Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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Like its , the 2017 Nintendo Switch is not immune to hacking and piracy. The modification of video game consoles typically enables the unauthorized use of illegally obtained game cartridge data (stored in ROMS) or fan-made ‘’ content. Some modifications allow . Hacking and piracy in the video game industry has even sparked

Nintendo of America (“NOA”) has been consistently strict and litigious in regard to any modification of its intellectual property. They recently brought forward of Game & Watch hacking and sued Recently, NOA settled with modification chip vendor Uberchips for

On April 16, NOA filed a lawsuit against Canadian hacker Gary Bowser in a The video game company alleges that This is not the first time Bowser has butt heads with Nintendo. Nintendo has taken action against Gary Bowser’s alleged piracy of their products as far back as .����

Life imitates art as Bowser shares a name with . Adding to the confusion, . While ironic, the Bowsers bear no relation to one another.

Gary Bowser allegedly lead the hack creator group Team Xecuter. According to the United States Department of Justice (“DOJ”), Team Xecuter is . They were arrested in late 2020 and charged with 11 felony counts, with the possibility of extensive prison time. As reported by the DOJ, the Nintendo Switch, NES Classic, and the Nintendo 3DS are targets of console hacks. . The group allegedly created and sold unauthorized hardware that allowed individuals to modify gaming consoles and install unlicensed software. For example, the SX OS, a prominent circumvention device sold by the group, can hack a Nintendo Switch, bypass security functions including technological protection measures and run pirated games.

In Nintendo of America Inc v Bowser 2021, NOA alleges that the development and distribution of the . Team Xecuter’s products allegedly circumvented and compromised NOA’s deliberately implemented Technological Measures, including encrypted identifiers requiring verification upon powering on and other server confirmation processes. NOA claims that users utilizing SX OS may download pirated games free of charge and propagate illegal copies via user sharing or peer-to-peer (“P2P”) sharing. According to NOA, this unauthorized Nintendo Switch activity results in

The SX OS is the on the Switch, at one point being installed on 89 percent of all modified Switches on the market. Illegal distribution undoubtedly affects Nintendo’s business, but also causes “” between Nintendo and its external developers.

Team Xecuter has historically rejected the piracy label and fought back against copyright claims. In a , the team claimed that Nintendo misrepresented Xecuter products, including the SX OS, and that they promote “” on modified consoles. Before this lawsuit, the group , calling for the right to repair and modify consumer electronics. Video game companies, including Nintendo, have . While Team Xecuter may explore and right to repair defenses, the team’s may hurt their arguments. As of May 2021, Team Xecuter has issued no publicized statements in response to NOA’s claims.

NOA seeks damages relating to the alleged injury to their IP and violations to the Anti-Circumvention and Anti-Trafficking provisions of . Under the ., NOA seeks $2,500 USD for each trafficked Switch and $150,000 USD for each copyright violation. Lastly, NOA seeks to shut down Bowser for good.

The post Nintendo v Bowser: Hacking and Piracy in Video Games appeared first on IPOsgoode.

Photo Credits: Amelie & Niklas Ohlrogge (unsplash.com)

Written by, Sabrina Macklai, IPilogue Senior Editor and J.D. student at the University of Toronto Faculty of Law (Class of 2023).

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Bill C-11, or the , was brought into force in November 2012. It introduced a number of changes to Canada’s , including the expansion of the fair dealing exception to cover use for education purposes. In addition to this change, Bill C-11 introduced a new treatment for technological protection measures (TPMs) or digital locks.

TPMs are digital rights management tools that control access and restrict the use of copyright-protected digital material. These tools include access control measures, such as passwords, paywalls, registration keys, and encryption software, which restrict access to a work. They also include copy control measures, such as read-only works, download blocking, and copy blocking, which restrict what can be done with a work.[1]

In order to meet Canada’s international obligations as a signatory to the , Bill C-11 included an amendment which prohibits the circumvention of TPMs installed on a work such as a performer’s performance fixed in a sound recording, even if the work was obtained legally. This was done after immense pressure from the United States to include these anti-circumvention rules, even though about this legal reform.

Bill C-11 legally permits circumventing a TPM in only a few narrow circumstances. These include exceptions for law enforcement, reverse engineering for software compatibility, encryption research, and computer security; these situations do not apply to regular archival uses. As follows, intended end-uses that would otherwise fall under fair dealings exceptions may be restricted due to prohibition of TPM circumvention.

Archives should be granted an exception to the prohibition of circumventing TPMs. As critics of the reformed Copyright Act believe, the anti-circumvention aspect of the current legislation severely hinders users’ rights and thus goes against the intention of the Canadian Copyright Act to balance copyright holder and users’ statutory rights.[2] If all creations were protected with TPMs, as is possible, user rights essentially become irrelevant.

As Jean Dryden, an expert in archives, , “archives should be allowed to acquire and apply tools to remove such measures, so they can fulfil their public interest mission.” Archives need to examine the material to see if the content fits within their collection and doing so may require circumvention of TPMs. In order to preserve materials, the circumvention of TPMs may be necessary, especially when preserving audiovisual content that is in older, perhaps obsolete format.

This becomes further complicated when TPMs exist on works with expired copyright protections. In such cases, works which technically are within the public domain and therefore ought to be freely available for use and engagement are rendered inaccessible due to the presence of a (legally) unbreakable TPM.

There has been much debate on how to approach the legality of circumventing TPMs. that the most obvious solution would be amending section 41 of Bill C-11 to add “for any infringing use” to the current definition of the term “circumvent”. By including this phrase, users’ rights are protected, and copyright owners are still protected from their content being used by commercial entities without their permission. However, this lends itself to further grey area as “infringing use” is ambiguous.

Instead, archival institutions should be granted exceptions to circumvent TPMs, comparable to those granted to law enforcement and national security activities. Other jurisdictions have adopted similar solutions. For example, New Zealand’s grants “qualified persons”, such as librarians and archivists, the ability to circumvent a TPM on behalf of a user who wishes to carry out a permitted act. Furthermore, New Zealand’s Copyright Act makes it explicitly clear to copyright holders that issuing a TPM does “not prevent or restrict the exercise of a permitted act.” By making this clear, New Zealand ensures that TPMs may still be used to prevent copyright infringement, but do not overly restrict user rights.

Unfortunately, the prohibition of TPM circumvention in Canada does not end with Bill C-11. The Trans-Pacific Partnership (TPP) brought upon new intellectual property policies in 2016. Amongst these copyright reforms, the TPP requires Canada to make further changes to their digital lock rules to align more closely with the WIPO+ model. This model removes the ability to restore the flexibility found in the WIPO Internet treatises, essentially locking these new digital lock rules in Canadian law. According to , a distinguished Canadian law professor in internet law, this will involve the addition of new criminal provisions regarding rights management information and may also make digital lock exceptions even more restrictive than they already are.

[1] Carys J Craig, “Digital locks and the fate of fair dealing in Canada: In pursuit of prescriptive parallelism” (2010) 13:4 The Journal of World Intellectual Property 503.

[2] Andrea Kampen, “Copyright Issues in Archives” (2016) 12 Dalhousie Journal of Interdisciplinary Management 1.

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