Courts Tell Nintendo Piracy “Adds Functionality”


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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    Comment by Anonymous
    09:03 30/11/2009 # ! Neutral (+0.2)

    Let freedom reign I say!
    Good job Spain.

    Comment by Anonymous
    08:23 30/11/2009 # ! Neutral (0)

    sweet. +1 for me. i don't even use my ds for homebrew though, most of them suck.

    Comment by Anonymous
    07:54 30/11/2009 # ! Neutral (0)

    The fisrt time my own country does something like this WELL. YOu can't judge one thing because you can use it for illegal actions, as someone stated before, is like banning knives becasue you can kill with them, well it'll be a bit more relaxing. To the writer of this page: in Spain we consume other countries videogames, bit still copyright is hard, but it's still widely player, even thouhgh there isn't an industry, there's a big market

    Comment by Anonymous
    10:49 30/11/2009 # ! Neutral (0)

    Actually the thing about video games in spain is not entirely correct. Pendulo Studios based in Madrid is the creators of the Popular Runaway Adventure games.

    Comment by Anonymous
    11:21 30/11/2009 # ! Neutral (0)

    They should just post something in the DS' box:

    Warning: Use of pirated firmware and software forfeits 1-year warranty....

    That won't stop them.... but at least they will be rid of some responsibility....

    Avatar of Chris
    Comment by Chris
    12:55 01/12/2009 # ! Neutral (0)

    Now they just have to prove that pirated firmware/software was being used, oh wait...

    Comment by Anonymous
    12:32 30/11/2009 # ! Neutral (0)

    Certain types of modchipping was deemed legal in Australia because of this; it allowed Australians to play import games, which is within our legal rights, regardless of content manufacturers wanting to region lock.

    Avatar of Zetsumei
    Comment by Zetsumei
    12:31 30/11/2009 # ! Neutral (0)

    "Dear Nintendo"

    Comment by Anonymous
    07:01 30/11/2009 # ! Neutral (0)

    Well...if you have a rare original snes cartridge from 1980-1994(like seiken densetsu 3, or tatics ogre batle:the march of the black queen), you probably are favorable to backups, and know how them are a important thing. If the nintendo can't prevent ilegal uses of roms, the problem is all theirs.

    Avatar of El Chaos
    Comment by El Chaos
    05:58 30/11/2009 # ! Neutral (0)

    On an interesting note, the DSi LL's launch seems to be pretty successful.

    From Media Create:

    Comment by Anonymous
    05:39 30/11/2009 # ! Neutral (0)

    People use NDS for much more than games.

    Avatar of GodOfSpeed
    Comment by GodOfSpeed
    05:20 30/11/2009 # ! Neutral (0)

    LOL that court fail!

    Comment by Anonymous
    06:00 30/11/2009 # ! Neutral (0)

    Piracy, only an excuse.

    Capcom and other enterprises are angry because the second hand market and game importation make them lost money.

    NDS is a hanheld console with a nice selection of games covered with casual poor games.

    The "Imagine" series from Ubisoft almost destroys a nice handy console.

    The Gyakuten Saiban, known as Phoenix Wright saga in Europe is a best seller, like Hotel Dusk or Zelda Phantom Hourglass.

    Whatever, I own every ORIGINAL game (3 from GBA, 4 for NDS and sealed, because I use my flashcard to preserve these games in the best condition). Currently I'm looking for GS 1 and GS 4 special japanese editions.

    It isn't fair that in UK a game comes up and it costs 30 pounds (about 33 euros) and in Spain 60-70 euros.

    Thanks to the Internet, the people can preorder games, and if the game is MULTI5 (with several languages like spanish, german, italian, french and others), they get the cheapest version, because IT'S THE SAME FUCKING GAME.

    So, you don't want piracy in Spain?

    Easy, don't abuse us with the prices.

    In UK, high salaries, low prices.
    *In Spain, almost 4 million people is unemployed, low salaries, very high prices.

