NOA to Sue for Flash Advance Linkers 688
SamMichaels writes: "I just received a letter from Nintendo of America claiming that Flash Advance Linkers violate the DMCA...I'm to cease sale in my store, and surrender all remaining units to Nintendo. The letter is posted on the front page of Zophar's Domain. Any pro bono lawyers out there?"
Do what? (Score:4, Insightful)
Here's the info. (Score:4, Informative)
The Flash Advance Linker is the first professionial mass produced development device for the Gameboy(TM) Advance.
Just like a Cradle for your Palm or other Handheld Computer, the GBA Flash Advance Linker is plugged in to the printer port of your PC. Once connected, it can simply send and receive game ROM data from or to the plugged in game or Flash Cartridge.
Reading out game ROM data (dumping):
Once your original GBA game has been plugged in to the Flash Advance Linker, you can use the provided software to read out the rom data and save it to your local PC harddrive as a so-called ROM file. The Flash Advance Linker also lets you read out the savegame to store it in an extra file - you won't use any game data, e.g. when the battery in your original GBA game gets empty.
Sending ROM files to your empty cartridge (Flash Advance 64/128/256M):
Simply use the provided software to open the ROM file from your harddrive, it will then send the data through the printer port to the Flash Advance Linker, which will store the data in the Cartridge - just as when you connect your MP3 Player to your PC to 'fill' it with songs. Totally easy!
***
Yup, this can be used to pirate games. It can also be used to back them up, too... But hey, the DMCA doesn't care about that.
Want to arrest me for rape? (Score:5, Funny)
Surely there must be a distinction between owning equipment that has the potential to be used for copyright infringement and actually using it for illegal purposes. CD burners, floppy drives etc are legal so I can't see why this product can't be legal too.
Unfortunately I don't think it's going to be a case of who's right and who's wrong but rather Nintendo has a bigger legal budget than ZD.
Re:Want to arrest me for rape? (Score:5, Informative)
CD burners, floppy drives, VCRs cassette tapes, photo copiers, etc. have substancial non-infringing uses. Nintendo will argue that this product does not.
Re:Want to arrest me for rape? (Score:3, Interesting)
They don't define "computer" in the law though. Since a game console is a computer in fact, you'd have a pretty good shot at convincing a judge...
Yet another reason to hate the DMCA (Score:3, Informative)
If Nintendo were to lose said suit, the only harm to them is the legal cost which is a drop in the bucket for them. If the accused loses, then there's legal fees and whatever damages are awarded. Heck, even if the accused wins, that will be after years of protracted legal rangling at exhorbitant costs. So the DMCA completely slants the legal playing field to the accuser. If I'm NOA, or any other company, it is in my best interest to swamp people with cease and desist letters because the odds are nobody will try to fight me. If they refuse, then it's up to me whether I feel like going after them.
Smart companies will, of course, pick and choose their battles, to work out a strong court precedent. Why go after the New York Times for publishing something when you can go after a hacker magazine? Eventually a strong legal history develops that pretty much gives any device manufacturer carte blanche to declare how people are allowed to use their systems, regardless of copyright issues.
Seems to me that there needs to be some protections in the DMCA for false accusations. While a company has to swear they are not purgoring (sp?) themselves it's next to impossible to prove that they did. They can simply say that they thought it was a violation and turns out they were wrong. There needs to be some penalty for going after somebody, otherwise there's no reason not to try to go after everybody on a whim.
Oh, and as a side note, is it just me, or did the Customs officials just get handed a huge amount of power under our noses?
Re:Do what? (Score:2, Interesting)
My unit has 256 Mbit (which is only 32 MB)
and costs almost as much as a 256 MB compact flash.
Unfortunately the only thing to justify buying one would be comparing the price with the price of the games. However, Nintendo could easily cut out the market if they were to release a $5 cable to make kids download single-level demos of the games they could buy - the GBA don't need any flash cartridge to do that...
Re:Do what? (Score:3, Informative)
Copyrights cannot be lost by not defending them, only trademarks.
So wait... (Score:4, Interesting)
And did these units come through customs in the first place? If so, why weren't they held up then????
Re:So wait... (Score:5, Interesting)
How is the parent post flamebait?
You're right, he shouldn't have to turn the stock over to Nintendo. What the heck do they have to do with it? Are they some kind of governmental body or NGO? I mean, *he bought and paid for the units.*
Originally, there was precedent for banks seizing property if you didn't pay them, because, let's face it, you owed them money. This was similar to your neighbor coming and beating you up because you borrowed his club and didn't give it back. There was also precedent for governmental agencies (e.g. tax collectors) seizing property, for much the same reason.
Then, in the 1800's, the US got into "eminent domain." Basically, this means if the state doesn't agree with how you're using some land/property, they can seize it. But note, now for the first time it wasn't "theirs anyway," they're just flat out taking it.
...take a little step through seizing illegal drugs, etc...
and we wind up in the state we have nowadays, where college dorm rooms are routinely raided for computers. I mean, these are people in *college* for crying out loud! Can they really afford to replace their computers? If the FBI wants to take the warez ("illegal materials") or mp3's, shouldn't they just take the hard drives, give the seizee (I think I just invented a new word) a new equivalent capacity or value hard drive, and *oh* -- make sure to give them a copy of the OS too, since you wouldn't want them pirating Windows, which they will obviously do since you just gave them a new, blank hard drive [bsa.org], and that's how we count pirates! Oh, I forgot, it's the secret po^W^WFBI, and you're a Suspected Criminal, so that means all your base are belong to us! Welcome to the land of the free, biotch!
So obviously, IMO, having *anyone* seizing property because of an *alleged* violation of the DMCA is just way over the top.
---
Windows 2000/XP stable? safe? secure? 5 lines of simple C code say otherwise! [zappadoodle.com]
Re:So wait... (Score:5, Informative)
You're confusing eminent domain with civil forfeiture with evidence seizures.
