Topic: Nintendo Loses DS Flash Card Case in French Court

[NWR_pap64]

A French judge rules that users have the right to use flash cards for homebrew projects.
 http://www.nintendoworldreport.com/newsArt.cfm?artid=20474

 A court in Paris, France has dismissed a lawsuit presented by Nintendo over the use of DS flash cards.  Nintendo was attempting to stop their use due to their ability to bypass piracy protection and illegally emulate DS titles.    

However, the presiding judge explained that flash cards are often used for homebrew and do-it-yourself projects, and that users of the console have the right to develop software for it. The judge compared it to PC users holding a legal license for Microsoft Windows, but still being allowed by law to develop their own software for the operating system.    

The court further reasoned that users should have the right to develop software for the system without needing proprietary development kits, and that flash cards assisted them in this regard.

[BlackNMild2k1]

I think that judge forgets that Nintendo makes it's own systems that are closed. If they want to develop something there are open options or licensing available. If someone is going to violate the terms & usage of something that I myself researched, developed, manufactured, distributed and now use to make money, then I think I have every say on how it can and can't be used.

He can compare it to Windows all they want, but windows is (industry monopoly standard)software made for a wide variety of platforms that are not made by MS themselves. People are simply making software for that same hardware that happens to be compatible with Windows by default because they almost have no other choice.

The main problem with the flash carts is that they compromise the security of the system in which they use to deliver content to those that have bought it. It is how they make their money after all. If this takes hold, what ramifications does it have in the European Market?

[Pale]

And the second someone makes a pornographic homebrew game and it falls into the hands of a child, who will be getting sued?

As BnM said, it's a closed platform.  Public opinion proves it.  If a game is played on it, it's pretty much a Nintendo game in their eyes.

Nintendo has a right to protect itself from liability.

[TJ Spyke]

I think we also know that the vast majority (I would estimate at least 90%) of those DS flashcards are used for piracy, not homebrew games. So while I admit that some people do us them for legal homebrew, most people use them for illegal means. I am not surprised by this ruling though, French courts are known for supporting copyright and trademark violators (European courts in general generally rule against companies rights to protect their IPs, that is the reason that Sony/Nintendo/Microsoft can not legally tell a company they can't publish a game on their systems and why a company like Phoenix Games releases crap in Europe-only all the time).

[AnyoneEB]

The main problem with the flash carts is that they compromise the security of the system in which they use to deliver content to those that have bought it. It is how they make their money after all. If this takes hold, what ramifications does it have in the European Market?

Trying to stop piracy by technological means is a dead-end; piracy is already illegal. There will always be a way around it. At least with flash carts, people are buying Nintendo hardware (as opposed to running emulators on computers or other handhelds).

And the second someone makes a pornographic homebrew game and it falls into the hands of a child, who will be getting sued?

Erm, if you want to pin the liability on anyone, I would say whoever gave it to the child (or [negligently?] allowed the child to come into possession of it). I fail to see how DS flash carts differ from any other platform in this regard. There are many companies involved in content creation for the DS. I find it hard to believe that most people would be any more confused about a Square game being played on a Nintendo DS than about a Warner Bros. movie being played on a Sony DVD player.

I think that judge forgets that Nintendo makes it's own systems that are closed. If they want to develop something there are open options or licensing available. If someone is going to violate the terms & usage of something that I myself researched, developed, manufactured, distributed and now use to make money, then I think I have every say on how it can and can't be used.

What right does Nintendo have to say what I can and can't do with a physical object that I bought from them? Don't I own it, not them?

I am not in support of piracy (nor am I even all that interested in homebrew: I have regular computers I can run whatever I want on; running homebrew on consoles is just extra work), but I am very much against the idea of a company being able to exert control over hardware I own. If they really wanted to stop piracy, they would provide for legal ways to run homebrew apps which could not be used for piracy.

[EasyCure]

And the second someone makes a pornographic homebrew game and it falls into the hands of a child, who will be getting sued?

Erm, if you want to pin the liability on anyone, I would say whoever gave it to the child (or [negligently?] allowed the child to come into possession of it). I fail to see how DS flash carts differ from any other platform in this regard. There are many companies involved in content creation for the DS. I find it hard to believe that most people would be any more confused about a Square game being played on a Nintendo DS than about a Warner Bros. movie being played on a Sony DVD player.

erm.. i see where you were coming from in your other points, but this one musta flewn over your head..?

