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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?"
Before stirring up the big crock of readers, you might first explain what the hell a flash advance linker is, and why we should give a damn.
Is it just me or does it seem like every company is suddenly pretending they are bearing the cross of piracy.. How long before you have to buy gamesharks on the black market?? Before your aftermarket controller for your ps2 is infringing on sony's right to sell you their controller.
Fire in the hands of the village idiot is no tool, but a weapon of mass destruction
Ok, I cannot figure out how the hell the DMCA would apply here. It appears to me that the product allows the download of the data off of the cartridges and onto the computer, as well as the upload of data from the computer to the GBA. It would seem to me that if that were illegal computer CD players and CDRW burners would be illegal as well as they allow COPYRIGHTED data to be transfered to a computer, and then through use of a burner transfered from the computer onto the media. Somebody should hand the NintenDUH people a cluestick.
IANAL, but it seems like the arguement is pretty simple to me. This device lets you pull games off of carts and put games onto carts, right? This case should be pretty easy.
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.
This tagline is umop apisdn.
If it is merely a flash memory, how, exactly is it circumventing an encryption scheme? Obviously something is going on there, else we would be unlikely to see the Verisign logo so prominently displayed at the web site. If anybody knows what is going on there, I'd be most interested.
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.
VHS, DVD, and the like are standards. Nintendo cartridges are not. The content of VHS tapes is protected, but not the actual device. In the case of the Nintendo cartridge, the entire thing is protected by copyright. This means that the precedent does not apply.
~ now you know
Why am I suddenly reminded of Homer Simpson looking skyward and saying, "I'm not usually a praying man, but if you can hear me, save me, Superman!"
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.
And did these units come through customs in the first place? If so, why weren't they held up then????
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.
/* Half alive and half dead too, work is for suckers and the sucker is you. - "Half-life" by Local H*/
There is no reverse engineering going on here. Everything regarding the technical know how to do this is available from Nintendo themselves. SamMichaels is it? Tell Nintendo to take the DMCA and shove it up their ass. While you're at it send them a flash linker and tell them to make you a deal you can't refuse. Otherwise; tough shit for them. All of this could of been avoided with a simple, we'll buy all the flash linkers you have and pay you not to make any for the next 5 yrs. Maybe they could of thought of something like this first, but when you are late to the market don't pull this DMCA shit outta your ass Nintendo. We know what it is, we don't like it and we don't like big companies thinking they can do whatever they want flashing the DMCA in everyones face when it doesn't apply; especially when it's something you should of thought of yourself and now wanna knock the small guy down so you can then make money off his idea. Fuck you; I feel like returning my Gamecube and denouncing up down up down left right left right a b start.
You, and the DMCA, are confounding the concepts of a crime and a tool that may be used to commit a crime. Tools should not, and generally are not, outlawed simply because they could be used to commit crimes. I could use a gun to rob a bank -- should guns be outlawed? I could use a crowbar to rob a house -- should crowbars be outlawed? I could use a pillow to smother a grandmother -- should pillows be outlawed?
While it is possible to use such devices to develop games, that is not the intended market for this product. This product is probably used to copy commercial games onto secondary media. In and of its self, Nintendo would not care too much. However, because anyone can buy it online, it makes casual piracy too easy. People can use this tool to buy a game, burn it, and return it. Or they can simply find the ROM online, and not even purchase it.
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
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
Look on the lower left of this site:
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.
"Derp de derp."
Um, so CD burners should be illegal because they can make exact duplicates of the original? How about CD copying software? How about blank CD's? For fsck's sake, man, how about computers in general? Heck, every time I boot, I'm reading copyrighted Microsoft (sorry, but it's true) material into my system's memory, goddamit!
Do you really believe the Sony/Nintendo/RIAA theory that anything that could possibly be used in an illegal manner should itself be illegal? I'm really curious. From Pentium processers to bleach, I'll bet I can find an illegal use for just about anything. Under this line of reasoning, rocks would be illegal because you could bang someone over the head with them. And don't try to claim "that's different", unless you're willing to argue that copyright violation is so much worse than murder that it merits much more legislative and judicial intervention in peoples' daily lives.
Bottom line: we're dangerously close to living in a system where intellectual property laws and cases operate on a presumption of guilt. That's just messed up.
Cheers
-b
If I wanted a sig I would have filled in that stupid box.
It seems to me that this is an instance of a more general problem -- all software and equipment which end-users can use to create/distribute their own media (music/video/games/whatever) can also be used to create/distribute unauthorized copies of "mainstream" media.
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.
DNA just wants to be free...
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?".
If you were blocking sigs, you wouldn't have to read this.
That presumes that copying the game is always illegal. If I buy any material protected by copywrite, it is perfectly legal for me to make as many copies as I wish for my own personal use. That applies to books, films, or whatever. I can make backup copies, copies to use in different locations, even copies to line my parrots cage if I wish. The backers of the DCMA want to take that legal right away. They were not able to do so directly, so they went after the tools.
> (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;
Mmm... if you circumvented it, how does it "effectively protect" anything?
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.
"Our products just aren't engineered for security,"
-Brian Valentine,VP in charge of MS Windows Development
I dunno, I could be talking out my ass here, but doesn't Nintendo require a royalty for every game anyone makes?
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...
-Ryan, with the unoriginal sig
If the grinder was being used to make illegal keys then owning it would also be illegal.
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...
-Ryan, with the unoriginal sig
what the intended market for any product is. I can buy a gun quite easily and shoot anyone I please. I could buy a car and run over your dog. I might like it, and a lot of people might want to do it. That doesn't mean that is the 'intended market'. I am so sick of you control freaks telling everyone what they can and cannot do simply because there is the opportunity to do wrong. Shame on you.
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.
With the DMCA and the extra-long copyright terms, you can guarantee that no surviving copies of a work will exist when the copyright term runs out. You can pretty much guarantee that you'll make your money on your work and that your work will never enter the public domain. Which is a good thing, if you're a big corporation, because that means that the public will no longer be able to get some pesky public domain work for their entertainment, even if they wanted to.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?