Eminent domain - "We the state need to knock your house down to make a new road. You are entitled to compensation. We've decided that it's worth $100,000. If you don't like our assessment, there is a lengthy and difficult appeals process." (Not to be confused with the bullshit idea of "takings", where being prevented from raping the land is somehow supposed to be the same as having your deed revoked.)
Civil forfeiture - "We the state think your property has commited a crime. (Yes, not you, your property.) We're taking it. No trial. If you don't like it, you can try to sue us to get it back, and you can guess what the chances of success are." (Not to be confused with any sort of due process, justice, or civilized behavior.)
Evidence seizures - "We the state think you're doing something naughty with this stuff. We're taking it to investigate. Forget about getting it back in any reasonable period of time. If you don't like it...tough shit." (A necessary thing in theory, but highly abused in practice, especially with respect to computer-related crimes.)
This case - "We're not the government. We want your stuff or we'll sue and/or press charges, under a blatantly unconstitutional law we helped buy."
US Customs and how it most likely made it through (Score:4, Insightful)
usually when items liked this are shipped, they are marked in a way so that customs doesn't stop them. i have seen them shipped marked as "gift" with a value of "under $30 USD". coming from Hong Kong you can get an item in less than 10 business days in this manner.
it is a constant discussion around our office when someone's linker for their GBA arrives: how does US Customs know what is inside is not drugs, kiddie pr0n, etc?? we don't know. all we know is marking it in the above fashion seems to work.
no idea if the guy in this story got his sent marked as such, but i would bet he did.
nope (Score:2, Informative)
What a precedent... (Score:2, Insightful)
Re:What a precedent... (Score:2)
This is why guns are for sale. And lockpicks (though you need a locksmithy license in some places). And kitchen knives. All can be used for illegal activities, but none can be banned from the market because the illegality is not inherent in the device, but rather in the actions of the user.
If it can be demonstrated that the only (or overwhelmingly primary) reason for the existance of a product is to assist in illegal activities, then that product can be removed from the market. That is why black market sattelite decoders are not sold at the Mom & Pop Grocery Store (you have to go to the Mom & Pop Seedy Basement for these), even though a flimsy arguement could be made that you're selling, uh, really fancy paperweights.
To swing that back to drug paraphernalia, it was impossible to ban bongs and pipes from being sold because both could be used to inhale tobacco, and you run into an annoying slippery slope -- if you ban pipes, all those tweed-wearing english professors will be mad. If you don't ban pipes, you've basically ceded your ability to ban bongs, as functionally they are only a pipe with an additional filtration layer and necessarily different design principles.
So, if it is discovered that the device in question is being used almost entirely for illegal activities, or that it has no other reasonable purpose, it will be banned.
But this is a DMCA thing, which is related but not quite the same. Basically, if US Customs rules it to be a violation, then the violated party (Nintendo) are permitted to confiscate the violating material (Flash Linker) on the grounds that the only purpose of that material is to harm Nintendo. So, by virtue of the product being designed to harm Nintendo through permitting / encouraging copyright infringements, all instances of that product...oh, fuck it:
ALL YOUR LINK ARE BELONG TO NINTENDO.
IANAL
Description (Score:5, Informative)
Re:Description (Score:3, Interesting)
Re:Description (Score:4, Insightful)
And besides, how are EULAs for GBAs and GBA games valid anyway? On a computer program, you at least have to click a button that says "Agree". There is nothing I signed or agreed to when I bought and used my GBA or my games, so no contract should apply, just the standard copyright laws.
FYI: The whole letter.... (Score:3, Informative)
Nintendo of America Inc. (NOA) is providing this letter of notification pursuant to the Digital Millennium Copyright Act, USC 17 1201(b) (DMCA) and the US Customs ruling dated December 20, 2001, regarding the import, distribution and sale of the Flash Advance Linker. US Customs confirmed the Flash Advance Linker violates the DMCA and is subject to confiscation.
This notice is addressed to the agent designated by Zophar's Domain to receive notifications of claimed infringements, as reflected in the current records of the U.S. Copyright Office.
NOA has a good faith belief that the internet site found at www.zophar.net infringes Nintendo's intellectual property rights by distributing illegal imports of the Flash Advance Linker in violation of section 1201(b) of the DMCA and subject to seizure under 19 USC 1595a(c)(2)(c) by US Customs.
The e-commerce page offering the Flash Advance Linker for sale was found on your site at:
http://www.zophar.net/store/items.phtml?gba-
Nintendo demands that you immediately cease the importation, distribution and sale of the Flash Advance Linker and turn over your remaining stock to Nintendo.
The Flash Advance Linker appearing on Zophar.net has been identified by its title, description [and/or] depictions of associated artwork. Based on the information at its disposal on February 19, 2002, NOA believes that the statements in this notice are accurate and correctly describe the infringing nature and status of the infringing material.
Should you have any questions, please contact Nintendo of America Inc. at the following address, telephone and fax numbers, and/or e-mail address:
Nintendo of America Inc.
Attn: Anti-Piracy Group
4820 150th Ave. NE
Redmond, WA 98052
Telephone: 425-861-2187
Fax: 425-882-3585
E-mail: Noalegal@noa.nintendo.com
We look forward to working with you to immediately resolve this matter.
Sincerely,
NINTENDO OF AMERICA INC.
Re:FYI: The whole letter.... (Score:2, Interesting)
Where does the law allow Nintendo to make this demand? "...turn over your remaining stock to Nintendo."
Re:FYI: The whole letter.... (Score:2)
Essentially, they are saying he is in violation of the DMCA. If he stops selling, and gives them his stock, they wont prosecute him, or sue him for civil damages.
If he doesnt give it over (and he doesnt have to) then they will go by the book, and try to nail him for what they say is a violation of the DMCA
Re:And most likely his life will suck ... (Score:2)
These doodads are essentially memory cards, and on the right market places, memory is just a commodity.
If I'd gotten such a letter, I'd report NOA for attempted theft by trickery.