    Like a slogan from MediaMarkt in Spain: "I'm not dumbass".

    PS: Respect the others. I can see comments that make Chuck Norris cry.

    Avatar of Chris
    Comment by Chris
    12:30 01/12/2009 # ! Neutral (0)

    Hey hey, Chuck Norris has never cried. This is why we don't yet have a cure for cancer.

    Avatar of Fenek Alfa
    Comment by Fenek Alfa
    06:23 21/11/2010 # ! Neutral (0)

    I understand you pal, I've been shipping my games(altough on PS2) from Germany to Poland, and even when one euro was worth over 4 zlotys it was still cheaper than in here, and since most european PS2 discs were multilingual, it was indeed the same game.

    And, we have similar MediaMarkt slogan: "Not for dumbasses!"

    Comment by Anonymous
    06:20 30/11/2009 # ! Neutral (0)

    ......Nintendo is a japanese company, so why the SPANISH court??

    The Spanish Court even appears in the Konami vs. Upperdeck fiasco...

    Comment by Anonymous
    08:12 30/11/2009 # ! Neutral (0)

    You can't force a court ruling on another country so a court case needs to take place within the country where it will take effect.

    Comment by Anonymous
    07:12 30/11/2009 # ! Neutral (0)

    Would you have the same argument if a US court gave the same judgement ?

    Comment by Anonymous
    09:11 30/11/2009 # ! Neutral (0)

    Of course not. The US has the absolute hots for anything copyright related. Obsessively so.

    Comment by Anonymous
    Comment by Anonymous
    18:35 04/12/2009 # ! Neutral (0)

    Viva la liberty!

    Comment by Anonymous
    14:46 09/12/2009 # ! Neutral (0)

    Price discrimination isn't a bad thing, what if you're selling to a country that can't afford an equivalent North American price? You price down for the market there, everybody can afford it. Being a pirate myself, I declare this a court fail though. If the judges are pirates that would be win.

    Comment by Anonymous
    08:10 27/02/2011 # ! Neutral (0)

    like to see you say that after living in Ireland. I'd love games at US prices.

    Comment by Anonymous
    15:18 30/11/2009 # ! Neutral (0)

    Not the first time I've heard of such. If I'm not mistaken there was a court case in Australia involving modding the PS2, and the courts ruled in favor of the modders justifed by the purchase of imported PS2 games at more competetive prices (which would have normally been locked out). I figured the console makers would have learned from this as soon as Sony made the PS3's games region free.

    Comment by Anonymous
    14:52 30/11/2009 # ! Neutral (0)

    Seems like Spain made the right choice.

    Comment by Anonymous
    16:47 30/11/2009 # ! Neutral (0)

    So, if I want to develop homebrew for my ARM-processor based console I should either PONY UP OVER 3.000 USD for an ARM workstation or FORK OVER IN EXCESS OF 10.000 USD to become an "official developer" when I can get a 200 USD based device and run compiled code with a flashcart...

    So students should become rich overnight to afford the punk ass prices requested by HW manufacturers.

    F.U. ARM, F.U. Nintendo.

    At least IBM gives out the CELL emulator and compiler toolchain for free.

    11:22 01/12/2009 # ! Neutral (0)

    Actually some hacks associated with piracy do add functionality such as backingup games,homebrew,or installing linux on SD.
    It would be nice to have a non crippled browser and a media player for Nintendo hardware.
    It's good that not every country has as retarded IP laws as the US.
    Which are so bad I recommended every other country ignore them and pressure the laws to be changed as the US people complaining are not enough to end the faggotry or the media conglomerates who bribed and tea-bagged to make asinine laws like DMCA go bankrupt.

