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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.
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.
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, 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.
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Windows 2000/XP stable? safe? secure? 5 lines of simple C code say otherwise!
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.
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
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.
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.
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
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
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.
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.
Dear Sam Michaels:
a cc
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.
sig?