DMCA section 1201(b) (Score:4, Informative)
(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.
(IANAL) www.visoly.com markets the device as a means for independant game developers to produce their own cartridges. Unless you or someone you know is marketing it as a game copier, NOA would have to prove that independant game developers are a "limited commercially significant purpose", or that visoly is cooperating with someone who is marketing the device as a game copier.
Re:DMCA section 1201(b) (Score:4, Insightful)
> copyright owner under this title in a work or a portion thereof;
Mmm... if you circumvented it, how does it "effectively protect" anything?
Re:DMCA section 1201(b) (Score:3, Insightful)
That's impossible. "You're not allowed to make a game that runs on our hardware?" WTF? It's not THEIR hardware. When you buy it, it's YOUR hardware, and you can do whatever you damn well please with it. If you want to make a game, there's not a damn thing they can do about it.
Now, mass producing and selling your game in a store, there might be something there. Perhaps they have a copyright on the cartridge design, or something like that. But making your own game for your own use, I don't see how they can prevent you from doing that...
Re:FYI: The whole letter.... (Score:4, Interesting)
http://www.hrrc.org/html/DMCA-leg-hist.html
DMCA history website.
http://www.loc.gov/copyright/
US Copyright office.
http://www.loc.gov/copyright/legislation/dmca.p
DMCA summary & analysis
Section 1201 of the DMCA is basically the anticircumvention stuff. It makes a distinction between devices that allow illegal access to copyrighted material and devices that make illegal copies of copyrighted material. The legal question here is, is this doodad a circumvention device? Does it illegally circumvent some encryption of the ROM data on the GBA cart? If not then it's an issue of, is this a fair use case of copying?
Re:FYI: The whole letter - this bit confuses me (Score:4, Funny)
Nintendo demands that you ... turn over your remaining stock to Nintendo.
What? Has Nintendo suddenly become part of US customs?!
Re:FYI: The whole letter.... (Score:5, Funny)
How are you gentlemen?
Nintendo of America Inc. (NOA) is providing this letter of notification pursuant to the Digital Millennium Copyright Act, USC 17 1201(b) (for great justice take off every zig) and the US Customs ruling dated December 20, 2001, regarding the import, distribution and sale of the Flash Advance Linker. US Customs confirmed the Flash Advance Linker violates the DMCA and is subject to confiscation.
This notice is addressed to the agent designated by Zophar's Domain to receive notifications of claimed infringements, as reflected in the current records of the U.S. Copyright Office.
NOA has a good faith belief that someone set up us the bomb by distributing illegal imports of the Flash Advance Linker in violation of section 1201(b) of the DMCA and subject to seizure under 19 USC 1595a(c)(2)(c) by US Customs.
The e-commerce page offering the Flash Advance Linker for sale was found on your site at:
http://www.zophar.net/store/items.phtml?gba-
Nintendo demands that you immediately cease the importation, distribution and sale of the Flash Advance Linker and all your base are belong to us
The Flash Advance Linker appearing on Zophar.net has been identified by its title, description [and/or] depictions of associated artwork. Based on the information at its disposal on February 19, 2002, NOA believes that the statements in this notice are accurate and correctly describe the infringing nature and status of the infringing material.
Should you have any questions, please move zig, move zig move zig at the following address, telephone and fax numbers, and/or e-mail address:
Nintendo of America Inc.
Attn: We get signal. What?
4820 Main screen turn on!
Redmond, WA 98052
Telephone: 425-861-2187
Fax: 425-882-3585
E-mail: Noalegal@noa.nintendo.com
We look forward to working with you to immediately resolve this matter. You are on the way to destruction. You have no chance to survive, make your time.
Sincerely,
NINTENDO OF AMERICA INC.
Re:FYI: The whole letter.... (Score:3, Interesting)
IANAL, but this is obviously an illegal demand:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...
-- Fourth amemdment, US constitution
No person shall
-- Fifth amemdment, US constitution
quick lets jump on the dmca bandwagon (Score:3, Insightful)
Re:quick lets jump on the dmca bandwagon (Score:2, Insightful)
Probably not long, now that the bastards at Nintendo and Sega have the DMCA hammer. Before the DMCA, the NOA scumbags sued Galoob [harvard.edu] over the Game Genie and had their head handed to them in court. If the Game Genie were introduced today, Nintendo would invoke the DMCA's magical powers of purchased legislation and prevail.
Ban Blossom! (Score:2, Insightful)
Hell, I could beat up old people with VHS copies of TV's Blossom, but I would never advocate banning Blossom... well, I *would*, but for taste reasons more than anything. Damn that annoying Six!
Great example (Score:2)
Some questions (Score:3, Informative)
What part of the DMCA gives NOA the right to ask for the unsold stock?
Re:Some questions (Score:2, Informative)
Re:Some questions (Score:3, Informative)
search page [ustreas.gov] if you
search for Flash Advance Linker under the link to
rulings by their HQ) contains their own justification for getting involved, as well as their legal reasoning. The official rationale for having the authority to rule is as follows:
"In the instant case, the question before us deviates somewhat from the more traditional cases involving Customs copyright infringement enforcement in that the subject question involves application of certain provisions of the Digitial Millennium Copyright Act (17 U.S.C. 1201) (hereinafter DMCA). That is, Customs here is providing administrative enforcement not on the basis of whether one work is "substantially similar" to another, but rather, on those provisions of the Copyright Act of 1976 that address "circumvention" which the DMCA was promulgated to address. Regardless, the question presented is whether a particular device constitutes an infringement of law under Title 17, U.S. Code."
"The role of Customs in issuing substantive decisions of copyright infringement as to imported merchandise was addressed in The Miss America Organization v. Mattel, Inc., 945 F.2d 536 (2d Cir. 1991). Citing section 603 of the Copyright Act of 1976 (17 U.S.C. 603), the court recognized Customs authority to enforce the provisions of the law prohibiting importations of infringing goods. Id. at 538."
