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NOA to Sue for Flash Advance Linkers
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?"
Since the shopping site is low on details, here's TechTV's 7-paragraph description of the product.
Dear Sam Michaels:
a cc
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.
help fill in hidden movie endings @ End of the Credits
Since when did US Customs become an authority on copyright law? Yes, they have a responsibility to prevent the import of items which violate the DMCA, but it's on a case by case basis and always subject to appeal.
What part of the DMCA gives NOA the right to ask for the unsold stock?
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E_NOSIG
http://www.visoly.com/fa_linker.php
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.
This was nothing more then a form letter from NOA legal, for this reason. Some guy at www.cultchydren.com e-mailed NOA with the following(a cut and paste from their site, I don't want to give them any traffic)
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.
(b) ADDITIONAL VIOLATIONS- (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
(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.
Most law firms do handls a certian amount of pro-bono per year. You might have to call them your self and ask.
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 Kruger Dunning explains most post on
...and I use it legitimately. There's a GNU GBA C compiler and tools available and it's fun to develop simple games for it. Of course I can't sell anything I produce, but the amateur GBA developer scene is very active and I can't see how it harms Nintendo in any way. Quite the opposite in fact; I wouldn't have bought a GBA if I couldn't program it. Checkout http://www.gbadev.org for more about the GBA amateur developer scene.
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.
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Input error. Replace user and press any key to continue.
Input error. Replace user and press any key to continue.
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."
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
The case against DeCSS succeeded because MPAA convinced the judge that the possibility of piracy and the potential loss of revenue was more important than the rights of the small community who wanted to use the software legally. Is this any different?
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.
-- If god wanted me to have a sig, he'd have given me a sense of humor.
Linking to an emulator site in and of itself isn't grounds for considering this thing to be a piracy device. You could point to other emulators used in the development of software for handhelds for an example. The POSE emulator, which emulates the Palm platform, was actually embraced by Palm and promoted as a way to easily develop software for the platform without having to go through the trouble of downloading to a deveice. Considering, from a description of this device, that it takes several minutes to download a ROM to the Gameboy, it seems logical that a developer would want ot use the quick turnaround of using an emulator instead. I expect that Nintendo's (and whoever else makes games for the platform) engineers use emulators extensively while developing new products.
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.
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 (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.
The term you are groping for is "Substancial non-infringing uses"
CD burners, floppy drives, VCRs cassette tapes, photo copiers, etc. have substancial non-infringing uses. Nintendo will argue that this product does not.
Si vis pacem, para bellum
The only thing more annoying than a Libertarian is an (un|mis)informed Libertarian
Copyrights cannot be lost by not defending them, only trademarks.
"Prefiero morir de pie que vivir siempre arrodillado!"
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.
How is the GBA cartridge protected? Is it the fact that it is stored on a non-standard media type? I'm not sure that qualifies as protected. Protected is what happens as a result of heavy encryption and password protection and hardware security checkpoints (like bad block addressing in PS games, laserlok, etc...). Go to megagames.com to find out about "protected". This is just a backup tool for legitamately purchased software. Our rights are "protected".
"While it is possible to use such devices to develop games, that is not the intended market for this product."
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?
The problem here is that regardless of whether there are or are not subtantial non-infringing uses is immaterial unless you've got the budget and cajones to fight it out in court. If they take down their site then they protect themselves legally. If they don't then Nintendo can go right ahead and sue them, come what may.
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?
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