James Burt, 24, of Sinnamon Park, Brisbane copied New Super Mario Bros — one of Nintendo's new Wii games — and uploaded it to the internet a week before its official Australian release on 12 November 2009.
Under the Copyright Act 1968 (Cwlth), Burt should have sought Nintendo's permission, as the copyright owner, before copying and distributing its games.
As a result of Mr Burt's conduct, thousands of people around the world downloaded illegal copies of the game causing substantial loss to Nintendo.
Once notified of the breach, Nintendo engaged a private investigator to apply sophisticated technology to determine the identity of the infringer, Burt.
On 23 November 2009, Nintendo obtained a Federal Court order to search Burt's residence. During the search, Nintendo seized property to use as evidence to substantiate its claims against Burt. The Court ordered Burt to allow access, including passwords, to his social networking sites, email accounts and websites.
Nintendo then sued Burt in the Federal Court of Australia. Under an out-of-court settlement in January 2010, Burt is required to pay Nintendo $1.5 million in damages to compensate Nintendo for the loss of sales revenue and a further $100,000 to pay Nintendo's legal costs.
Copyright infringement is taken seriously by the courts. This case illustrates the broad range of orders and remedies that can be obtained from the courts to successfully protect your copyright.
This case highlights the severe penalties that are imposed on individuals or companies that infringe copyright laws. Be cautious when dealing with copyright material. Even if your breach is unintentional, action can be brought against you. Companies such as Nintendo are becoming more pro-active and innovative in pursuing offenders. In a statement, Nintendo commented that it guards its intellectual property rights to protect the interests of its consumers, its own interests and the interests of game development companies.
Since this decision, Nintendo has won another Australian Federal Court case. This case was against online console and accessory seller IT Solutions Pty Ltd trading as GadgetGear — involving the gadgets known as R4 cards, which pirate games for its handheld DS system.
GadgetGear and its directors have acknowledged that:
As a result of this case, GadgetGear and the directors have agreed to permanently refrain from importing, offering for sale and/or selling game copier devices.
GadgetGear and directors Patrick and James Li were ordered to pay Nintendo $620,000 in damages and hand over all their stock of copiers to Nintendo for destruction.
If you have any questions about this article, or intellectual property generally, then please call the Maddocks Intellectual Property and Information Technology team in Melbourne on 03 9288 0555.
Qualifications: BA (Philosophy), Monash University, JD (Juris Doctor), University of Melbourne
Jack is a member of Maddocks Commercial team. He advises a range of corporate and private clients on:
Jack acts for clients on both buy-side and sell-side and specialises in founder-owned businesses and Australian subsidiaries of multi-national companies. He works across a number of sectors including information technology, professional services, and property development and management including land lease.
Jack’s structuring work includes assisting multinationals to structure Australian operations, listed companies to achieve regulatory compliance / optimisation and providing general tax structuring. He has also represented clients in tax controversies including before the General Anti-Avoidance Review Panel (GAAR Panel) and the Federal Court of Australia.
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