Courts Tell Nintendo Piracy “Adds Functionality”

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Nintendo has suffered a rare courtroom reverse in its efforts to discourage rampant piracy on its Nintendo DS system, with courts telling it that flash cartridges “add functionality,” even if they admit most of this functionality is intended to enable copyright infringement.

Spanish courts ruled that though these cartridges are used in piracy (in this case in a product sold by Movilquick, which Nintendo wanted to see the end of), they also have other uses and thus Spanish copyright laws against “anti-circumvention devices” do not apply:

[The device] may be used by acquirers for both pirating games and for adding legitimate functions, including use of legitimate games from other countries, backing up original games, or various other functions such as managing photos, music or operation of free software.

Ultimately what occurs is the manipulation of hardware to extend its functionality, allowing use for both legitimate and illegitimate ends, but not only illegitimate ones.

No honest observer could deny that such devices are overwhelmingly manufactured and marketed based on their use in enabling piracy, with “backups” and “homebrew” merely used as a euphemism and legal pretext to allow the industry to survive.

However, the insistence of content providers on attempting to geographically restrict distribution of their products in a crude attempt at price discrimination certainly does supply a compelling legal use for these devices – for region locks to provide a legal justification for piracy devices is an irony indeed.

Of course, it must also be noted that Spain has no significant domestic gaming industry to speak of, a situation perhaps likely to persist…

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