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Nintendo Wins Lawsuit Over R4 Mod Chip Piracy

Soulskill posted more than 4 years ago | from the sorry-about-your-luck dept.

Australia 146

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."

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first (1)

FRAKK2 (166082) | more than 4 years ago | (#31182360)

first

TPM? (1)

bbqsrc (1441981) | more than 4 years ago | (#31182368)

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

Seriously, I don't think it's defined anywhere, and I'm sure that's grounds for appeal.

Re:TPM? (2, Informative)

jayke (1531583) | more than 4 years ago | (#31182424)

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? (2, Interesting)

bbqsrc (1441981) | more than 4 years ago | (#31182434)

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.

Re:TPM? (4, Informative)

Farmer Tim (530755) | more than 4 years ago | (#31182482)

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

Copyright Act, here [austlii.edu.au] and here [austlii.edu.au] .

Re:TPM? (1)

bbqsrc (1441981) | more than 4 years ago | (#31182496)

Thanks :D

Re:TPM? (1)

mwvdlee (775178) | more than 4 years ago | (#31182704)

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

Any law defining "technical protection measure" must, by necessity, define that such measures are in fact not protecting anything.

Re:TPM? (3, