Nintendo Wins Lawsuit Over R4 Mod Chip Piracy

schliz writes "The Federal Court has ordered an Australian distributor to pay Nintendo over half a million dollars for selling the R4 mod chip, which allows users to circumvent technology protection measures in Nintendo's DS consoles. The distributor, RSJ IT Solutions, has been ordered to cease selling the chip through its gadgetgear.com.au site and any other sites it controls, as well as paying Nintendo $520,000 in damages."

Comments

Games from different regions?

[aussie_a]

The distributor advises consumers to use their modification devices for legal reasons only, such as playing legal copies of games from different regions

Wait, what? I thought handhelds (both the Gameboy Advance, Nintendo DS and PSP) weren't region-locked, but were in fact region-free. This allows people to play games from any region without having to resort to "chipping" their devices (which can often cause permanent damage). If the Nintendo DS is region-free, how could this be a legal purpose for this device? Or is it, in fact, region-locked?

Re:Games from different regions?

[bbqsrc]

This article seems rather flawed. R4 is a cartridge that takes micro-SDHC cards that could use homebrew applications on your DS. The DS is not region-locked whatsoever. They're evidently attempting to apply previous understanding of consoles to this one and falling rather short.

This is also not the only homebrew cartridge available for the DS, and by far not the best, but probably the most well known. I bought one so I could use emulators and DSLinux :)

Re:Games from different regions?

[Shrike82]

Apparently the DS is region free so that's one legal defense out the window.

Re:Games from different regions?

[Zedrick]

Only one legal defence should be needed: I have the right to do whatever I want with stuff I've bought.

Luckily I live in a free country where I'm able to do that (and buy/sell modchips for whatever purpose) - at least for now.

Re:Games from different regions?

[mustafap]

>Sure you do but profiting off it is another matter.

I hope you don;t mean that.

If I buy object "a", and create useful additions to that object, I bloody well should be able to profit from it.

If the leased me the DS then it would be a different matter. But I purchased it, so I shouldn't be considered a criminal if I hack it, paint it, blow it up, whatever. It's now mine, and my business what I do with it.

Re:Games from different regions?

[Shrike82]

I do agree (partially) with what you say in principle, but it's not quite that black and white. If you buy a gun you're not free to remove the serial number, nor are you free to fire it indiscriminantly into the air. If you buy a car you're not free to add a nitrous system to it if you want to drive it on the street. You buy a house you're not free to add a massive extension without permission. Life is full of these little rules that are there for good reason.

I'm sure Nintendo don't really care if you crack open your DS and start playing about with it. They do care if you crack it open, modify it to circumvent their security and start playing pirated games on it. Similarly, they're obviously very concerned about a device that, let's face it, is used almost entirely for playing pirated games.

Re:Games from different regions?

[LKM]

I think the gun comparison is interesting. You can legally buy a gun, but you're not allowed to shoot people with it (usually). Likewise, it should be okay to buy an R4, and illegal to use it for piracy. And there actually are valid reasons for owning an R4.

Re:Games from different regions?

[geminidomino]

So GP posts to a site about a homebrew/indie game to give an example of a reason to legitimately own an R4 (or similar device) and you come back with "The R4 used entirely for counterfeiting and piracy?"

Do you work for Nintendo's PR department, or are you just functionally illiterate? And if there is a legitimate use (even if it is, as you claim "Very little") then why the hell would those who use it as such NOT cry foul at the sale of the device being banned?

Re:Games from different regions?

[jedidiah]

This nonsense is why I never used an xbox as an HTPC. Although I used a hacked AppleTV in this capacity for awhile.

Then cheaper, open, PC hardware surpassed both of those "consoles".

Still, being able to do what I want with those physical things that I own
can be very handy and can add value to "appliances". The notion that you
assume by default that such hacks are only for piracy is fundementaly
anti-democratic.

Re:Games from different regions?

[Wumpus]

I have an R4 which I use to load my own code to the DS. I never used it to play pirated ROMs. The R4 does have legitimate uses as a development tool.

