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UK Courts Rule Nintendo DS R4 Cards Illegal 254

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.

  • 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.

  • 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.

  • 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?

  • 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.
  • Re:Appeal (Score:2, Insightful)

    by franki.macha ( 1444319 ) on Wednesday July 28, 2010 @05:56PM (#33062444)

    A High Court is not the highest court in the UK, that would be the Supreme Court, I believe, although I'm not a lawyer.

    And I'm not sure what you mean by "It's not really making piracy *more illegal* is it?". Things can't really be more or less illegal, just more or less severely punished, but I don't think this ruling is about piracy as such, only things that could be used _for_ piracy.

  • by Dorkmaster Flek ( 1013045 ) on Wednesday July 28, 2010 @06:00PM (#33062496)
    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 interkin3tic ( 1469267 ) on Wednesday July 28, 2010 @06:01PM (#33062520)

    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.")

  • 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.
  • 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.
  • by Vahokif ( 1292866 ) on Wednesday July 28, 2010 @06:06PM (#33062590)
    You'd have a point if 99% of people used knives to murder and 1% used them to cook.
  • by interkin3tic ( 1469267 ) on Wednesday July 28, 2010 @06:12PM (#33062660)

    Yes, an R4 isn't as bad as either of these, but, where does it end?

    Where does common sense tell you it should end? Mine tells me it should end where waiting until I commit a crime with the thing would leave a lot of people in danger. A crack pipe and a piracy device, you can prosecute me after I use it illegally, the fact that it's harder to do that than try to prevent me from doing that doesn't matter. When talking about the ability to kill hundreds of people, that's another story.

    Seeing as how I quite obviously wasn't proposing a sweeping new legal change, I was expressing an opinion flashdrives, I didn't think I needed to spell out specific exceptions.

  • Re:To be fair (Score:5, Insightful)

    by HeronBlademaster ( 1079477 ) <> 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 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.

  • by HungryHobo ( 1314109 ) on Wednesday July 28, 2010 @06:33PM (#33062994)

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

  • by dgatwood ( 11270 ) on Wednesday July 28, 2010 @06:48PM (#33063158) Homepage Journal

    Given how much graffiti I see around here, I'd imagine that a sizable percentage of spray paint is used to commit vandalism. Yet I can still buy spray paint. Most cigarette papers in many places are used for pot, but those are still sold legally. Radar detectors are primarily used to evade prosecution for infractions, yet are legal in most of the U.S. And 100% of all VCRs and DVRs are used for copyright violations, which although exempted from prosecution by judicial rulings in the Betamax case, are still technically violations of the law, just (barely) protected violations. And so on. That argument doesn't hold water.

    At least in the U.S., it has nothing to do with the percentage of people who use something for illegal activity and everything to do with a giant pro-copyright lobbying effort by major corporations that also happen to heavily fund the political campaigns of both major parties. I'd imagine that either the same is true in the U.K. or it's caused by the U.S. throwing its weight around. It's also probably safe to say that Nintendo shopped around for the right legislative district to file a suit in so that they would get the most bang for their buck.

    It's not the first time Nintendo has been abusively anti-consumer rights, either. Remember Galoob v. Nintendo? They have a long history of abusing copyright to suit their ends. This is just another example.

  • Re: Stupid Courts (Score:5, Insightful)

    by lgw ( 121541 ) on Wednesday July 28, 2010 @06:48PM (#33063162) Journal

    As I understand it, there's a movement to ban any knife with a point, to reduce stabbings. Because banning tool #1 meant that people intent on violence switched to tool #2, banning tool #2 is sure to work this time! (What's that definition of insanty again?)

    It's at least hard to make a gun in your garage. But adding a point to a knife? Only the law will be pointless.

  • Re:To be fair (Score:2, Insightful)

    by HungryHobo ( 1314109 ) on Wednesday July 28, 2010 @06:51PM (#33063188)

    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.

  • 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 []:

    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.
  • by twidarkling ( 1537077 ) on Wednesday July 28, 2010 @07:12PM (#33063438)

    Dunno why you're devil's advocating to me, since I was just pointing out that his statement was already covered, but, eh, why not give you my take (using illegal and infringing interchangeably, since I'm talking generically)...

    I think a device should be judged based on a couple factors:

    1. Possible uses.
    2. Predominate uses.
    3. Harm to people from allowing illegal uses.
    4. Harm to people from removing device from circulation completely.

    Yes, this actually requires people to think, and not have cut and dried answers, but I think it's a fair way to evaluate something.

    If a device has 5,000 uses, good for it (1), but then everyone always just uses the two illegal uses (2), then you can judge the device as "bad," and get rid of it. If, however, it has two uses, and it's split 50/50 between illegal and legal uses, then you need to use tests 3 and 4. Say, your bomb doorstop. People would be killed if you, or someone you know, decided to set it off. That's a fairly massive amount of harm, and so your legal use doesn't outweigh the need to keep something like that safely locked away. Then you have test 4. Say a small group of people started using pacemakers to high-jack planes. Removing pacemakers from the market entirely just is not feasible. It would be incumbent upon airlines to secure planes against that interference.

    Of course, these are extreme examples, and where lines are drawn will be different with different products. Thus, arguing non-infringing use as a defence would be arguing that your personal gain, and the gain of others using it in your fashion, is greater than the loss suffered by allowing the illegal use to continue. In this case, it was decided that more people are using R4 cards in an illegal/infringing manner than are using it for legitimate uses, and the removal of the legitimate uses isn't doing any material harm to homebrewers beyond not being able to do homebrew, which Nintendo doesn't allow on their consoles any way, thus placing Nintendo in the same camp as Apple with jailbreaking, et al.

  • Re:DVD-ROM (Score:2, Insightful)

    by trouser ( 149900 ) on Wednesday July 28, 2010 @08:00PM (#33063926) Journal

    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 paper. The spoken word.

  • by tehcyder ( 746570 ) on Thursday July 29, 2010 @07:17AM (#33066900) Journal

    fish is rape!

    I think you're doing it wrong.

  • Re: Stupid Courts (Score:3, Insightful)

    by lgw ( 121541 ) on Thursday July 29, 2010 @01:42PM (#33072320) Journal

    Every day when I drive to and from work I'm surrounded by people who can kill or severely injure with the weapons they are holding. Some of them are clearly crazy! Somehow I'm not dead yet.

    Perhaps you missed the point (so to speak) that England did the experiment. Banning guns did not reduce the danger of being assaulted by a thug with a weapon, it merely made it impossible for the weak to defend themselves when it happens. This isn't a theoretical discussion.

  • by BigSes ( 1623417 ) on Thursday July 29, 2010 @03:50PM (#33074826)
    There is another great benefit that I haven't heard mentioned yet: I was on a 5 hour flight last week, and it was VERY convenient to take the DS, with the ezFlash card in it, and be able to play a variety of different titles on a whim. No carrying extra game cards, no fiddling with cases, everything just contained in one unit. Very convenient, and I would hope legal, if you own the games that you pack onto your SD card!

Would you people stop playing these stupid games?!?!?!!!!