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Australia Hardware Hacking Nintendo Portables (Games) The Courts Games Build

Nintendo Wins Lawsuit Over R4 Mod Chip Piracy 146

Posted by Soulskill
from the sorry-about-your-luck dept.
schliz writes "The Federal Court has ordered an Australian distributor to pay Nintendo over half a million dollars for selling the R4 mod chip, which allows users to circumvent technology protection measures in Nintendo's DS consoles. The distributor, RSJ IT Solutions, has been ordered to cease selling the chip through its gadgetgear.com.au site and any other sites it controls, as well as paying Nintendo $520,000 in damages."
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Nintendo Wins Lawsuit Over R4 Mod Chip Piracy

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  • by aussie_a (778472) on Thursday February 18, 2010 @07:14AM (#31182404) Journal

    The distributor advises consumers to use their modification devices for legal reasons only, such as playing legal copies of games from different regions

    Wait, what? I thought handhelds (both the Gameboy Advance, Nintendo DS and PSP) weren't region-locked, but were in fact region-free. This allows people to play games from any region without having to resort to "chipping" their devices (which can often cause permanent damage). If the Nintendo DS is region-free, how could this be a legal purpose for this device? Or is it, in fact, region-locked?

    • by bbqsrc (1441981) on Thursday February 18, 2010 @07:18AM (#31182422) Homepage
      This article seems rather flawed. R4 is a cartridge that takes micro-SDHC cards that could use homebrew applications on your DS. The DS is not region-locked whatsoever. They're evidently attempting to apply previous understanding of consoles to this one and falling rather short.

      This is also not the only homebrew cartridge available for the DS, and by far not the best, but probably the most well known. I bought one so I could use emulators and DSLinux :)
      • To be fair, it was the best at one point in time, for a good while, too.

      • by Sparton (1358159)

        They're evidently attempting to apply previous understanding of consoles to this one and falling rather short.

        My first knee-jerk reaction as well, but not entirely true. DS titles that are sold in stores are region free. Downloadable titles (ie DSiWare) are region locked.

    • by Shrike82 (1471633) on Thursday February 18, 2010 @07:21AM (#31182442)
      Apparently the DS is region free [wikipedia.org] so that's one legal defense out the window.
      • Re: (Score:3, Insightful)

        by Zedrick (764028)
        Only one legal defence should be needed: I have the right to do whatever I want with stuff I've bought.

        Luckily I live in a free country where I'm able to do that (and buy/sell modchips for whatever purpose) - at least for now.
        • by ShakaUVM (157947)

          >>Only one legal defence should be needed: I have the right to do whatever I want with stuff I've bought.

          Indeed. The doctrine of First Sale is rolling over in its grave.

        • Re: (Score:3, Insightful)

          by Shrike82 (1471633)
          I do agree (partially) with what you say in principle, but it's not quite that black and white. If you buy a gun you're not free to remove the serial number, nor are you free to fire it indiscriminantly into the air. If you buy a car you're not free to add a nitrous system to it if you want to drive it on the street. You buy a house you're not free to add a massive extension without permission. Life is full of these little rules that are there for good reason.

          I'm sure Nintendo don't really care if you cr
          • by LKM (227954) on Thursday February 18, 2010 @09:44AM (#31183464) Homepage

            I think the gun comparison is interesting. You can legally buy a gun, but you're not allowed to shoot people with it (usually). Likewise, it should be okay to buy an R4, and illegal to use it for piracy. And there actually are valid reasons for owning an R4 [gamertell.com].

            • There are loads of DS card-readers out there that will let you run homebrew code. Even Datel made one. But the reason why they go after the R4 (and also the reason why the card is so popular in the first place) is because there are always updates so that the latest and greatest games work.
              Just downloaded a ROM that doesn't work? Head over to their website and download the latest firmware. Now tell me they're not about Piracy.

              • by MadChicken (36468)

                I got the R4 because it was ridiculously cheap.

                Just running ROMs doesn't necessarily mean piracy.

          • by Nazlfrag (1035012)

            Everything you say has laws about that. When I brought my R4 and installed only hombrew on it (this is not hypothetical BTW) what law did I break? Is the Precrime bureau going to nab me for potential piracy? More importantly, what crime did the distributor commit?

        • You don't have the right to own and play the whole Nintendo DS library on your DS for the cost of an R4 cart.
      • DSI only games have region protection. If the R4 is used for those then they have a point.
    • by KronicD (568558)
      Yeah, thats the legal protection most mod chip providers use in Australia. I got myself through uni by modding consoles and working helpdesk. I never touched a region free console like the DS or PSP, for this exact reason.
    • by MBGMorden (803437)

      Homebrew software is a major component. Before you laugh, I'll affirm that pretty much the only reason I modded my original Xbox was for running homebrew software - most specifically XBMC. I've since switched to using Boxee running on an AppleTV, but there are people who will want to run homebrew software on their devices, and on a video game system that usually requires a mod-chip.

      • Re: (Score:3, Insightful)

        by jedidiah (1196)

        This nonsense is why I never used an xbox as an HTPC. Although I used a hacked AppleTV in this capacity for awhile.

        Then cheaper, open, PC hardware surpassed both of those "consoles".

        Still, being able to do what I want with those physical things that I own
        can be very handy and can add value to "appliances". The notion that you
        assume by default that such hacks are only for piracy is fundementaly
        anti-democratic.

    • Re: (Score:3, Informative)

      by Wumpus (9548)

      I have an R4 which I use to load my own code to the DS. I never used it to play pirated ROMs. The R4 does have legitimate uses as a development tool.

      • Re: (Score:3, Interesting)

        I have an R4 which I use to load my own code to the DS. I never used it to play pirated ROMs. The R4 does have legitimate uses as a development tool.

        From my experience you are probably amongst the exceptions. I always find it odd that while the DS is one of the biggest selling consoles and ranks high in sales charts, its games don't - I don't whether this is due to the impact of the R4 or some other factor that I am not taking into consideration.

        It would be nice to see lower priced games for the DS, especia

    • by Hatta (162192) on Thursday February 18, 2010 @11:49AM (#31185236) Journal

      There's a couple of reasons. First, homebrew. You can use your DS as a decent MP3 player, or even video player (with transcoding). There are also apps to take notes, read ebooks, etc. etc. There's even a handy scrabble dictionary, and some homebrew games available. (Amazingly, Quake runs pretty well on the DS.) A French court recently ruled that flash carts were legal [engadget.com] for homebrew purposes.

      There's also convenience. It's just easier to carry one card with your entire collection of DS games instead of juggling a dozen carts when you travel.

      That said, there's plenty of illicit uses for such a device as well.

    • I think they're making assumptions. There is most likely some sort of protection on DS games but not for different regions.

      The one exception is if it's a DSI specific game then it will have region protection.
  • by aussie_a (778472) on Thursday February 18, 2010 @07:20AM (#31182440) Journal

    Modding consoles, selling chips to mod consoles and selling services to mod consoles have been deemed legal in Australia in the past due to the justification that they allow you to play backed up versions of games you've legally bought. Of course this is a valid reason to want to mod a console, but its also a "nudge nudge, wink wink" situation as the people who would actually mod their console only for playing backed up versions of their game would be in the extreme minority.

    But this bullshit justification has always been enough in the past to stop people from facing the consequences of selling chips to get around DRM in consoles. So how come the excuse didn't work this time? Is it because its a civil trial? I understand the burden of proof is much less in civil, but if this was a successful avenue for corporations to take, I'm sure Sony would have done it years ago with the original Playstation. Did the defendants in this case mess up and get caught actively encouraging people to use their chip to pirate games?

    I RTFA, but it was completely silent on how Nintendo managed to win this court case.