Re:Games from different regions?

[Hatta]

There's a couple of reasons. First, homebrew. You can use your DS as a decent MP3 player, or even video player (with transcoding). There are also apps to take notes, read ebooks, etc. etc. There's even a handy scrabble dictionary, and some homebrew games available. (Amazingly, Quake runs pretty well on the DS.) A French court recently ruled that flash carts were legal for homebrew purposes.

There's also convenience. It's just easier to carry one card with your entire collection of DS games instead of juggling a dozen carts when you travel.

That said, there's plenty of illicit uses for such a device as well.

Re:Games from different regions?

[Midnight Thunder]

I have an R4 which I use to load my own code to the DS. I never used it to play pirated ROMs. The R4 does have legitimate uses as a development tool.

From my experience you are probably amongst the exceptions. I always find it odd that while the DS is one of the biggest selling consoles and ranks high in sales charts, its games don't - I don't whether this is due to the impact of the R4 or some other factor that I am not taking into consideration.

It would be nice to see lower priced games for the DS, especially a good number of them seem to have had the same development effort as some of the games for the iPod Touch.

Re:Games from different regions?

[rattaroaz]

If I buy object "a", and create useful additions to that object, I bloody well should be able to profit from it.

I hope you don't mean that. If your rights interfere in a corporation's ability to make money in even a theoretical, possible, not necessarily plausible way, you no longer have any more rights. Now, if you were a multi-billion dollar corporation, then okay, your statement is accurate.

Re:Games from different regions?

[suomynonAyletamitlU]

I'm not entirely up to speed on the whole thing, but I think that that mentality (which frankly is pretty stuck on itself in the first place) is upset when the company provides a service, such as online play; if your unauthorized additions may cause tremendous upset in online play, such as by allowing hacking in online play, then those people are detrimental to the future of your platform, not merely game sales.

You see it a lot in online games on the PC; in order to prevent cheating on multiplayer, they have to have draconian addons running in the background to monitor for hacks, memory viewers/editors, etc. These systems are also themselves imperfect and have in many cases caused PCs to crash, etc. I don't for a moment believe that popularity of gaming on the console as opposed to PC is unrelated to this. Frankly, the existence of a console that it is forbidden to mod is also the reason why they don't have crippling DRM; they simply assume that a cartridge is either good or it isn't, and that's that.

So by all means, force them to implement harsher and harsher restrictions in software merely so that they can keep their platform's reputation and game sales. What possible repercussions could there be?

Re:Games from different regions?

[MadChicken]

What? You do know the R4 has an SD slot, and it's not a sealed flash cartridge. It would be super easy to tell them apart.

I have an R4. All of my games personally dumped from games I own (NDS Backup Wi-Fi Tool rules), but some of the better games are 100% homebrew - VideoGame Hero and DScent are two that I really enjoy.

So "entirely for counterfeiting and piracy"? My lone personal example proves you 100% wrong. Thanks for shopping.

Re:TPM?

[jayke]

Depending on the system, definitions can be found outside of the actual legal text. In some systems there is extensive documentation outside of the actual legal text, often based on the prepatory work that was conducted before passing the law. In other systems definitions and specifics are left to the courts, while in other systems the legal texts are extremely detailed.

All of the above systems have their pro's and their con's, but to my knowledge there are very few modern legal systems where you would expect everything you need to know to be located in the actual legal text of the law in questions.

Re:TPM?

[bbqsrc]

But by that logic, couldn't you simply state that the entire system is a technical protection measure, and that by using anything with it that is unlicensed by $company is suddenly breaking the law? That seems to be what happened here.

How come the usual BS didn't work?

[aussie_a]

Modding consoles, selling chips to mod consoles and selling services to mod consoles have been deemed legal in Australia in the past due to the justification that they allow you to play backed up versions of games you've legally bought. Of course this is a valid reason to want to mod a console, but its also a "nudge nudge, wink wink" situation as the people who would actually mod their console only for playing backed up versions of their game would be in the extreme minority.

