DS. The Noun Project. CC BY. https://thenounproject.com/icon/nintendo-ds-1504614/

IMAGE AND SOUND REFERENCES

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Ryan Beck. (2014). Nintendo 3DS. The Noun Project. CC BY. https://thenounproject.com/icon/nintendo-3ds-44992/

Mr. Minuvi. (2017). Nintendo Wii. The Noun Project. CC BY. https://thenounproject.com/icon/nintendo-wii-942076/

Andrew Cameron. (2017). Pirate Software Folder. The Noun Project. CC BY. https://thenounproject.com/icon/pirate-software-folder-1211543/

JordanDurren. (2017). Pirate arr! Freesound. CC 0. https://freesound.org/people/JordanDurren/sounds/399851/

Andrew Laskey. (2014). Map. The Noun Project. CC BY. https://thenounproject.com/icon/map-59520/

Thomas Deckert. (2019). Confused. The Noun Project. CC BY. https://thenounproject.com/icon/confused-2536418/

Wireform. (2017). NES Cartridge. The Noun Project. CC BY. https://thenounproject.com/icon/nes-cartridge-900660/

IMAGE AND SOUND REFERENCES

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Vectorstall. (2019). Coding. The Noun Project. CC BY. https://thenounproject.com/icon/coding-2512494/

Vectors Point. (2019). Encryption. The Noun Project. CC BY. https://thenounproject.com/icon/encryption-2761067/

Click-Free-Vector-Images. (2012). [UK Flag]. Pixabay. https://pixabay.com/vectors/union-jack-flag-union-flag-26119/

ProSymbols. (2016). Robber. The Noun Project. CC BY. https://thenounproject.com/icon/robber-563999/

Template. (n.d.). Retro Mario. The Noun Project. CC BY. https://thenounproject.com/search/?q=retro%20mario&creator=3440499&i=2208759

Bobby Richardson. (n.d.). Coin. The Noun Project. CC BY. https://thenounproject.com/search/?q=mario%20coin&i=13774

ProjectsU012. (2016). [Coin sound]. Freesound. CC BY. https://freesound.org/people/ProjectsU012/sounds/341695/

IMAGE AND SOUND REFERENCES

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European Parliament. (2012). ACTA workshop at the EP. [Michael Geist]. Flickr. CC BY-NC-ND 2.0. https://www.flickr.com/photos/european_parliament/6944244255/

James Strange. (2018). CD. The Noun Project. CC BY. https://thenounproject.com/icon/cd-1618119/

popcornarts. (2019). Floppy disk. The Noun Project. CC BY. https://thenounproject.com/icon/floppy-disk-3040140/

Edwin PM. (2018). Lock. The Noun Project. CC BY. https://thenounproject.com/icon/lock-1786028/

voltamax. (2018). [System failure]. Pixabay. https://pixabay.com/videos/code-programming-system-fails-14214/

Closing Slides Music: Rybak, Nazar. (n.d.). Corporate Inspired. HookSounds. CC BY. http://www.hooksounds.com

Unattributed materials are contributions from the Opening Up Copyright Project Team and placed in the Public Domain.

IMAGE AND SOUND REFERENCES

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University of Alberta. (2020). Nintendo v. Go Cyber. Opening Up Copyright Instructional Module. https://sites.library.ualberta.ca/copyright/

LICENSING AND ATTRIBUTION

Suggested Citation:

For the project overview and complete list of modules please visit the project website at: https://sites.library.ualberta.ca/copyright/

Questions, comments, and suggestions should be directed to: ouc@ualberta.ca

This module is made available and licensed under a Creative Commons Attribution 4.0 International Licence

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CONTRIBUTORS

Copyright Office

Technologies in Education

Centre for Teaching and Learning

University of Alberta Library

School of Library and Information Studies

Adrian Sheppard

Amanda Wakaruk

Mireille Smith

Anwen Burk

Cosette Lemelin

Graeme Pate

Krysta McNutt

Michelle Brailey

Luc Fagnan

Julia Guy

Michael B. McNally

Kris Joseph

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ACKNOWLEDGMENT

The Opening Up Copyright (OUC) module series is made available by the University of Alberta Copyright Office.

OUC modules have been produced with the assistance of funding at the University of Alberta through its Centre for Teaching and Learning's Teaching and Learning Enhancement Fund (TLEF) (2017-21) and OER Grant Program (2020), and through a Support for the Advancement of Scholarship (SAS) grant (2021).