    • Re: (Score:3, Insightful)

      by bbqsrc (1441981)
      Did the Playstation chipping case occur before or after the Australia-US Free Trade Agreement? If you weren't aware, our copyright laws were heavily modified by that "trade" agreement.
      • by aussie_a (778472) on Thursday February 18, 2010 @07:29AM (#31182486) Journal

        Oh goodie. Yet another thing to thank Johnny Howard for.

        Given I'm talking about the original playstation (which is when I heard about this legal loophole that allowed stores to openly selling their services to chip playstations) and the PS2 came out in 2000, I'm going to assume it happened before the free trade agreement ;) (I don't remember the exact date I saw stores openly selling playstation modding services, but I do remember being quite surprised and either seeing something about it on the news or looking it up on the internet).

        That said don't misconstrue this as to have any actual sympathy for people selling devices to get around copyright protection. I understand that these devices can be used for homebrewing. And I'll support the first to support any company that actually tries to make a business out of homebrewing for the Nintendo DS. But first that company will have to do a pretty damn good job convincing me they really are trying to make a business out of homebrewing and aren't using it as a legal pretext to allow people to pirate DS games.

        • by discord5 (798235) on Thursday February 18, 2010 @08:07AM (#31182700)

          That said don't misconstrue this as to have any actual sympathy for people selling devices to get around copyright protection. I understand that these devices can be used for homebrewing. And I'll support the first to support any company that actually tries to make a business out of homebrewing for the Nintendo DS. But first that company will have to do a pretty damn good job convincing me they really are trying to make a business out of homebrewing and aren't using it as a legal pretext to allow people to pirate DS games.

          There is no business in homebrewing on the DS. But as someone who's spent a substantial amount of time in tinkering with the DS, let me reassure you that it's a lot of FUN! (Warning: your definition of FUN may vary). By todays standards you've got a very limited amount of room to do your work in and you have to make the most out of it, and most of the code you write is going to be really close to the hardware. If you're remotely interested in this sort of thing (even if you're not going to write a game), the DS is a pretty cheap ARM platform for all the hardware that's in it:

          • two small screens, addressable through several memory banks, with several modes of operation (including a rudimentary OpenGL like 3D API on one of the screens)
          • a touch screen interface
          • wifi
          • sound output via speakers and input via microphone

          The DSi even has two cameras onboard, but I don't think they're supported by libnds [devkitpro.org] yet.

          Oh, and of course, very interesting is that a lot of people have made the source code for their homebrew games available. Sometimes you'll just go and have a peek at how someone else did something, and discover something really ingenious, often optimized to give the best performance given the limited hardware available.

          But let's face the fact, without Nintendos official seal of approval (read: a wheelbarrow of cash and a reputable game-company backing it) there will never be any real money in whatever you're going to code. If you want to do something commercially, you'll have to buy Nintendos tools, etc. If tinkering with a piece of hardware you buy is going to make you a criminal, I fear for the next generation of geeks.

          • So if a project is too big for distribution as homebrew freeware but too small for a retail release through official channels, such as Bob's Game [wikipedia.org], what should a developer do?
            • by discord5 (798235)

              After 17 weeks of trying and failing to get Nintendo to provide Pelloni with the SDK, on December 11, 2008, he decided to publicly protest to Nintendo by locking himself in his room for 100 days or until they provided him with the SDK, whichever came first.

              Well, not that obviously.

      • by bug_hunter (32923)

        Yeah, that trade agreement hurt. As I'm sure the parent poster knows, but for others: Prime minister (at the time) Howard had to get us a trade deal with the US basically to show the Australian voting public that the whole joining America on Iraq was worth it as it was an unpopular move.

        The trade talks were going badly and at the last minute Howard made the executive decision to give in to a lot of US demands and take the hit. Showing the public that we had a US trade agreement seemed more important than sh

    • You're forgetting rule #1 of law: He who has enough money to buy off a judge, decides what the legal opinion will be.

      I'm sure the judge is enjoying his new Wii-shaped swimming pool.

      • by aussie_a (778472)

        I'm sure the judge is enjoying his new Wii-shaped swimming pool.

