UK Courts Rule Nintendo DS R4 Cards Illegal

CheShACat writes "A UK high court ruled today that R4 cards for the Nintendo DS are illegal, finding two vendors guilty of selling 'game copiers.' The ruling by Justice Floyd is quoted as saying, 'The economic effect on Nintendo of the trade in these devices is substantial as each accused device can store and play copies of many Nintendo DS games [...] The mere fact that the device can be used for a non-infringing purpose is not a defence.' No word in the article as to what law in particular they were found to have broken, nor of the penalty the vendors are facing, but this looks like bad news for all kinds of hardware mod, on any platform, that would enable homebrew users to bypass vendor locks." Nintendo won a related lawsuit in the Netherlands recently, in addition to the one in Australia earlier this year.

Comments

Re:Apply logic to other things...

[cappp]

It’s impressive what a little selective quoting can do. The ruling in full reads

One such suggested lawful use is for home-made games. However, such use will still circumvent the ETM, or otherwise the game will not play. The mere fact that the device can be used for a non-infringing purpose is not a defence, provided one of the conditions in section 296ZD(1)(b) (considered below) is satisfied.

The judge goes into a nuanced consideration of the law as it stands, the snippet that’s being quoted is a taken out of context and ignores that huge modifier at the end there. The section in question states:

"(1) This section applies where –
(a) a technical device has been applied to a computer program; and
(b) a person (A) knowing or having reason to believe that it will be used to make infringing copies -
(i) manufactures for sale or hire, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device; or
(ii) publishes information intended to enable or assist persons to remove or circumvent the technical device.

(2) The following persons have the same rights against A as a copyright owner has in respect of an infringement of copyright –
(a) a person –
(i) issuing to the public copies of, or
(ii) communicating to the public,
the computer program to which the technical device has been applied;
(b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a);
(c) the owner or exclusive licensee of any intellectual property right in the technical device applied to the computer program

(6) In this section references to a technical device in relation to a computer program are to any device intended to prevent or restrict acts that are not authorised by the copyright owner of that computer program and are restricted by copyright.

(8) Expressions used in this section which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part."

The judge then goes on to establish the multi-stepped test required for a finding

a claimant under s.296 needs to show the following things:

(a) that there is a "technical device" which has been applied to a computer program;

(b) that the defendant:
(i) has manufactured, imported, distributed, sold etc, means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device;
(ii) knows or has reason to believe that that means will be used to make infringing copies of the computer program.

(c) that the claimant has standing to bring their claims because: (i) it is a person issuing to the public copies of, or communicating to the public, the computer program to which the technical device has been applied, or, if not such person, it is the owner of the copyright in the computer program, or his exclusive licensee; and/or
(ii) it owns or holds an exclusive license to any intellectual property right in the technical device applied to the computer program

Hardly the kind of extremist reasoning thats being suggested.