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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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  • by Reilaos (1544173) on Wednesday July 28, 2010 @05:43PM (#33062256) Homepage

    My baseball bat is a murder weapon. The fact that I can use it to play baseball is not a defense.

    Guns for hunting/murder.

    Recording devices for reminders/spying.

    Tacos for eating/poison delivery.

    • Or just apply it to a DVD-ROM, USB drive etc.

      • by PopeRatzo (965947) * on Wednesday July 28, 2010 @06:09PM (#33062630) Homepage Journal

        Just because my Logitech 5-button optical mouse (black) can be used as a controller for the cursor on my personal computer does not mean it cannot also be used to crush the ants that have invaded my bedroom because of all the Cheetos crumbs I dropped during last night's marathon session of Starcraft 2: Liberty (the RELOADED release*).

        Thus, it must be regulated as an insecticide.

        [*please note this post is for entertainment purposes only and should not be misconstrued as a description of reality, since I'd never play a pirated game since that would be wrong (SEED, YOU BASTARDS!)

      • 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 Nadaka (224565)

      Likewise I am guilty of:
      hacking because I own a computer,
      blowing up the world trade center because I own a box cutter,
      being a threat to national security because I am intelligent enough to see how utterly insane that ruling is,
      etc.

    • by mykos (1627575)
      Maybe everyone in the UK should have their hands, feet, eyeballs, and vocal cords removed. Those can also be used to infringe on copyright.
    • My copy machine, too: the mere fact it can be used for a non-infringing purpose is not a defense.
      • Re: (Score:3, Interesting)

        by socz (1057222)
        I've been told by many "technicians" that if you attempt to copy currency, the machine will stop working and give a service code error. Mind you, these are my "friends" who I talk to out of work. I don't know how much to believe to be honest... maybe they just tell them that so they repeat it and discourage others from even scanning money? Who knows
        • Re: (Score:3, Insightful)

          by HungryHobo (1314109)

          only one way to be sure- scan a note and see. :D

        • 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 socz (1057222)
            The machines, "on scanning currency will cease to function and display an error code specifying exactly that. It can be reset, but the technicians must report it." I don't know how much if any of that is BS, but MOST people aren't willing to find out... :P
            • by lgw (121541)

              In the US it's perfectly legal to copy currency at 50% or 200% magnification (as long as you don't try to pass it as real money). You see examples of this in print ads from time to time, and in books about currency.

        • Re: (Score:3, Interesting)

          by internewt (640704)

          There is a blackbox bit of software bundled with most (all?) proprietary scanning software that stops you scanning money, so what your copier-guy friend is saying is probably true. I found out about the software years ago when I first got a scanner, because to me it is obvious to try and casually copy money to see just how convincing (or not) it comes out.

          I knew it would be crap quality - a 300dpi HP inkjet (a 595C, IIRC) on normal copier paper will never look good. It's just that the DRM jumped up and said

        • sounds like a easy dos attack! I hope it's a easy reset.

    • as long as we're applying logic:

      there are scientists who know how to make nuclear bombs!
      Fred Phelps for president!

    • Re: (Score:3, Insightful)

      by interkin3tic (1469267)

      Heck, I'd say I -should- have a right to own things which are only really usable for illegal activities. If I want to use a crackpipe as a paperweight but never use it to smoke crack (and I, in fact would not use it to smoke crack), then I should be able to.

      ("should", not "do right now.")

    • Re: (Score:3, Funny)

      Logic? That's only a device to circumvent a judge's arbitrary ruling, and thus prohibited by law.

    • Indeed, we can apply that logic to many things.

      Cocaine is a local anesthetic, so it should be stored in doctor's offices and clinics.

      Heroin is an analgesic and pain killer, so it's fine if you want to keep a couple bricks at home.

      This is a fun game.

      How about meth as an example. It is legitimately used to treat ADHD and obesity. If you have a prescription for the commercial brand of meth, then it's legal for you to own it. If you don't have a legitimate use for it, even though other people might, it's not

    • by Again (1351325)

      My baseball bat is a murder weapon. The fact that I can use it to play baseball is not a defense.

      Guns for hunting/murder.

      Recording devices for reminders/spying.

      Tacos for eating/poison delivery.

      I'm going to go ahead and play devil's advocate here.