    Avatar of Sukunai
    Comment by Sukunai
    23:29 30/11/2009 # ! Neutral (0)

    Homebrew heheheh yeah right.
    If I want to listen to music, I'll use something that does it much better than my DS ever will. And watching a video on a DS? I have good vision, but they're not that strong. I'd rather carry a portable dvd player and watch an 8 inch screen that runs off of actual dvds.
    Nope, the fact is 90% of DS games were not worth stealing let alone paying 35 bucks for (if not more).
    It's not like they can protect them though. I happen to know, there isn't a single game I have ever been able to think up I can't get a download copy of, not one.
    Now you occasionally need legit for online usage. That's hard to beat.
    But flashcarts are like blank media. When is Nintendo going to expect a ban on dvds? I mean what do they think we're burning Wii games onto?
    I've never needed a back up copy for safety reasons though. A Nintendo game cart is likely the most survivable game media on the market. Even my son has failed to render any of his unplayable (and his room likely looks as bad as yours does kiddo).

    Comment by Anonymous
    21:53 30/11/2009 # ! Neutral (0)


    Let me see...

    I'm from Brazil, fucked poor country.

    Here, the games cost R$ 159, in the new fresh titles.

    Now, look that the base income salary is R$ 400.

    The DS itself costs R$ 600 on the "Original Shops".


    So, I'm a big fan of Pokemon titles. So I own a ORIGINAL crap Pokemon DIAMOND, with a stupid 10 X bigger package of the cartidge that only contains a stupid manual and places for only 1 piece os plastic, called "THE GAME".

    So got 250 hours of game. Top monsters, rare ones, event ones, etc...

    Than, unfortunelly, my home is invaded and the thieves take my bag with the FUCKING ORIGINAL GAME away.

    So, now nintendo got my money and I have no more they stupid ORIGINAL GAME.

    So, if I used from the very beginning the AWSOME R4DS, or other BEAUTIFUL flash cards, I could have a backup.

    Yes, I'm a DUMBASS, first for not do that (R4DS) at the beginning, and for spend R$ 159 in a game, just to the "RIGHT" thing to DO, "playing the original bla bla bla".

    In the 3º world this things will NEVER WORK, only for the RICH people.

    And yes, I'm MAD about that. Not blame Nintendo at all, but yes, THEY FUCKING "support" piracy in poors countries, by fucking doesn't get here the EQUILIBRIUM about the VALUE of they "gadgets".

    This ("piracy support") also include everything about games (YES, here, BRAZIL, a PS3 is R$ 1700 in the "ORIGINAL SHOPS").

    See ya!

    Comment by Anonymous
    01:01 30/11/2009 # ! Neutral (0)

    Without piracy my DS would be little more than a paperweight. $30+ for a portable game? Fuck me

    Comment by Anonymous
    00:44 30/11/2009 # ! Neutral (0)

    Nice comeback spanish court. Finally a fair use of logic.

    It's not that I condone piracy, but baning flashcarts is moronic. Even if they let you pirate games, they also add a hell lot more to do with the DS than Nintendo provides, so they got screded. A homebrew to draw and paint on the DS? Pure win.

    Avatar of maxchain
    Comment by maxchain
    01:01 30/11/2009 # ! Neutral (0)

    There's no excuse for the DS Lite not letting you schedule and doodle right out the box.

    Comment by Anonymous
    01:10 30/11/2009 # ! Neutral (0)

    This problem has stemmed since these devices first came out. While, yes, there primary intention WAS for backing up your PHYSICAL games in case of some kind of event rendered them inoperable, people would use them for other purposes, like pirating them. Hell, I have a friend who has all SNES and Genesis games but only physically owns a small handful.

    What Nintendo, and pretty much every other company, needs to realize is that you can't just say these devices are only used for one thing when everybody and their knock up mother knows otherwise. I mean, if Nintendo is really planing on taking on the pirating community, why not also go after these Emulators and ROMs as well. And while we're at it, how about these companies that make those Mod chips as well. Fucking Nintendo. So short sited. Can't see past their own greed.

