Call this the triumph of the corporate overlord and his well-paid lawyers.
A Canadian federal court ruled in favor of Nintendo of America in its case against Go Cyber Shopping. The case revolved around Canada’s anti-circumvention laws, which prohibit bypassing the technological barriers that restrict hardware and software from being used in ways disapproved by the original copyright holders. According to a report by TechDirt, with due credit to Canadian legal academic Michael Geist, the court views any anti-circumvention process that might lead to infringement as a violation of the country’s broad statutes prohibiting workarounds. The laws have also included cases where asking for an article behind a paywall would be considered illegal circumvention.
In this specific case, Go Cyber Shopping’s business focused on modifying and repairing hardware, including smartphones and game consoles. Mod chops have been around for decades and have allowed gamers with modded consoles to bypass the restrictions in place to play homebrew games, imports, and pirated games. Modding and outside repair typically voids the console warranty and most manufacturers have been content to leave it at that.
Nintendo chose to make an example of one of the more vocal modding/repair shops using the Canadian Copyright Act’s Anti-Circumvention law. Go Cyber Shopping argued that its products helped gamers play homebrew games, but the court ruled the company failed to provide evidence of that. The court awarded Nintendo the maximum amount for each infringement and $1 million in punitive damages, for a princely sum of $12.7 million that a small business like Go Cyber Shopping won’t have.
While the punitive damages are chump change for a company with billions in revenue, Nintendo is quite pleased with the ruling. In a statement, the company gloated that “After years of routinely boasting of his activities on social media, [Jeramie King, owner of Cyber Go Shopping] will now be forced to issue an apology on his website for the damage that he caused to Nintendo, its developers and partners.”
However, Go Cyber Shopping is no more than the example made for other shops providing modding and repair services. The legal implications for the case are far more reaching. The broad interpretation of technological protection measures creates legal limits to even accessing hardware and software, let alone actual copying.
To compound the trouble, the anti-circumvention exceptions that exist in current Canadian law for the visually impaired, to protect personal information, and for security research can be considered as under fire. While the court begrudgingly states that the exceptions may be necessary as the manufacturers may place restrictions or conditions on access to materials that impair their effectiveness, it does nothing to protect those exceptions or exempt them from the new interpretation putting legal limits to even access the technology.
The ruling can be seen as a dangerous blow to global efforts to have the right to repair. In the same way the Canadian court chose to reject a UK ruling on the subject that was narrower, American courts and legislators now have a case they can cite to strengthen anti-circumvention statutes, making it harder for the average consumer to truly own anything they purchase, as well as making anything that could be construed as leading to possible infringement a plausible target for lawsuits.