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UK Courts Rule Nintendo DS R4 Cards Illegal 254

Posted by Soulskill
from the homebrew-is-not-for-you dept.
CheShACat writes "A UK high court ruled today that R4 cards for the Nintendo DS are illegal, finding two vendors guilty of selling 'game copiers.' The ruling by Justice Floyd is quoted as saying, 'The economic effect on Nintendo of the trade in these devices is substantial as each accused device can store and play copies of many Nintendo DS games [...] The mere fact that the device can be used for a non-infringing purpose is not a defence.' No word in the article as to what law in particular they were found to have broken, nor of the penalty the vendors are facing, but this looks like bad news for all kinds of hardware mod, on any platform, that would enable homebrew users to bypass vendor locks." Nintendo won a related lawsuit in the Netherlands recently, in addition to the one in Australia earlier this year.
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UK Courts Rule Nintendo DS R4 Cards Illegal

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  • Read the decision (Score:3, Informative)

    by Anonymous Coward on Wednesday July 28, 2010 @05:48PM (#33062320)
  • by twidarkling (1537077) on Wednesday July 28, 2010 @05:49PM (#33062344)

    The mere fact that the device can be used for a non-infringing purpose is not a defence

    Right in the summary. They know, they just don't care.

  • by tlhIngan (30335) <slashdot@ w o r f.net> on Wednesday July 28, 2010 @06:28PM (#33062904)

    Those of you silly enough to argue that living is infringement failed to read further into the article that says that bypassing a copy protection device is illegal. Even if the bypassing device has legitimate uses.

    Sound familiar? It's like the DMCA, though the DMCA was updated earlier this week with a ruling that said that no longer applied for fair use (which still blocks space shifting, but allows the formerly illegal mashups from DVDs and Blu-Rays, short clips etc.).

    So jailbreaking is still illegal in the UK, you cannot pick DRM locks, and you cannot bypass copy protections that may be present for whatever reason.

  • by lgw (121541) on Wednesday July 28, 2010 @06:42PM (#33063094) Journal

    Well, modern copy machines won't scan modern money, or anything with the EURion constellation [wikipedia.org], but I haven't heard of one that would stop working afterwards. That pattern of circles can come in handy if you want to make a convention badge or some such that can't be photocopied.

  • by djdavetrouble (442175) on Wednesday July 28, 2010 @07:11PM (#33063422) Homepage

    The DSi Flash Carts contain an actual poriton of a copyrighted rom that contains an exploit.

    How legit is that?

  • by cappp (1822388) on Wednesday July 28, 2010 @09:35PM (#33064256)
    It’s impressive what a little selective quoting can do. The ruling in full [bailii.org] reads

    One such suggested lawful use is for home-made games. However, such use will still circumvent the ETM, or otherwise the game will not play. The mere fact that the device can be used for a non-infringing purpose is not a defence, provided one of the conditions in section 296ZD(1)(b) (considered below) is satisfied.

    The judge goes into a nuanced consideration of the law as it stands, the snippet that’s being quoted is a taken out of context and ignores that huge modifier at the end there. The section in question states:

    "(1) This section applies where –
    (a) a technical device has been applied to a computer program; and
    (b) a person (A) knowing or having reason to believe that it will be used to make infringing copies -
    (i) manufactures for sale or hire, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device; or
    (ii) publishes information intended to enable or assist persons to remove or circumvent the technical device.

    (2) The following persons have the same rights against A as a copyright owner has in respect of an infringement of copyright –
    (a) a person –
    (i) issuing to the public copies of, or
    (ii) communicating to the public,
    the computer program to which the technical device has been applied;
    (b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a);
    (c) the owner or exclusive licensee of any intellectual property right in the technical device applied to the computer program

    (6) In this section references to a technical device in relation to a computer program are to any device intended to prevent or restrict acts that are not authorised by the copyright owner of that computer program and are restricted by copyright.

    (8) Expressions used in this section which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part."

    The judge then goes on to establish the multi-stepped test required for a finding

    a claimant under s.296 needs to show the following things:

    (a) that there is a "technical device" which has been applied to a computer program;

    (b) that the defendant:
    (i) has manufactured, imported, distributed, sold etc, means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device;
    (ii) knows or has reason to believe that that means will be used to make infringing copies of the computer program.

    (c) that the claimant has standing to bring their claims because: (i) it is a person issuing to the public copies of, or communicating to the public, the computer program to which the technical device has been applied, or, if not such person, it is the owner of the copyright in the computer program, or his exclusive licensee; and/or
    (ii) it owns or holds an exclusive license to any intellectual property right in the technical device applied to the computer program

    Hardly the kind of extremist reasoning thats being suggested.

  • Re:To be fair (Score:1, Informative)

    by Anonymous Coward on Thursday July 29, 2010 @03:04AM (#33065824)

    They won't ban BitTorrent for the same reason. The BBC article linked is particularly unhelpful as it takes that quote out of context. The full quote is "The mere fact that the device can be used for a non-infringing purpose is not a defence, provided one of the conditions in section 296ZD(1)(b) (considered below) is satisfied."

    This is a very specific case to a very specific piece of law (Section 296ZD of the Copyright, Designs and Patents Act 1988) that covers dealings with some sort of product whose main purpose is to circumvent DRM. This is not directly copyright related. This is only about circumventing DRM.

    BitTorrent does not circumvent DRM and so would not fall under this law. It might fall under the Digital Economy Act (Section 17) though, if that ever gets implemented.

    I strongly recommend that anyone who wants to know what actually happened read through the judgment, already available online here: http://www.bailii.org/ew/cases/EWHC/Ch/2010/1932.html [bailii.org]

  • by Barefoot Monkey (1657313) on Thursday July 29, 2010 @03:55AM (#33065998)

    The DSi Flash Carts contain an actual poriton of a copyrighted rom that contains an exploit.

    How legit is that?

    Pretty legit, at least in the US, according to Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) From Wikipedia:

    The court's discussion of the second factor highlighted the unique challenges of applying copyright law to software. Ideas embedded in, or functional elements of software are not protected by copyright, but expression of those ideas – the code – is protectable; but how can someone access the functional idea without copying the protected code? Essentially, the court concluded that the only way to get to the unprotected functional elements in the software was for Accolade to copy the entire protected expression of those functional elements, and therefore, this factor, the nature of the copyrighted work, also weighed in Accolade's favor.

    Regarding the third factor, the amount copied, the court reiterated that Accolade had copied entire Sega programs. However, Accolade extracted the functional aspects and then wrote their own expressive code, thus ultimately using only minimal amounts of protected material in the final Accolade game. The court afforded this factor little weight.

    The court determined that the fourth factor, effect on the market, also weighed in Accolade’s favor. A court may not find fair use if an infringing work would take the place of the original work in the market. But the court notes that the Copyright Act was not intended to create monopolies, it was intended to foster creativity. Thus, the court finds that Accolade’s largely original work is merely an acceptable market competitor of Sega's work. While natural market competition might have a negative financial effect on Sega, the court found that the benefit to consumers compelled a finding that the fourth factor weighed in Accolade’s favor. Therefore, the court found that Accolade had engaged in fair use.

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