      The baseball bat is designed for something other than murder and is frequently used for something other than murder.

      The R4 is not designed for homebrew and is very infrequently used for homebrew.*

      Just because an argument can be taken the nth degree to prove your own point doesn't mean that it should.

      *This is my anecdotal experience. I have seen R4 chips very often and I have never seen them being used for homebrew.

    • 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.

    • by rxan (1424721)

      If something is illegal because it is generally used for illegal purposes, I have no problem with governments disallowing it. These game copying cards are most likely used to illegally copy games. Some people might buy the cards to legally backup their games, but most people are buying them to illegally copy the games.

      *reader of this comment pulls out the "You need proof that it is used for illegal purposes!" card*

      Well, show me the proof that it is generally used for legal purposes. If a government allows g

  • Precedent set (Score:3, Insightful)

    by commodore64_love (1445365) on Wednesday July 28, 2010 @05:43PM (#33062260) Journal

    >>>'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.'
    >>>

    And then a few weeks later, other UK judges outlawed the use of VHS tapes, DVD-Rs, and MP3 recorders, for the same reason that these blanks can be used to copy movies and songs.

  • Read the decision (Score:3, Informative)

    by Anonymous Coward on Wednesday July 28, 2010 @05:48PM (#33062320)
  • Jailbreaking (Score:5, Interesting)

    by MindlessAutomata (1282944) on Wednesday July 28, 2010 @05:50PM (#33062366)

    One big feature of jailbreaking iPhones is that you can install apps on your iPhone in a similar manner that you could install NDS games on an R4. Does this also mean that jailbreaking an iPhone is illegal there, too? It should be noted that a major feature of the R4s, and similar devices, was that you can run homebrew on your NDS, which I have. There's some decent homebrew (not that great of a selection, but still some good stuff) available, such as the (excellent) roguelike game POWDER [zincland.com].

    • Technically, this ruling doesn't outlaw "jailbreaking" (or whatever that scene calls it) the DS, you just can't buy the hardware that enables it. If you found some software-only method of achieving this, that wouldn't be covered by this ruling.

      If cracking the iPhone needed a special SIM card, instead of just running some code to crack it, this ruling would make such a product illegal.

  • DVD-ROM (Score:3, Insightful)

    by SimonTheSoundMan (1012395) on Wednesday July 28, 2010 @05:52PM (#33062384) Homepage

    So I guess this makes all optical drives illegal too then.

    Well, they haven't, but they may as well do it.

    • Re: (Score:2, Insightful)

      by trouser (149900)

      Why not ban hard drives too? And since many people fill their hard drives with copyright infringing material downloaded using Bittorrent we'd best ban that. Bittorrent depends on the Internet. The Internet has does serve some legitimate purpose but this hardly mitigates the fact that it is enables piracy. Ban that too. I have a TV capture card in my PC. Piracy!!! Of course TV capture would be nothing without TV broadcast, a piracy enabling technology if ever I saw one. VCR. Blank cassette tapes. Pen and pap

  • by Sheetrock (152993) on Wednesday July 28, 2010 @05:52PM (#33062390) Homepage Journal

    ...that rampant piracy has diminished the useful and legitimate purposes of these devices to such a degree that they must be criminalized. I grew up in an era where "homebrew" was the only type of gaming there was. One could say that it actually created the game industry.

    But the game industry has grown up now into serious business, and while landing a couple of pasted-together white blocks onto a platform of larger white blocks used to be great fun, I don't think anybody wants to give up Mario 25 and Zelda 21 just yet.

    Is that the price to be paid in a world where these devices are permitted to exist? A better question, perhaps, is do you want to take that chance?

    • Re: (Score:3, Insightful)

      Unfortunate indeed. I recently discovered the wonderful world of open source games. I find it to be a pleasant return to something akin to the days of homebrew gaming you mentioned. I'm not throwing away my consoles just yet, but it's great to be able to tinker and learn some stuff about game development in my spare time freely.
    • by fuzzyfuzzyfungus (1223518) on Wednesday July 28, 2010 @06:02PM (#33062542) Journal
      Yup, I'm pretty sure we do. Regardless of one's feelings about piracy, positive or negative, it is an uncomfortable fact that any combination of law and technology sufficient to stamp out, or even seriously inconvenience, piracy will necessarily be downright authoritarian in power and scope, corrosive to privacy, and almost perfectly suited to the suppression of any other flavor of information, art, culture, speech, etc.