        Citation needed. Because making completely unsupported allegations like this is just ridiculous. Then again, this is slashdot where all corporations are evil.

    • by nedlohs (1335013)

      There were two reasons that modchips were OK in Australia.

      1. Australian law allows importing of content from overseas and circumvention of "region locking".

      2. The courts accepted the argument that the law said you can't work around devices designed "to prevent or inhibit the infringement of copyright" and modchips only allowed playing copies not making copies. Playing a copy isn't copyright infringement, making the copy is so there was no "protection measure" involved and so the law against circumventing th

  • Every single DSi-compatible DS cart, including Datel's Action Replay DSi [hackmii.com], includes portions of a pirated cart ROM. Nintendo started signing all executables and retroactively signing the existing library of DS games (they include the hashes built in to the DSi firmware), so the only way you can get an unofficial DS cart to run on the DSi is by pirating a game's executable/header and partial data and then using a data file exploit (data files aren't signed) to make it bootstrap your code. These DSi-compatible cartridges even show up with the game icon of a real game in the menu, since that part is also signed.

    If that isn't a lawsuit in the making then I don't know what is.

    • by drinkypoo (153816)

      Nintendo started signing all executables and retroactively signing the existing library of DS games (they include the hashes built in to the DSi firmware), so the only way you can get an unofficial DS cart to run on the DSi is by pirating a game's executable/header and partial data and then using a data file exploit (data files aren't signed) to make it bootstrap your code.

      In the USA this is not lawsuit fodder because of Sega v. Accolade. In Australia, you're still screwed.

      • Not necessarily. Sega v. Accolade was about copying code for reverse engineering (which is an entirely separate issue, and something that plenty of people are "guilty" of these days), and the trademark issue for consoles that require a trademark to boot (like the Nintendo logo required for GB/GBC/GBA games to boot). The only code copied in the end product was that required to show the trademark, which can probably be regarded as non-copyrightable or fair use (the only issue being the actual trademark displa

        • This is different, as the end product doesn't just incorporate a trademark or code that shows a trademark, but rather almost a megabyte of a game. That falls under copyright infringement, not trademark misuse.

          Sega v. Accolade didn't make a distinction based on the type or quantity of content. It simply stated that if you have to include the magical secret code for the game to function, you may include it. So far, that case has held up and/or not been challenged even in the face of the DMCA and its clauses about defeating a copy protection mechanism, so I figure it's probably pretty secure here too.

          IANAL, but in my opinion a whole different case would be needed to establish whether copying a large amount of code/assets/whatever can be regarded as fair use if it is a requirement to be able to run unlicensed original code.

          IANAL either, but; I agree that a whole different case would be needed, but there's already ample provocation to bring one if "they" think they can win. This hasn't happened, so I suspect that the lawyers don't agree with your assessment that it's clear infringement.

          This is a long way from just showing a SEGA or Nintendo trademark.

          The trademark was included in the code, not shown. The trademark display was a Dreamcast thing and came dramatically later. Go read up on SvA on Wikipedia please.

          • Re: (Score:3, Informative)

            by marcansoft (727665)

            Sega v. Accolade didn't make a distinction based on the type or quantity of content.

            Sure it did. As I said, there are two parts to the lawsuit: reverse engineering SEGA games in order to write your own, and copying the SEGA trademark as required for the console to boot. Part 1 doesn't apply here, because the game's code was not copied in order to write the ARDSi code - rather, it was copied because it's essentially a requirement for the console to boot. The distinction is that the lawsuit only relates to tr

            • Re: (Score:3, Interesting)

              by tepples (727027)

              It did not say:
              (3) You can copy almost an entire game verbatim in order to exploit it to run your own code

              Sega v. Accolade didn't, but another case did [wikipedia.org].

              • That one's certainly interesting. There are a few key differences there (55 bytes versus a megabyte, purely functional code for the toner crypto vs. an actual creative game, and consumable goods vs. nonconsumable cartridges), but some of the things the judges said do make me wonder. It would certainly be interesting if this ever got tested in court. Particularly, a comment by one of the judges is pretty favorable:

                I write separately to emphasize that our holding should not be limited to the narrow facts surr

    • If that isn't a lawsuit in the making then I don't know what is.