But this bullshit justification has always been enough in the past to stop people from facing the consequences of selling chips to get around DRM in consoles. So how come the excuse didn't work this time? Is it because its a civil trial? I understand the burden of proof is much less in civil, but if this was a successful avenue for corporations to take, I'm sure Sony would have done it years ago with the original Playstation. Did the defendants in this case mess up and get caught actively encouraging people to use their chip to pirate games?

I RTFA, but it was completely silent on how Nintendo managed to win this court case.

Re:How come the usual BS didn't work?

[bbqsrc]

Did the Playstation chipping case occur before or after the Australia-US Free Trade Agreement? If you weren't aware, our copyright laws were heavily modified by that "trade" agreement.

Re:How come the usual BS didn't work?

[aussie_a]

Oh goodie. Yet another thing to thank Johnny Howard for.

Given I'm talking about the original playstation (which is when I heard about this legal loophole that allowed stores to openly selling their services to chip playstations) and the PS2 came out in 2000, I'm going to assume it happened before the free trade agreement ;) (I don't remember the exact date I saw stores openly selling playstation modding services, but I do remember being quite surprised and either seeing something about it on the news or looking it up on the internet).

That said don't misconstrue this as to have any actual sympathy for people selling devices to get around copyright protection. I understand that these devices can be used for homebrewing. And I'll support the first to support any company that actually tries to make a business out of homebrewing for the Nintendo DS. But first that company will have to do a pretty damn good job convincing me they really are trying to make a business out of homebrewing and aren't using it as a legal pretext to allow people to pirate DS games.

Re:How come the usual BS didn't work?

[discord5]

That said don't misconstrue this as to have any actual sympathy for people selling devices to get around copyright protection. I understand that these devices can be used for homebrewing. And I'll support the first to support any company that actually tries to make a business out of homebrewing for the Nintendo DS. But first that company will have to do a pretty damn good job convincing me they really are trying to make a business out of homebrewing and aren't using it as a legal pretext to allow people to pirate DS games.

There is no business in homebrewing on the DS. But as someone who's spent a substantial amount of time in tinkering with the DS, let me reassure you that it's a lot of FUN! (Warning: your definition of FUN may vary). By todays standards you've got a very limited amount of room to do your work in and you have to make the most out of it, and most of the code you write is going to be really close to the hardware. If you're remotely interested in this sort of thing (even if you're not going to write a game), the DS is a pretty cheap ARM platform for all the hardware that's in it:

• two small screens, addressable through several memory banks, with several modes of operation (including a rudimentary OpenGL like 3D API on one of the screens)
• a touch screen interface
• wifi
• sound output via speakers and input via microphone

The DSi even has two cameras onboard, but I don't think they're supported by libnds yet.

Oh, and of course, very interesting is that a lot of people have made the source code for their homebrew games available. Sometimes you'll just go and have a peek at how someone else did something, and discover something really ingenious, often optimized to give the best performance given the limited hardware available.

But let's face the fact, without Nintendos official seal of approval (read: a wheelbarrow of cash and a reputable game-company backing it) there will never be any real money in whatever you're going to code. If you want to do something commercially, you'll have to buy Nintendos tools, etc. If tinkering with a piece of hardware you buy is going to make you a criminal, I fear for the next generation of geeks.

Just wait until they take a look at DSi carts

[marcansoft]

Every single DSi-compatible DS cart, including Datel's Action Replay DSi, includes portions of a pirated cart ROM. Nintendo started signing all executables and retroactively signing the existing library of DS games (they include the hashes built in to the DSi firmware), so the only way you can get an unofficial DS cart to run on the DSi is by pirating a game's executable/header and partial data and then using a data file exploit (data files aren't signed) to make it bootstrap your code. These DSi-compatible cartridges even show up with the game icon of a real game in the menu, since that part is also signed.

If that isn't a lawsuit in the making then I don't know what is.

