The Dominant Argument

Nintendo’s claims were undefended, but future decisions may be more balanced.
One of the most unusual aspects of the Federal Court’s recent decision in Nintendo v. King is not technical: it’s the court’s decision to allow Nintendo to write the reasons for its own judgment — a judgment that sets important precedent in the area of copyright law and digital protection measures.

While it’s not unheard of for judges to “copy and paste” particular sections of one side or the other’s arguments into their reasons, in Nintendo, Justice Colin Campbell invited the video game company’s counsel to write its final arguments as if they would be the entire reasons for his decision because he felt the company made
a compelling case. Also, defendant Go Cyber Shopping Ltd. of Waterloo, Ont.,
did not participate in the trial by making oral arguments, submitting affidavit evidence or cross-examining witnesses.

Bruce Green, an IP lawyer at Oyen Wiggs Green & Mutala LLP in Vancouver, says the optics of permitting Nintendo to write the reasons may “come off as a big powerful plaintiff allowed to rubberstamp their own ruling,” but he says it was a good case to test of Canada’s new technological protection measures, and it was not Nintendo’s fault the case was not fully defended.

Several lawyers say that, had a full defence been mounted, the result — especially on damages and possibly on shape — may have been different. The assumption
is that Go Cyber couldn’t afford to pay lawyers to finance a major piece of corporate intellectual property litigation.

Green believes as more of these cases involving small-time media pirates come up, amicus curiae (or “friends of the court”) as well as interveners will step forward to help assure a more balanced outcome. “There may also be some software association that jumps into the fray, for example, because there may be some issues arising from the case that could affect software companies in an unexpected way.”

As for the $12.76-million damage award, the court could have taken proportionality into account — had it been argued. Someone who earned $10,000 from a copyright infringement may face a very different damage award than someone who earned
$10 million. In Nintendo, however, no such evidence was presented.
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