The four specific allegations Nintendo made against Flash Advance Linker were as follows:
"(1)the floppy disk which is provided as part of the "GB Flash Advance Linker" has no function other than to bypass the "Game Boy Advance" access restrictions, and therefore meets the statutory requirements of 17 U.S.C. 1201(b)(1)(A);"
"(2)the "GB Flash Advance Linker" illegally copies Nintendo's Game Boy Advance video game data from its cartridge format to a flash memory cartridge (Flash 64M RAM card, distributed with the "GB Flash Advance Linker" device, in contravention of 17 U.S.C. 1201(b)(1)(A));"
"(3)the "GB Flash Advance Linker" illegally copies Nintendo's "Game Boy Advance" video game data from its cartridge format directly to a PC hard drive, using the printer port connection of the "GB Flash Advance Linker", from whence it can be uploaded to the internet for unlimited copying, in contravention of 17 U.S.C. 1201(b)(1)(A); and"
"(4)the "GB Flash Advance Linker" is also primarily designed to circumvent technological protections, and has only the most limited commercially significant purpose other than to circumvent protections, in contravention of 17 U.S.C. 1201(b)(1)(B)."
Long story short: US Customs did their own
lab investigation of Flash Advance Linker, agreed that FAL could do what it's advertised as doing, and agreed with all of Nintendo's four points.
I hope this case (or something similar) goes to
court and results in DMCA being ruled unconstitutional. I can't actually disagree with the U.S. Custom folks' decision; it is an entirely rational application of the law as it stands. It's just that the law as it stands is insane.
Re:Some questions (Score:3, Insightful)
Customs officers have a shitty job. They are overworked, underpaid, and they know that any obvious contraband they do stop is only the tip of the iceberg. Luckily for them, they have the authority to cavity search Jesus Christ Himself if they feel like it, and the - de facto - power to seize anything they like and hold it to ransom. This seizure is extra-legal and extra-consitutional, but luckily they live in a gray zone outside of the normal bounds of time and space. Er, law, I mean. Specifically, the goods aren't in the country until they pass customs, so the our feeble human laws do not yet apply to them.
I dunno, how much of it (the DMCA) did they pay for?
Seriously, it's a good question. The DMCA bans import of contravening devices, but that's post facto now, and beyond the (spurious) jurisdiction of the demigods at customs. It also bans the sale or trafficking in the devices. But it doesn't provide a mechanism for seizing them. The current owner can keep them, and curiously enough, can even use them. He just can't give them to anyone else, nor tell anyone how to make one or where to get one. But that's for a court to decide now, not customs, and not Nintendo.
Sigh, time to dig out the addresses of my elected representatives again. Anyone else get the feeling that SSSCA was just a smokescreen to protect the DMCA? Like it turned the debate into "how much further should we go?" when it should be "have we gone too far already?".
/. more effective than DMCA? (Score:4, Funny)
Cheaper than going to his ISP and cutting him off there, and certainly cheaper than legal battles
And the DMCA apply's how? (Score:4, Insightful)
Re:And the DMCA apply's how? (Score:2, Insightful)
Re:And the DMCA apply's how? (Score:3, Interesting)
Just like the GameCube, there is no chip in a GameCube that prevents you from using burned discs, because nobody has the ability to read, or write those little DVDs. You can play Japanese Gamecube Games in US Gamecubes and vice versa, the same goes for all Gameboys. Australian Gameboys for some reason do not play foreign games.
There really is no copy protection, so I don't think the DMCA applies. However I DO think that another law concerning the fact that Nintendo has a patent/copyright on the GBA cartridge format might make another law applicable.
Re:And the DMCA apply's how? (Score:2)
Section 1201 (b) [cornell.edu], very summarised, says:
In other words, Nintendo are claiming that the fact that their games come on a cartridge is a technological measure that effectively makes it hard to make copies, and that the Flash Advance makes it easy to make copies, and therefore makes it easy to undermine the rights of the copyright holder.
If you believe that the cartridge form factor is a technological measure, and that copying does undermine the rights of the copyrightr holder, then, yeah, this part of the act does appear to apply. (IANAL, but I can read the text of the code just dandy.)
Gameboy Programming (Score:5, Insightful)
Re:Gameboy Programming (Score:3, Funny)
I believe this is what the copyright cartels want, yes.
Re:Gameboy Programming (Score:2, Interesting)
-rp
Re:Gameboy Programming (Score:3, Interesting)
How many DMCA articles have we seen here on slashdot... 50? (Search shows 30 since November.)
The bottom line seems to be: Yes, your soldering iron absolutely is in violation of the DMCA, ESPECIALLY if you use it anywhere near something that a corporation sold you or owns copyrights on.
In fact, I'll bet you that any corporate lawyer worth his salt could use the DMCA to make ANY product, service, or thought process illegal under the DMCA, if he worded it right.
Don't like it? Send money to the EFF. (eff.org)
That's what I did. Of course, I can't contribute anything next to giant corporate lobbying entities, but it's a start.
Substantial Non-Infringing Use (Score:2)
For all that is wrong with it, DMCA did not abandon or overturn this concept [lawtechjournal.com]. This item, like a VCR, obviously has significant utility that does not involve violation of copyright. Nintendo doesn't stand a chance.
I'll do it... (Score:3, Insightful)
Just bring up video editing stations. They're perfectly legal, right? What do they allow you to do? You can pull video off a tape, DAT or DVD, and put video onto a tape, DAT or DVD. You need to do this in order to do your job as a video content producer. You can't do your job without this equipment. If the government were to make it illegal, you'd be screwed. Since video editing equipment is still legal, thus the standard is set.
Back to the Flash thingy. GBA programmers cannot do their job without a device to put code onto the carts and get it back off them, nor can they sell their product without a means to get the programs to people.
All you have to do to win is argue that this standard has already been set in the courts with the video equipment, a precedent therefore exists, and to top it off a bunch of small businesses (which America is supposed to adore) would be obliterated without this equipment they need to perform their legitimate occupations. Seems pretty easy to me.