      I don't know much about copyright law in Australia, but at least in the United States, an argument from a copyrighted boot sector doesn't hold legal water, not even after the DMCA. See Sega v. Accolade and Lexmark v. Static Control Components.

  • How the... (Score:3, Interesting)

    by Pojut (1027544) on Thursday February 18, 2010 @08:57AM (#31182998) Homepage

    Considering this is Slashdot, how has no one explicitely pointed out that the R4 isn't a modchip?

    • by MobyDisk (75490)

      It isn't?

      • by Pojut (1027544)

        Not in the traditional sense, no. A mod chip is usually used to describe something that is attatched (either permanently or temporarily) to the physical board of a device. The R4 is known as a "flash cart"...it looks exactly like a regular Nintendo DS game cartridge, except there is a port on it to put a MicroSD card loaded with roms on it. There is no internal modification to the DS needed for the R4 to be used.

        Read more about it here. [wikipedia.org] The picture of the cart you see at the top of that article isn't an

        • by MobyDisk (75490)

          I own several, and I've always called them "mod chips" because it contains a "chip" and it modifies the function of the device. I suppose then someone could call any DS game a "mod chip" by my definition. But "flash cart" doesn't seem right since all games are flash carts too.

          Given the choice, "mod chip" better describes what it does. So until a new term arises, I'll stick with that.

          • Re: (Score:3, Insightful)

            by Pojut (1027544)

            That's just it though, it doesn't modify the functionality of the internal hardware in any way...as far as the DS knows, a normal game cartridge has been loaded into the cartridge slot. That's why you can use it without modifying the DS handheld.

      • by Abcd1234 (188840)

        It's not, no. It's just a cart with a microsd slot and the necessary electronics to convince the DS that the storage on that card represents a DS ROM. It's a modchip in the same way that a CF -> IDE adapter is a "modchip" for your computer.

  • It's your system (Score:3, Insightful)

    by Murdoch5 (1563847) on Thursday February 18, 2010 @09:41AM (#31183430)
    You should be allowed to do what ever you want to your system. Are they going to sue me for putting a mod chip in my Game Cube? Modding my SNES? Even modding my Gameboy. If you paid for the system you can do what you want to it.
  • by elrous0 (869638) * on Thursday February 18, 2010 @10:19AM (#31183904)
    It's funny now to go back and look at "Mad Max" and realize that the premise of that movie was that the future of Australia would involve too much lawlessness and a lack of legal enforcement (criminals going free, no law to protect citizens, etc.). Now here we are in the actual future and Australia of late is looking at actively censoring the internet, banning any videogame that shows blood, imposing criminal and civil sanctions on people for modding their videogame consoles, and even banning criticism of lawmakers. It seems that the Australia of 2010 turned out to be more of a police state than a free-wheeling lawless anarchy. Turns Tina Turner was right. We didn't really need Max at all.
  • by MobyDisk (75490) on Thursday February 18, 2010 @11:12AM (#31184646) Homepage

    I wrote a fairly popular DS app a few years ago, but I saw the writing on the wall for this platform. Between Nintendo making it harder to get these chips, and cell phones becoming more open, I don't see much point in writing for the DS. It's a shame: I think Nintendo could be where Apple is today with the iPhone, had they opened the DS. It had so much potential. Now, it is simply out of date.

  • While in the long run it should be ethical to mod a piece of hardware you bought yourself, I gotta admit I can list off about 16 people who all own DS's and Modchips, and half of them have yet to pay for a legal copy of a game for the DS. The other half run *mostly* modded games. None of them use the R4 for any legal 3rd party applications.
    • Re:Feh (Score:4, Interesting)

      by tepples (727027) <tepples&gmail,com> on Thursday February 18, 2010 @12:30PM (#31185902) Homepage Journal

      I gotta admit I can list off about 16 people who all own DS's and Modchips, and half of them have yet to pay for a legal copy of a game for the DS. The other half run *mostly* modded games. None of them use the R4 for any legal 3rd party applications.