    Comment by Anonymous
    13:58 30/11/2009 # ! Neutral (0)

    They should just monopolize the pirating market and sell the cartridges themselves.

    Comment by Anonymous
    00:37 30/11/2009 # ! Neutral (0)

    More often do I use my NDS to listen to music than I do to play (pirated) games.

    Comment by Anonymous
    01:27 30/11/2009 # ! Neutral (0)

    You should have purchases an MP3 player instead then.

    Comment by Anonymous
    05:10 30/11/2009 # ! Neutral (0)

    Why? since everyone has an mp3 player he should too? he can do whatever he wants with his gadgets.

    I use my DS for mp3, text files and dictionaries; I don't need a sheep to tell me what the fuck to buy to listen to music.

    Avatar of Unellmay
    Comment by Unellmay
    06:09 30/11/2009 # ! Neutral (0)

    Shut up and get an I phone

    Comment by Anonymous
    06:34 30/11/2009 # ! Neutral (0)

    I sure hope to hell you're trolling.

    Comment by Anonymous
    13:56 30/11/2009 # ! Neutral (0)

    Who the fuck wants an iphone when I already have four other gadgets that do everything and more? (excluding faggots who want to be "in")

    Comment by Anonymous
    21:49 30/11/2009 # ! Neutral (0)

    lolwut this better not be serious

    Comment by Anonymous
    03:45 30/11/2009 # ! Neutral (0)

    MP3 players only have 1 function, and that's to play music, possibly video and incredibly lame games.

    However if it's quality then no I wouldn't purchase a DS for media, that's why I have both so I don't have to choose.

    Avatar of Unellmay
    Comment by Unellmay
    04:51 30/11/2009 # ! Neutral (0)

    He should of

    Comment by Anonymous
    06:36 30/11/2009 # ! Neutral (0)

    he should have

    Avatar of Chris
    Comment by Chris
    12:00 01/12/2009 # ! Neutral (0)

    I use my PSP as an mp3 player. Works just fine. Then again, the screen doesn't work, so I can't really use it for anything else...

    Avatar of the7k
    Comment by the7k
    00:27 30/11/2009 # ! Neutral (0)

    Well hell, it's f'en true. I honestly use homebrew programs for the DS more than the games itself.

    To me, it seems like this is suing VCR manufacturers. Sure, you can use it to tape Sunday Night Football without the expressed written consent of ABC and NFL, but that's not all you can use it for.

    Avatar of Chris
    Comment by Chris
    11:53 01/12/2009 # ! Neutral (0)

    TV broadcasters tried to actually. That case was used in the defense of several trials against Peer-2-Peer programs in the past decade for the very same reason.

    Avatar of Tex_Arcana
    Comment by Tex_Arcana
    00:17 30/11/2009 # ! Neutral (0)

    In credit to the Spaniards, it looks like they are attempting to give the issue a fair hearing, even if it may not be the most nuanced. In other words, it's far from the 'Critical research failure' technology hearings get in the US.

    I still expect publishers to fight this tooth and nail, rather than admit that current zoning laws are flawed, though.

    Comment by Nin
    01:11 30/11/2009 # ! Neutral (0)

    But the reason the Spanish courts ruled that the cartridges should still be legal is ridiculous:

    "Even though the cartridges are intended for piracy, you could also use it for good stuff so we won't ban it."

    If that's the case, shouldn't murder also be allowed because it helps reduce over-population at the same time?

    Comment by Anonymous
    01:23 30/11/2009 # ! Neutral (0)

    it's more like not banning knives because they can be used to others things besides killing people imho

    Avatar of nocturne
    Comment by nocturne
    02:50 30/11/2009 # ! Neutral (0)

    Your analogies really are the best.

    Avatar of thugangel
    Comment by thugangel
    02:05 30/11/2009 # ! Neutral (0)

    The courts are not promoting piracy, nor anyone would promote murder. If you wanna control population, go fight for your right to have legal same sex marriage.

    +0.1 for Anon.

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