      These are just architectural necessities of any anti-piracy system that isn't going to be a penny-ante joke. Whatever you think about piracy, they are quite arguably too high a price to pay.
      • Just for the sake of accuracy, there is one combination of law and technology that doesn't fit this pattern; but we'll be exporting icicles from hell, by unicorn, before it comes up:

        The abolition of intellectual property(and related things like DRM anti-circumvention laws) would make piracy impossible by definition, while sharply reducing the power and scope and suppressive capabilities of the combination of law and technology.

        I don't get the sense that this scheme has many defenders, certainly none w
  • by mykos (1627575) on Wednesday July 28, 2010 @05:55PM (#33062438)
    Plaintiffs and defendants should just fax the judge their financial records for the last year.
    Whoever has the most money wins the case.
    That way, we could save taxpayer money and the verdicts would invariably come out the same way as they would have through trial.
    • That's not very fair.
      It should be like Top Trumps, where "most money" is just one of the stats.

  • What about the tons of other flash card carts for the DS? Why single out only the R4? I've had one in my DS for a few years now (bought one when they first came out) and it's still running strong. I've done all kinds of things with it too, ebooks, mp3, etc. Of course you can play pirated games but no one forces you to commit infringement and put pirated games on it. There's plenty of legal homebrew. So because the ability to use a device for piracy is the court going to make computers, DVD players, CD
    • What about the tons of other flash card carts for the DS? Why single out only the R4?

      The article mentions every SLOT-1 card I could think of: "As well as the R4 DS, the ruling covers the following: M3 DS, DS One Supercard, DSTT, DS Linker, Acekard, CycloDS Evolution, N5, and EZ."

  • To be fair (Score:5, Insightful)

    by Vahokif (1292866) on Wednesday July 28, 2010 @06:03PM (#33062556)
    Do you seriously think most people buy R4s for homebrew? That's like saying most people use torrents to get Linux ISOs.
    • Re:To be fair (Score:5, Insightful)

      by HeronBlademaster (1079477) <heron@xnapid.com> on Wednesday July 28, 2010 @06:13PM (#33062674) Homepage

      Will that be your response when this UK court also bans any software which uses BitTorrent?

      After all, the fact that it has non-infringing uses is irrelevant, right?

    • by grantek (979387)

      Regardless, they're the ONLY way to play homebrew on the DS. Nintendo would have a case if they allowed unsigned code.

      • by tepples (727027)

        Regardless, they're the ONLY way to play homebrew on the DS.

        Nintendo's flippant response might be as follows: "Of course you can run unsigned code on a DS: just duct-tape a PDA to it." In other words, switch to an Archos 5 or a Pandora [openpandora.org].

    • Actually, I bought an R4 for homebrew. There are a lot of simple games and applications like Colors! [collectingsmiles.com] that easily make the cost worthwhile.
    • Re: (Score:2, Insightful)

      by HungryHobo (1314109)

      It doesn't matter if 90% other people use bit-torrent to download ROMs, the latest crappy films or porn.
      It doesn't matter if 90% other people use r4 cards for ROMs.

      If I am doing no such thing you have no right to stop me going about my legal business just because you're too impotent to deal with those other guys without fucking around with what I have every right to do.

    • by h4rr4r (612664)

      No, but a fair amount of them use it to get WoW patches.

  • by nweaver (113078) on Wednesday July 28, 2010 @06:15PM (#33062710) Homepage

    I actually have an R4RS that I bought a couple years back for homebrew development/hacking (but, in the end, the wifi wasn't good enough), but to be perfectly honest, the market for these really is 99%+ for piracy.

    Its not that they don't care about noninfringing usage, the court just realized that the noninfringing usage is almost irrelevantly small.

  • Thanks, Nintendo! (Score:5, Interesting)

    by _KiTA_ (241027) on Wednesday July 28, 2010 @06:18PM (#33062748) Homepage

    I had a CycloDS for my DS, but your DSi's firmware blocked it from working. This page reminded me to look, and sure enough, I can now buy a nice Acekard 2i [gbatemp.net] for like $15 [shoptemp.com] and/or a Supercrad DStwo [gbatemp.net] for about $35 [shoptemp.com] that does things your console should do natively (such as GBA and SNES emulation), both of which use the same 16 GB Micro SDHC card that my CycloDS uses, all of which will work with my nice Nintendo DSiXL.