      Then add tepples as #17 and replace "None" with "One". The microSD card that I used with my R4 back when I was still into DS includes MoonShell, DSOrganize, Colors!, Lockjaw, and a couple saved game management utilities, but no pirated DS games.

      • by MadChicken (36468)

        As #2, let me add PuzzleManiak, ScummVM (all legal games I have CDs for, plus Beneath a Steel Sky), Video Games Hero, DiceWars, DScent and AmplituDS. I also have physical copies of six DS games, which I loaded most of them on to pick and choose from when on the go.

        For commercial games, I either pay for it, find a freeware/OSS equivalent, or just play something else. I don't need to, nor desire to pirate games and it does gall me to hear all the experts here ignorantly stating that "everyone who has an R4

        • by tepples (727027)

          For commercial games, I either pay for it, find a freeware/OSS equivalent, or just play something else.

          I've been meaning to ask: What's a good "freeware/OSS equivalent, or [] something else" counterpart to Super Smash Bros. series or Animal Crossing series?

    • by Again (1351325)

      While in the long run it should be ethical to mod a piece of hardware you bought yourself, I gotta admit I can list off about 16 people who all own DS's and Modchips, and half of them have yet to pay for a legal copy of a game for the DS. The other half run *mostly* modded games. None of them use the R4 for any legal 3rd party applications.

      Same here. Even my fellow computer science friends that have flash carts use them almost entirely for pirating games. I have read on this page that there are some people who don't use the flash cart for pirating games but not pirating is very much the minority.

      There would be very little demand for the flash carts if they were only used simply for homebrew.

      Call me an ethical egoist but I've avoided buying myself a flash cart simply because of the piracy associated with it. I do not think that Nintendo mad

  • Y'know, I was actually thinking about getting a DS, but now that I can't load up emulators for older systems (like my GameBoy Pocket) or homebrew games, I might have to get a PSP. It seems you can't have both a system that's well known for a good library of games, popular, and a system that's open to homebrew (officially or otherwise) in the same package. Of course, there's Windows, I guess - but I'm tired of dealing with all of the slight-little driver issues to full blown failures of my computer and such
    • by Hatta (162192)

      You don't really want a DS for emulators anyway, not other than GB/GBC. The screen resolution is so small that even NES games have to be scaled down. The best genesis emulator does run quite fast, but it doesn't scale horizontally which can be a big problem if you're playing Thunderforce IV. Those cropped columns can easily be the difference between seeing forward enough to react or dying.

      The PSP is pretty nifty. You even get PSX hardware emulation. The DS does have a better library of games, but there

  • freedom protection (Score:3, Interesting)

    by sixsixtysix (1110135) on Thursday February 18, 2010 @01:00PM (#31186364)
    i don't care if 99% use something for piracy, the other 1% should never be affected. i should be allowed to tinker with whatever i buy, and if i can do something myself, i should be able to pay someone else to do it for me, whether it be modding my own hardware(or am i licensing the hardware?) or archiving my legally purchased media to whatever format i choose(seeing as i am allowed to record and archive content off the tv, why can't i use the internet as a dvr?).
    what's even more ridiculous is the bullshit development licensing consoles have in the first place. anyone for that system, would have to be for development licensing fees on windows, linux, mac, etc. they are all computers ffs!
  • Wasn't the concepts of First Sale Doctrine (which is hardly an American in origin) supposed to protect against this Digital Pesantry? Next thing you know Pepsi will be suing people for improperly drinking their soda due to EULA viloations (Must be served cold in a Pepsi branded glass with 6.8 ounces of ice per 1/5th litre of soda.)

    There is nothing now preventing ANY manufacturer prohibiting any non-sanctions periphrials. Nope you can only use SONY headphones with our Sony Walkmans, you can only use Ford ma

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