If mom and pop buy a second hand DS game (say, hannah montana the video game) and lil jimmy goes to pop it in and sees porno or whatever, they're not gonna blame themselves for it and only a few would take it back to the store and complain* the rest would try and blame nintendo themselves because to them there are no third parties; If you buy a NINTENDO DS game for a NINTENDO DS, guess all blame falls on NINTENDO. When news stories start popping up that NINTENDO makes pornography available on their NINTENDO DS.. well thats the sort of liability we're talking about here.

[BranDonk Kong]

I have to agree with the French Courts here. Sony lets people install Linux and use their own HDDs. Microsoft should be forced to let end-users use their own HDDs too. Saying that they're mainly used for piracy(even though it's true), and should be banned is like saying bongs should be illegal banned because they're mainly used for weed, and radar detectors should be illegal because they're mainly used for speeding.

[King of Twitch]

Nintendo lost to the French?? 

[BlackNMild2k1]

Yes. Now America will send France a Statue of Civil Liberty.

[TJ Spyke]

I have to agree with the French Courts here. Sony lets people install Linux and use their own HDDs. Microsoft should be forced to let end-users use their own HDDs too. Saying that they're mainly used for piracy(even though it's true), and should be banned is like saying bongs should be illegal banned because they're mainly used for weed, and radar detectors should be illegal because they're mainly used for speeding.

So Microsoft should be told what to do with their technology? No offense, but that is a stupid idea. I don't buy into that and other crap that Libertarians say (Libertarians basically think that everything should be legal as long as it doesn't prevent others from doing the same thing). Bongs are the same here, I doubt that even 1% of the people who own bongs use them for legal purposes. Companies can not (in any country that doesn't support piracy) be told what to do with their technology.

[that Baby guy]

Let's try to keep the drugs and politics out of here, and keep the talk about video games.

Nintendo licenses software, and the software they license is supposed to be safe to use on their consoles.  The software the DS consoles would be playing in this case would be unlicensed.  Open or closed platform, the most you can regulate is the software you choose to license.  The judge was right: Homebrew software can be used legitimately, and often will be used more legitimately than people perceive.  The software isn't licensed, so it's utilized at the risk of whomever uses it, but it's still legal.

Nintendo's had issues with people running unlicensed code since the NES, truthfully, when they've gone to court over the Game Genie.  While they can substantiate claims about piracy, running unlicensed code is a different matter, and it consistently is found legal in courts, as long as the unlicensed code doesn't make claims to be licensed.

Edit:  As far as Microsoft goes, I don't know anything about what the court might have said.  In that regard, I'd imagine that it would be found that a company could legally make proprietary drives, provided they didn't steal any code about how the drives are formatted, instead, backwards engineering the format.  I don't think that would be too hard, but going to court against Microsoft can take quite a bit of cash.

[vudu]

Let's try to keep the drugs and politics out of here, and keep the talk about video games.

Agreed

[BlackNMild2k1]

Nintendo licenses software, and the software they license is supposed to be safe to use on their consoles.  The software the DS consoles would be playing in this case would be unlicensed.  Open or closed platform, the most you can regulate is the software you choose to license.  The judge was right: Homebrew software can be used legitimately, and often will be used more legitimately than people perceive.  The software isn't licensed, so it's utilized at the risk of whomever uses it, but it's still legal.

Nintendo's had issues with people running unlicensed code since the NES, truthfully, when they've gone to court over the Game Genie.  While they can substantiate claims about piracy, running unlicensed code is a different matter, and it consistently is found legal in courts, as long as the unlicensed code doesn't make claims to be licensed.

But this specific case is about the use of flash cards which allow them to compromise the safety and security system and this hardware is being sold publicly to to do so. If it was just some guy in his garage that made a way too unofficially interact with the hardware and manipulate code and other software, that would be one thing, but these things are being sold all over the place. I think Nintendo has every right to protect the hardware that they spent millions of dollars developing.