    Of course, since I own physical copies of all the games I put on my flash cart, it's all ethically sound, if not legally unassailable. Fortunately for me, I am much more concerned with living ethically, if not legally, especially when in regards to stupid, anti-consumer laws like the ones that would outlaw this sort of thing. Although Nintendo might be screwed even in that case, because "Jailbreaking" a mobile device [cnet.com] is now legal in the US. Since my DS is a mobile device, and the Acekard / DStwo are methods of "jailbreaking," -- i.e., running unapproved software -- well, seems to me the much loved DMCA that Nintendo would no doubt use to shut these things down in the US... wouldn't actually shut them down.

    So thank you, Nintendo. Thank you for reminding me to look for a DSi compatible flash cart, and reminding me I need to do my part to support small development studios like the Supercard and Acekard teams.

  • by tlhIngan (30335) <slashdot AT worf DOT 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.

  • Funny, really ... (Score:5, Insightful)

    by ScrewMaster (602015) on Wednesday July 28, 2010 @07:04PM (#33063342)
    UK High Court

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

    US Supreme Court in Sony vs. Universal [wikipedia.org]:

    On the question of whether Sony could be described as "contributing" to copyright infringement, the Court stated:

    [There must be] a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses....


    It's interesting that the two courts took diametrically opposed positions on this subject. Of course, Congress pretty well neutered that decision with a succession of purchased laws culminating in the Digital Millenium Copyright Act, but that was one case where the Supremes ultimately got it right.

    And then, after all the hate and discontent they raised over the advent of the VCR, the movie industry went on to rake in billions selling VHS movies on writeable media played back on the previously-vilified Video Cassette Recorder. Money they would never have seen had the hardware companies not been free to develop and market something new. That was not a surprising attitude, though: the content cartels have always been about maintaining the status quo, and can't quite seem to wrap their heads around the fact that change can make money. But that would require them to actually think, and maybe do a little innovating of their own. But history has demonstrated conclusively that they don't know how to do that.

    Anyone remember Jack Valenti's impassioned monologue about how the VCR would "destroy the industry"? Yeah. He was spot on with that one, wasn't he. This is also the guy who said, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." Right on, Jack. Point is, these are people who don't have anything on their minds but control, control and more control. It's not even about the money, it's about control. They've controlled matters so well, in fact, that I won't purchase a game console. I don't like who I'd have to thank for it, and I don't like their business models, and I don't like the fact that the machine isn't really mine. You want to lease the box to me, that would be different. But they don't: they want me to pay cold hard cash for the illusion of ownership (ha, kind of like buying a house, when you think about it.)

    Fact is, the content industries are mostly led by short-sighted fools. At some point, their stockholders are going to have to rise up and slay them, because they're throwing money away by not going with the flow, by not learning from history and their own mistakes, by being greedy to the point of sociopathy.
  • The mere fact that the device can be used for a non-infringing purpose is not a defence.

    Some real world counter examples:

    • It is not illegal to manufacture, sell or buy radar detectors, but it is illegal to use them in in most countries.
    • It is not illegal to manufacture, sell or buy cars, but it is illegal to run over pedestrians with them.
    • It is not illegal to manufacture, sell or buy forks, but it is illegal to stab people in the eyes with them.
    • And so on...
  • I understand that in many countries it is now illegal to distribute a device that circumvents a copy-protection mechanism, but where are the alleged victims here ? The article and the case seem to revolve around Nintendo, but they're just supplying the platform aren't they ?? They don't own the copyrights that are being infringed as, surely, they belong to the games manufacturers - who appear to be absent...

    • by NiteMair (309303)

      I'm guessing Nintendo "represents" these very same game manufacturers because Nintendo licenses the right to produce software for the platform. Thus, as a result, Nintendo controls who can write software for this platform, and makes money from the manufacturers as a result - thus the manufacturers are "lucky" to get anything at all, since Nintendo makes the rules (sound familiar? hint: app store).

      It's important to note that Nintendo does produce games of their own as well.

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