Call me if you want me to argue the case.
There's only one flaw... (Score:3, Insightful)
Re:There's only one flaw... (Score:3, Interesting)
How does the flash advance work? (Score:5, Insightful)
As to "pro bono" attorneys, why would you ever need to rely on that? You're just the buyer of a vendor's accused product. As the buyer of goods under the Uniform Commercial Code, you generally receive them subject to an implied warranty against infringement. Ordinarily, even if the warranty is expressly disclaimed, purchase orders still provide for indemnification of IP claims. Why not call the vendor and ask them why their "for a buck" lawyer isn't protecting you for free? You might also ask your insurance company if you have any coverage under you general umbrella, either for advertising injury or otherwise.
Of course, this isn't legal advise one way or the other. There aren't sufficient facts presented to indicate whether or not you would be liable, not liable for the demand or have, not have a claim for contribution from your vendors or distributors. It would make sense, and you really, really have to do this now, to have a lawyer at least look at the coverage questions.
Re:How does the flash advance work? (Score:3, Insightful)
I'm sure glad there are more than ten pins, or else we'd all have to get our fingers chopped off as anticircumvention devices.
It'd be nice to see this one go to trial. (Score:4, Interesting)
1) It CAN be used to copy games illegally. I don't think anyone will disagree.
2) It CAN be used to _legally_ copy games, or save data. Nintendo might try to disagree with this being legal, but I don't think they can convince anyone of that in a courtroom.
So, it has both uses that are legal, and those that infringe on copyright.
It's been awhile since I read the DMCA, so I'm not sure which particular provision selling this device is supposed to be violating. I'm guessing it's the sale/distribution of a copy-protection-circumvention device.
The hardware angle would be silly, so it must be that they claim copying their ROMs is the violation. Are GBA ROMs encrypted, or otherwise proof from copying beyond their storage on a chip in a funky plastic case?
Bottom line, I think these people could mount a fairly strong challenge to at least the lawsuit, and possibly take the route of the DMCA being unconstitutional: It's being used to make a _fair use_ under copyright -- space/time shifting of user data -- illegal.
Xentax
Just like DeCSS? (Score:3, Informative)
Nintendo will claim the DeCSS case as a precedent, saying it allows people to pirate their games. The users will claim it's fair use. Who's going to win?
Nintendo.
Oh yeah... (Score:2)
All kidding aside, I used to like the big N a lot back in the day, but how can this break the DMCA? Is the fact that there are not readily available cart readers mean that it's a "circumvention device?" It doesn't appear to decrypt anything or break any kind of circ. device, looks like it just copies bits off the cart.
So someone more knowledgable want to explain how this falls under the DMCA?
Why Nintendo went after them (READ) (Score:5, Informative)
Subj: Sales of illegal copier units
Date: 2/12/02 6:58:47 PM Pacific Standard Time
From: cultchyldren@aol.com
To: piracyscene@noa.nintendo.com
Dear NOA Legal:
During my searches to find LEGAL NOA distributers and local stores, I stumbled onto a very disturbing piracy site. It can be found at: http://www.zophar.net/. It is a site that has illegal emulators on it, but the most disturbing part is that they use the illegal emulators to draw in people to buy illegal copier units for the Gameboy Advance system.
I thought that I should inform you that people were making dishonest money from your products, and should be looked into quickly. These people should be shown that stealing is wrong. If you need a direct url to the problem, it can be found at: http://www.zophar.net/store/items.phtml?gba-acc
The guys from the site have a grudge against zophar.net that goes back years, not getting into it.
But I just wanted to clear up that this isn't just NOA laying down the law for no reason. This is just a form letter, a response to the e-mail that was sent to them above.
"Any pro bono lawyers out there?" (Score:3, Insightful)
Even if the EFF or another advocacy group is in a position to swoop down from the sky and help take your case, this is a major international corporation you're dealing with, and a broadly written law (the DMCA) that has many constitutional questions surrounding it. You will likely need to spend the money on a good attorney to represent you if you intend to fight this.
It's official. NOS is not expandable (Score:2)
Exactly how does this violate DMCA (Score:4, Insightful)
By this standard... (Score:2)
pencil/pen and paper
typewriter
word processors
floppy disks
hard disks
any network which links 2 or more computers
serial, parallel, network, USB and firewire cables
modems
VCRs and PVRs
I'm sure I've missed some obvious ones.
-jeff
Can customs make that judgement? (Score:3, Interesting)
I didn't know that US Customs was a body capable of ruling on whether a product violates the DMCA. Once something is determined to violate the DMCA, it would make sense that they could confiscate it but they are an enforcement organization.
From all descriptions I've read (not that many) the primary purpose of this device is to copy GBA roms to catridges that can be played on the GBA. All marketing I can find markets it as a development tool. I don't see how it meets the ``primarily designed for...'' requirements.
Then again, IANAL
I can tell you why NOA cares about this (Score:5, Insightful)
Emulators are not too much of a threat to a console. The games simply suck badly when played on a Keyboard, and PC controllers just dont feel right. But this allows you to play these games on a GBA. This is a direct threat to what is currently Nintendo's most consistent source of income. So of course they will go after it and try to kill it.
END COMMUNICATION
Re:I can tell you why NOA cares about this (Score:5, Informative)
Did they tell you this personally, or are you just pulling it out of thin air? Because they must have fucked up their marketing message with me. I've been using it to dev on for several months now, and I have never once put a commercial ROM on it. Where did I find out about it? From a promotion on a GBA development site, where they give a commission to the guy running the site if you buy one.
So how is GBA development not the intended market for the product, given the fact that they advertise heavily on all of the GBA amateur dev sites I visit?