But I also agree that if Nintendo (or any other manufacturer) made authorized ways for people to homebrew or atleast made getting official development kits cheaper and easier to obtain, then allow that software an easy place to be viewed and purchased legally, then people wouldn't have to find ways around it. Of course there will always be people that will try to find the free way to do it and bypass all official channels if possible, but Nintendo isn't leaving anyone much of a choice that is into that type of things that homebrew allows.

[TJ Spyke]

Wii development kits are only $2,000 and you basically just have to be organized to get one (World of Goo was made by a company that consists of 2 people).

Game Genie and unlicensed games are not the same. Nintendo only lost the Game Genie suit because they couldn't prove that Galoob was the ones doing anything wrong, it was up to individual users to decide if they wanted to alter games. People will pirate games regardless of cost. Anybody can make PC games for free (the only costs you would have to pay are to the ESRB if you wanted to have the game rated so you could release it at retail), but doesn't stop users.

Thankfully Nintendo seems to be having better luck fighting flash cards in Japan.

[that Baby guy]

Nintendo lost the Game Genie case because the Game Genie couldn't create derivative works, like Nintendo claimed.  Looking more into it, it doesn't relate entirely to the matter at hand, but it goes to show the history of trouble Nintendo's had in the court in matters of unlicensed code.

The cases Nintendo wins are cases that there's real, tangible copyright infringement, at least in the US.  The more notable things picked up here is actually NES emulators featuring several roms.  The ones that pass have always been devices capable of running homebrew content, and subsequently have the ability of doing illegal things.  Contrary to popular belief, I don't think there's really such a thing as a closed platform.  There's been legal unlicensed games on Nintendo's platforms since the NES, and the only illegal ones were the ones that stole patent information or claimed to be licensed.  Yes, it's closed in that there's typically been extensive efforts to lock-out non-licensed code, but it's never been illegal to run unlicensed code.

That doesn't mean piracy isn't illegal.  I'd equate homebrew to bypassing security on many PC games.  While it's often used for piracy, it can be used for other reasons, for instance, if you own more PCs than the game's security allows it to be installed on, or if you lose a validation key, security bypasses can be very useful.  Personally, I'm surprised many types of PC security/copy-protections aren't illegal, since you're often not informed of the EULAs and such involved at the point you choose to purchase the game.  I'm honestly surprised I haven't heard much about consumer's advocates getting involved in some of these things.

On that note, flimsy and unreliable security methods have kept me out of PC gaming.  I struggle enough with StarCraft, and that's the only game I play.  I can't stand the CD key id, just because I lose it all the time.

[BranDonk Kong]

I have to agree with the French Courts here. Sony lets people install Linux and use their own HDDs. Microsoft should be forced to let end-users use their own HDDs too. Saying that they're mainly used for piracy(even though it's true), and should be banned is like saying bongs should be illegal banned because they're mainly used for weed, and radar detectors should be illegal because they're mainly used for speeding.

So Microsoft should be told what to do with their technology? No offense, but that is a stupid idea. I don't buy into that and other crap that Libertarians say (Libertarians basically think that everything should be legal as long as it doesn't prevent others from doing the same thing). Bongs are the same here, I doubt that even 1% of the people who own bongs use them for legal purposes. Companies can not (in any country that doesn't support piracy) be told what to do with their technology.

But you see, Nintendo is not being told what to do with their technology, they're just being told that they can't sue the makers of the R4, etc. anymore. No one is asking Nintendo to do *anything* but chill out.

(Fixed a mis-quote ~vudu)

[ThePerm]

Nintendo lost the court battle on running homebrew, but they should sue them again for breach of contract for violating terms of use.

[MegaByte]

Terms of use isn't really enforceable.

[ThePerm]

lol, if they make it on the box and put "by opening this box you agree by contract....." then it is, but i don't think they did.

[xcrystalxservexx]

since there was terms and conditions for me to follow i will legally say this. **** all of those people who messes with nintendos things. i play metroid prime hunters alot and everyone cheats on that game. i hope nintendo updates the dsi to restrict stuff like the ace card and action replays things and any non-nintendo related things from working on the dsi. i doupt those stupid *** people who makes those things has anything that can stop nintendo from doing so.

[MegaByte]

Nintendo already tried and they got around it within days.  Online cheating should be handled on the server side, but Nintendo apparently doesn't have much competence with that.