Re:Just wait until they take a look at DSi carts

[drinkypoo]

This is different, as the end product doesn't just incorporate a trademark or code that shows a trademark, but rather almost a megabyte of a game. That falls under copyright infringement, not trademark misuse.

Sega v. Accolade didn't make a distinction based on the type or quantity of content. It simply stated that if you have to include the magical secret code for the game to function, you may include it. So far, that case has held up and/or not been challenged even in the face of the DMCA and its clauses about defeating a copy protection mechanism, so I figure it's probably pretty secure here too.

IANAL, but in my opinion a whole different case would be needed to establish whether copying a large amount of code/assets/whatever can be regarded as fair use if it is a requirement to be able to run unlicensed original code.

IANAL either, but; I agree that a whole different case would be needed, but there's already ample provocation to bring one if "they" think they can win. This hasn't happened, so I suspect that the lawyers don't agree with your assessment that it's clear infringement.

This is a long way from just showing a SEGA or Nintendo trademark.

The trademark was included in the code, not shown. The trademark display was a Dreamcast thing and came dramatically later. Go read up on SvA on Wikipedia please.

Re:Just wait until they take a look at DSi carts

[marcansoft]

Sega v. Accolade didn't make a distinction based on the type or quantity of content.

Sure it did. As I said, there are two parts to the lawsuit: reverse engineering SEGA games in order to write your own, and copying the SEGA trademark as required for the console to boot. Part 1 doesn't apply here, because the game's code was not copied in order to write the ARDSi code - rather, it was copied because it's essentially a requirement for the console to boot. The distinction is that the lawsuit only relates to trademark law as it relates to getting consoles to boot, not copyright law.

In other words, the lawsuit said:
(1) You can reverse engineer game code, copy it internally, use it to learn the underlying operation of the hardware, and write your own game from the knowledge learned (containing little to none of the original code)
(2) If the console forces you to include a trademark in order to boot, you may do so, even if you're not actually licensed to use the trademark.

It did not say:
(3) You can copy almost an entire game verbatim in order to exploit it to run your own code

The intent is the same - to run your own unlicensed code - but the means are totally different. (3) is not (1) because (1) is about copying code for reverse engineering, but then distributing a final game that includes little to none of the original code. (2) is not (3) because (2) concerns trademarks, and (3) concerns copyright.

This isn't a case of "magical secret code" - there is no magical secret code, Nintendo simply uses cryptographic techniques in order to completely block third-party software. There is, simply put, no way of actually booting third-party software on a DSi without first making use of an exploit or hacked version of original software. The console won't boot your code, it'll only boot a complete, verbatim, unmodified copy of a licensed game executable, so you have to include the entire thing and then work on tricking it into subsequently loading your stuff. And the only reason this works is because Nintendo isn't also signing data. For example, the Wii signs all data, and there you're completely screwed: you can't run original code at all (from a disc).

IANAL either, but; I agree that a whole different case would be needed, but there's already ample provocation to bring one if "they" think they can win. This hasn't happened, so I suspect that the lawyers don't agree with your assessment that it's clear infringement.

DSi carts are relatively recent. The gears of lawyers and the legal system move slowly.

The trademark was included in the code, not shown.

The trademark SEGA string caused the Genesis III to display the "licensed by SEGA" screen. Same thing, effectively speaking.

Re:Just wait until they take a look at DSi carts

[tepples]

It did not say:
(3) You can copy almost an entire game verbatim in order to exploit it to run your own code

Sega v. Accolade didn't, but another case did.

Re:TPM?

[Farmer Tim]

I'd like it if anyone could find "technical protection measure" actually defined within any Australian law.

Copyright Act, here and here.

Re:TPM?

[rjch]

Never mind the "technical protection measure". There's enough precedent alone for an appeal...

Re:TPM?

[jimicus]

It most obviously does NOT mean "technical measures which protects from running unauthorized code", because then the R4 wouldn't exist.

If there was such a thing as a 100% reliable technical protection measure, there would be no need for such a law to exist.

How the...

[Pojut]

Considering this is Slashdot, how has no one explicitely pointed out that the R4 isn't a modchip?