You have no idea (Score:5, Insightful)
Re: Illegal use of NOA property (Score:3, Funny)
Nintendo of America Inc. (NOA) is providing this letter of notification pursuant to the Digital Millennium Copyright Act, USC 17 1201(b) (DMCA) and the US Customs ruling dated December 20, 2001, regarding the import, distribution and sale of the Flash Advance Linker. US Customs confirmed the Flash Advance Linker violates the DMCA and is subject to confiscation.
This notice is addressed to the agent designated by Win-Developer to receive notifications of claimed infringements, as reflected in the current records of the U.S. Copyright Office.
NOA has a good faith belief that your GBA rom collection and flash linker infringes Nintendo's intellectual property rights in violation of section 1201(b) of the DMCA and subject to seizure under 19 USC 1595a(c)(2)(c) by US Customs.
The post describing your Flash Advance Linker was found at: http://slashdot.org/comments.pl?sid=28286&thresho
Nintendo demands that you immediately cease the use of the Flash Advance Linker and turn it over to Nintendo.
The Flash Advance Linker appearing in your post has been identified by its title, description [and/or] depictions of associated artwork. Based on the information at its disposal on February 20, 2002, NOA believes that the statements in this notice are accurate and correctly describe the infringing nature and status of the infringing material.
Should you have any questions, please contact Nintendo of America Inc.
you guys are forgetting the point fo the DMCA (Score:3, Interesting)
Granted, I don't agree with the DMCA, but this device is *very clearly* a violation of it. It's not that it's *used* to make copies of protected material, but that it's *designed* to make copies of protected materials.
Re:you guys are forgetting the point fo the DMCA (Score:3, Informative)
Hey you law-types: Staple Article of Commerce? (Score:2, Informative)
That being said, it looks like its yet another example of the ol' "substantial non-infringing use" argument. This is the same logic that Sony floated to get the VCR past Hollywood's objections back in the day. For anyone interested in poking around on FindLaw.com, that's Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984). See also Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988).
The basic idea is that the VCR was a 'staple article of commerce' - it was widely used for legitimate, unobjectionable purposes, such that this value outweighed any infringing conduct that it might facilitate. I'd like to hear what any other law-oriented folks out there think.
Can the Flash Advance Linker be construed as a staple article of commerce? Isn't this the same argument that Diamond made to avoid an injunction on the Rio?
On the one hand, the back-up capacity of a product always lends creedence to the substantial non-infringing use argument. And suppressing the device to prevent public-domain games from entering the market might even be construed as misuse of copyright (reference Napster's counterattack on A&M... but I digress...)
On the other hand, notice of alleged infringement goed toward undermining the 'staple article of commerce' argument. The Ninth Circuit's Napster opinion suggested that the 'staple article of commerce' argument only went toward the knowledge element of contributory infringement, and thus didn't matter, because the evidence demonstrated that Napster clearly had knowledge of the infringing conduct.
Come to think of it, I don't know of any distributors ever making this argument. Particularly when no one has raised any arguments about contributory infringment.
So what do all you IP types out there think?
Going after the little guy. (Score:3, Insightful)
Here is the DNS for the manufacturers web site
Visoly
Henry Lo
Shop 64, G/F, 148 - 152 Fuk Wah Street, Shum Shui Po
Hong Kong, Kowloon -
HK
Phone: +852 23785236
Fax..: +852 23785237
Email: webmaster@visoly.com
I presume its harder to go after the HK connection, so shut down any US marketing and distribution for the product first. A cheap form lawyers letter might get you some results
I would suggest the recipient gets some quick PROPER legal advice first - THEN decides on his response
DMCA (Score:2, Informative)
They say it is illegal according to section 1201(b), but they don't get too specific.
By their own argument you can say that section 1201 (b) section 2) paragraphs (A) and (B) protect YOU because
``(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
``(B) has only limited commercially significant purpose oruse other than to circumvent atechnological measure that effectively controls access to a work protected under this title
Furthermore, section 3) paragraph (A) States,
``(A) to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a tech-
nological measure, without the authority of the copyright owner;
Does this device actually descramble or decrypt anything? Dont they put copy protection on their roms?
By using those two statements in section 2, they are implying the only commercial use of this device is to copy ROMs. The defense is that the device is intended to allow a would-be game programmer to program a flash device and develop his/her own games for the GBA. I believe in the USA you are guilty until proven innocent. This means the burden of proof that this device has no other commercial use is upon NOA. Either they prove it or they shut the fsck up.
On the other hand, money buys politicians. Good Luck, you'll need it against them arseholes!
Errors (Score:3, Interesting)
Their letter doesn't explain what "technological measure" your product circumvents. After reading a description of the product, I am sceptical that there is any technological measure at all, so this doesn't look like a violation of 1201(b). At the end of the letter, they ask you to contact them if you have questions. It might be useful to get their clarification on what "technological measure" has been circumvented.
They also use the word "infringe" which implies that in addition to a DMCA violation, there is also a copyright infringement. But the letter doesn't explain. It sounds like Nintendo lawyers are making things up as they go along.
This isn't US Customs' job. If US Customs is spending my tax money hiring lawyers to research things on behalf of private corporations such as Nintendo, then I want my tax money back.
Nintendio has a good case. (Score:3, Insightful)
http://www.visoly.com/
This is the developer's site of the product in question, and right on the same page it links to a page on various Nintendo Emulators. Anything that could have implied "developer's tool" flew out the window just by having that link there. It'll be really tough for them to prove it's not a device intended for piracy.
There *is* a legal product out there for uninitiated developers out there. Check out this page:
http://www.mp3games.net/demo.htm
Basically, this is a product you can buy at Software Etc that allows you to write programs for the GBA and download them into a little cartridge. This device claims it won't play 'copyrighted games'. Once you write apps for the GBA, you can trade them on the net etc. To the best of my knowledge, it's still for sale. I don't think Nintendo is fighting this one because it's clearly a developer's device.
I'm against the DMCA, I think it's poorly executed. I've been very vocal about that here. But this is a case where I think Nintendo is in the right. If this product did have legit uses, it was VERY BONEHEADED to link to an emulator's site on the product page. I'm with Nintendo on this one.
