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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?"
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.
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
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.
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.
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
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.