Re:How the...

[Pojut]

That's just it though, it doesn't modify the functionality of the internal hardware in any way...as far as the DS knows, a normal game cartridge has been loaded into the cartridge slot. That's why you can use it without modifying the DS handheld.

It's your system

[Murdoch5]

You should be allowed to do what ever you want to your system. Are they going to sue me for putting a mod chip in my Game Cube? Modding my SNES? Even modding my Gameboy. If you paid for the system you can do what you want to it.

Re:It's your system

[Tjebbe]

True, and in this case it's not even a chip, just a game card where you can insert a memory card, and run your own stuff.

I have one, and it only contains one game; nethack-ds. I fail to see how that would be illegal.

Goerge Miller had it all backwards

[elrous0]

It's funny now to go back and look at "Mad Max" and realize that the premise of that movie was that the future of Australia would involve too much lawlessness and a lack of legal enforcement (criminals going free, no law to protect citizens, etc.). Now here we are in the actual future and Australia of late is looking at actively censoring the internet, banning any videogame that shows blood, imposing criminal and civil sanctions on people for modding their videogame consoles, and even banning criticism of lawmakers. It seems that the Australia of 2010 turned out to be more of a police state than a free-wheeling lawless anarchy. Turns Tina Turner was right. We didn't really need Max at all.

Did Nintendo kill the DS Mod community?

[MobyDisk]

I wrote a fairly popular DS app a few years ago, but I saw the writing on the wall for this platform. Between Nintendo making it harder to get these chips, and cell phones becoming more open, I don't see much point in writing for the DS. It's a shame: I think Nintendo could be where Apple is today with the iPhone, had they opened the DS. It had so much potential. Now, it is simply out of date.

"It's my hardware..."

[boondaburrah]

Y'know, I was actually thinking about getting a DS, but now that I can't load up emulators for older systems (like my GameBoy Pocket) or homebrew games, I might have to get a PSP. It seems you can't have both a system that's well known for a good library of games, popular, and a system that's open to homebrew (officially or otherwise) in the same package. Of course, there's Windows, I guess - but I'm tired of dealing with all of the slight-little driver issues to full blown failures of my computer and such with PC gaming, and would like a console that's open for development without this app-store xbox-live approval (sdk costs money) nonsense. It would appear that game publishers would avoid a console like that like the plague though, for fear that someone will develop a "Game Backup Tool." Of course, if consoles create a legal, fair way to backup games and do homebrew, then there would be little to no reason to hack except for piracy. Unless you're hacking for hacking's sake, in which case you probably don't care about whatever online service they'll ban you from anyway.

Copyrighted boot sector under U.S. law

[tepples]

If that isn't a lawsuit in the making then I don't know what is.

I don't know much about copyright law in Australia, but at least in the United States, an argument from a copyrighted boot sector doesn't hold legal water, not even after the DMCA. See Sega v. Accolade and Lexmark v. Static Control Components.

Re:Feh

[tepples]

I gotta admit I can list off about 16 people who all own DS's and Modchips, and half of them have yet to pay for a legal copy of a game for the DS. The other half run *mostly* modded games. None of them use the R4 for any legal 3rd party applications.

Then add tepples as #17 and replace "None" with "One". The microSD card that I used with my R4 back when I was still into DS includes MoonShell, DSOrganize, Colors!, Lockjaw, and a couple saved game management utilities, but no pirated DS games.

freedom protection

[sixsixtysix]

i don't care if 99% use something for piracy, the other 1% should never be affected. i should be allowed to tinker with whatever i buy, and if i can do something myself, i should be able to pay someone else to do it for me, whether it be modding my own hardware(or am i licensing the hardware?) or archiving my legally purchased media to whatever format i choose(seeing as i am allowed to record and archive content off the tv, why can't i use the internet as a dvr?).
what's even more ridiculous is the bullshit development licensing consoles have in the first place. anyone for that system, would have to be for development licensing fees on windows, linux, mac, etc. they are all computers ffs!