Emulators and development. (Score:3, Informative)
That being said, the people selling this thing are probably still screwed, since it's likely Nintendo can claim that somewhere in their product is some obfuscation (like an undocumented pinout on the cartridges) that qualifies as a copy protection method that this unit circumvents. As you say, the law sucks, but it's still a law until struck down or repealed.
"Any pro bono lawyers out there?" (Score:5, Informative)
of course the first place to start is the eff. If nothing else, they might be able to point you in the right direction.
The future of free culture is at stake. (Score:3, Insightful)
And, in fact, that is indeed invariably their primary use. Artists/writers/programmers are always going to be a minority.
These things are increasingly being legislated and prosecuted accordingly. Independent content/media/software creators are going to get very screwed, and our cultural development will be ceded entirely to corporations.
While this might not be the primary intended effect, I'm sure the aforementioned conglomerates don't really mind it as a side-effect.
The only defense I can see is to create a body of "libre" independent content that most people will actually care about, so there would be some outcry when it was threatened. "mainline" indy media is unfortunately too esoteric most of the time.
That would, however, most likely require a source of patronage outside the media conglomerates. I don't see e.g. an animated feature being assembled in the same way as the Linux kernel.
I have a Game Boy Advance flash linker here... (Score:5, Informative)
While the flash linker can be used for piracy, this case is exactly the same as the one reported here earlier about the Dreamcast-PC serial cable. Just because it could be used for piracy doesn't mean it is.
Having said all that, I can see why Nintendo are going after this kit - GBA roms are easy to find on the net and are small enough that even the slowest modem connection can download them.
Nintendo are very different from companies like Sony and Microsoft in that they keep tight control of the content of any software developed for their hardware through draconian licences. They see their consoles as being aimed primarily at younger children and try to discourage development of 'adult' titles. Sites like http://foon.pocketheaven.com/ that carry unlicenced software weaken their position so, while being legal, their position is precarious. As a flash linker is required to get the software from unlicenced developers onto the GBA, it's no surprise that this is where Nintendo's attack lawyers would concentrate their efforts. The DMCA just makes them an even more tempting target.
--
Input error. Replace user and press any key to continue.
What am I missing? It's for PDAs, right? (Score:2)
1. Game ROMs for every Nintendo game under the sun are already on the net for download. Anyone who just wants the ROM for a game doesn't need this device.
2. Therefore anyone who would want one of these likely buys (i.e. owns) the cartridges themselves and is trying to "do the right thing" by Nintendo.
3. The game console is usually a loss-leader to sell the games.
So it seems to me that Nintendo's financial situation is actually improved by this device, since console (sold at a loss) sales can be cut back while game sales continue unabated, played on PDAs and PCs?
Where's the harm? It seems like Nintendo should continue to go after all of the ROM pirates already out there, but encourage sale of this device, since it requires that the user buy the cartridges in order to be useful. Am I missing something really obvious, or is this just a company shooting themselves in the foot because they're so orgasmic about intellectual property rights?
We need a legal opinion here.... (Score:3, Informative)
Okay--we need to hear from /. readers who actually ARE lawyers. In particular, we need to hear from geek lawyers who are familiar with federal regulations, how they are formulated, and what is the precise legal meaning of "ruling."
This letter from Nintendo is a threat. Find a small business, threaten them with the wrath of God, watch them roll over. But--the threat has to be credible. The premise of the threat from Nintendo is contained in the second paragraph of the letter:
The key question here is, what ruling was made by the U.S. Customs Service on December 20, 2001? Was this a ruling in a judicial proceeding? If so, does the U.S. Customs Service have the ability to conduct judicial proceedings that are binding on other jurisdictions? (I seem to recall that Admiralty courts in the U.S. are conducted by the U.S. Customs Service. But the DMCA and its application to a game cartridge emulator would seem to be outside the purview of an Admiralty court.)
Or was the "ruling" akin to the "private letter rulings" issued by the Internal Revenue Service, which are used to advise tax professionals of the IRS's view of the legality of a given strategy or vehicle. In other words, did Nintendo of America go to a U.S. Customs Service office, present some documentation asserting that the Flash Advance Linker could be used to illegally copy Gameboy cartridges, and thus (they argued) it violates the DMCA. If it is the latter, I would think the threat from Nintendo carries a lot less force--they got somebody to agree with their view of the situation. That's not the same thing as having as precendent a settled issue of law. (For contrast: if you get a letter from the local Temperance Union insisting that you cease and desist from the manufacture, transportation, distribution, and/or sale of beer--because you're in a "dry" county--you're in a different fight. Temperance rules may seem silly, but they're a settled legal issue.)
If the DMCA is to be challenged, these guys need help
A common legal tactic is to establish a court precendent someplace, and then extend that precendent across the country. I learned this the hard way, early in my career, when the Internal Revenue Service decided to make an example of my employer at the time [prpbooks.com] (Presbyterian and Reformed Publishing Co. v. Commissioner of Internal Revenue, 743 F.2d 148 (3rd Cir. 1984).). We won--but only because of substantial financial and legal support from other (larger) publishing houses that stood to be hurt down the road. Almost twenty years ago I was hustling contributions to a legal defense fund of more than $50K--today it would require much, much more than that.
There is an alternative...
You generally cannot intervene in a private lawsuit. And Nintendo is almost certainly assuming that this store isn't going to go all the way to court over this. But you can ask your Congressman to "look into this" and report back to you on the merit of foreign software corporations using the DMCA to prevent U.S. software developers from writing software for a popular computing platform. With enough publicity, and enough questions from Congress, Nintendo might be persuaded to back off.
This is not a patent issue. (Score:3, Funny)
The picture would be a copy of the Constitution with a pile of shit on top of it, just below someone wiping his ass with hundred dollar bills.
Remember, it's just a letter... (Score:5, Informative)
Dear Mr Michaels,
Get a grip. This is just a letter. Letters cost about a dollar to reproduce and send. They are typically used as intimidation techniques by lawyers when they know they don't have a legal leg to stand on.
If they file, then it means they're a bit more serious, but not much. Again, these filing is cheap, and often gets people to do what lawyers want even though they really don't have the legal right to demand it.
This is what you should do. Send them back a nice letter stating that the DCMA doesn't apply because these devices are not being used "solely for copyright circumvention" - they are being used for hobby gaming. This does two things. First, it states your legal position; they cannot claim you ignored the letter. Second, and more importantly, you are signal your willingness to actually fight this bullshit.
Believe me when I say that Corporate lawyers strongly recommend against suing a "little guy" on anything but a clear-cut case. Even if they win, it can do havok with their P.R., and it will cost them way way more money to pursue than they ever could recover.
Remember, because this isn't a contractual issue so there is no "looser pays in a legal dispute" clause to deal with. If they actually seriously pursue litigation, they're on the hook for their own legal fees, which makes it not worth it even if they do win.
Disclaimer - I am Not a Lawyer; however, I have used their services from time to time.
Counter to Intent of Copyright Law (Score:3, Insightful)
"rude"? (Score:2)
- A.P.
Re:DMCA or not (Score:2)
Granted I know there are a lot of people out there that are not quite so honest when it comes to emulation, basically the same people that distribute 0-day movies and playstation ISO's.
Re:DMCA or not (Score:2, Insightful)
Re:DMCA or not (Score:2)
From the documentation, the device also aids in the creation of new software. Many software tools fall into the category of being able to be abused for illegal purposes, much as a screwdriver or pliers can be construed to be burglary tools under the right circumstances.
However, since they have legitimate primary purposes, you can't run into Sears and confiscate their stock on the grounds someone might abuse the tools.
proof of legitimate use (Score:3, Interesting)
Re:why is the DMCA still around (Score:2, Interesting)
Of course, the industry is well aware of the weaknesses of the DMCA and will try hard to avboid a weak case going to court. That's why they dropped their beef with Felten/Princeton over digital audio watermarking, for example. Whenever they encounter credible resistance they will back off. Eventually it's going to have to go to court, though.
Re:you know... (Score:3, Interesting)
Re:you know... (Score:3, Interesting)
Ok, so what 'protective device' is there on a gameboy that is supposedly being circumvented?
Re:Well what did you expect? (Score:5, Insightful)
Re:Well what did you expect? (Score:2)
Yes. But they are constitutionally protected.
Re:Well what did you expect? (Score:5, Insightful)
Free software (Score:3, Interesting)
Distributing copies of the game is clearly copyright infringement.
Not if the game has been released as free software (or even free as in beer). Nintendo's titles aren't free, but mine are [pineight.com]. I put my proofs of concept and short utilities under the Expat license [jclark.com] and my full games under the GNU GPL [gnu.org]. It's only copyright infringement to redistribute binaries of GPL'd software if you neglect make an offer to distribute machine-readable source code at cost.
Developing and using free software constitutes a substantial non-infringing use of the Visoly [visoly.com] Flash Advance Pro cartridges.
Re:Well what did you expect? (Score:3, Insightful)
NO, it wouldn't be! The grinder would be SEIZED from the felon for using it illegally, but the grinder itself would NOT be illegal! In other words, we would not say, "You're using it for an illegal purpose. All grinders are now illegal. Round up any merchants selling grinders, seize their property and throw them in jail."
That's effectively what's happening here...
Re:Well what did you expect? (Score:2)
Comment removed (Score:5, Insightful)
Re:Well what did you expect? (Score:3, Interesting)
There's a specific exemption in the DMCA for transient memory copies necessary to produce functionality. It's not pertinent to the case in hand, I just thought I'd mention it.
Unfortunately, in this case Nintendo are just following the law as written (apart from trying to sieze the goods). They actually have a duty to their shareholders to do this. The problem is with the dumb law and the corrupt politicians that passed it, not the predatory people using it to their advantage, or the businesses who bought those politicians.
Let's stay focussed on the issue, which is to tell (not ask, tell) our elected representatives to repeal the law. The courts are a gamble, the predactory companies are a certainty. Fix the cause, not the symptoms.
Re:Well what did you expect? (Score:3, Funny)
This is, of course, completely off-topic and therefore likely to be modded down, but I had a roommate once who watched the Israeli-Palestinian conflict on the news for years before issuing this classic boner:
"Damn, the Israelis would have a lot less trouble with the Palestinians if they would just clean up all the loose rocks lying around town."
Re:Well what did you expect? (Score:2)
In the same way that a VCR makes duplicates of TV hows? Or a CD writer makes duplicates of CDs? The fact that a tool can be used for something illegal does not make it bad and wrong. Just because something can be used for illegal uses doesn't immediately mean it will be. These linkers have a legal and valid purpose, backing up your games. What if I use it for that purpose? Whatever happened to being innocent until proven guilty?
Re:SamMicheals, what will you do? (Score:5, Insightful)
he's just going to ignore them for now.
He should not do this, this will only make the courts mad, because he is spitting in the face of the law. Instead, he should get a Lawyer to write a nice polite letter stating first, Nintendo has no right to demand nor confiscate the devices, only the Federal government can do so with the proper court order. Second, the devices are legal because they have at least one legal use, ie making legal backup copies of games, which is allowed under "Fair Use". The DMCA does not specificaly eliminate "Fair Use" (I could be wrong, maybe, it does specificaly eliminate "Fair Use"). This also provides Researchers a method of discovering new uses for the product, because new uses may have a greater benifit. Because this has not happened yet does not mean it is not possible, attempting to enforce the DMCA in this manner stifles creativity and inovation. Recently the RIAA has backed down from a similar case stating it was not the intent of the RIAA nor the DMCA to suppress research nor stifle inovation. The Research part of this maybe a stretch, but a good Lawyer could make it work.