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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?"
You've got some stock that I assume you legally obtained and post-facto, they want to have the stock turned over to THEM? Shouldn't it be given to customs at least?
And did these units come through customs in the first place? If so, why weren't they held up then????
The Blaster Master Fighting for Truth, Justice, and Evil Pie since 1979
... First, they're not cheap. The drive sells for between $122 and $144. The cartridges are around $100 dollars each, but one 64Mbit Flash cartridge comes with the Flash Linker. Second, the Flash Advance Linker allows you to make legal, although dubiously legal, backup copies of GBA games, so if you buy one, you're slipping into that gray area of copyright protection. Buy at your own risk. ...
Well, there were two gameboy advance competitions. One was on www.gbadev.org - go take a look.Obviously quite a few people are using these for purposes other than pirating.
"Never, never suspect the dreams within the dreams of dreaming children." ~The Amazon Quartet
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.
It Is the Nature of Information to Transgress Artificial Boundaries
Where does the law allow Nintendo to make this demand? "...turn over your remaining stock to Nintendo."
Defecation occurs.
The DMCA refers to the breaking of encryption, I don't believe it has any revelance on a device that helps you copy non encrypted data?
As far as I can tell, this is a good candidate for an interesting trial:
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
You shouldn't verb words.
Not really, cf isn't nearly fast enough.
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...
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
Mainly, that it *takes away* the previously established right to make a single copy for backup purposes. It clearly states that circumventing copy protection is grounds to be in violation of the DMCA. And don't blather on about constitutionality... the right to make a single backup for archive purposes is only spelled out in the 1971 Copyright Act.
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.
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.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Incorrect, DMCA refers to circumventing a protective device
Ok, so what 'protective device' is there on a gameboy that is supposedly being circumvented?
-- Give me ambiguity or give me something else!
The only copy protection that a GBA has is it's proprietary cartridge format. There really isn't any copy protection besides the fact that the only device available on the market that works with these cartridges is a GBA, until now.
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.
The GeekNights podcast is going strong. Listen!
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?
It Is the Nature of Information to Transgress Artificial Boundaries
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.
If you were blocking sigs, you wouldn't have to read this.
*bzzzt* copyright doesn't protect the design of the cartridge, only the content. The claim, I suppose, will be that the form factor of the cartridge is sufficent "access control" under the DMCA, but whether or not it's a "standard" has no bearing whatsoever.
...when you combine this with the description of Visoly's other Flash Advance products. It sure sounds from the visoly site's description of those products that they are marketing them for copying first, and developing second. The first paragraph of the Flash Advance description states: "Once you have sent games, demos or programs to it's memory using the Flash Advance Linker, it can simply be plugged into the Gameboy Advance and it will act like an original game -- there is 100% not any difference!" Not until the fourth paragraph do they chime in with: "The Flash Advance 64M is furthermore the perfect choice for any professional Gameboy Advance developers or even home developers" I know this doesn't invalidate the legitimate uses of the Linker, but it can't help their cause to have language in their other products' descriptions that seems to advocate piracy using the Linker.
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...
Nintendo demands that you immediately ... turn over your remaining stock to Nintendo.
... be deprived of life, liberty, or property, without due process of law ...
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
The only thing necessary for the triumph of evil is for good men to do nothing. - Edmund Burke
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. I put my proofs of concept and short utilities under the Expat license and my full games under the GNU GPL. 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 Flash Advance Pro cartridges.
Will I retire or break 10K?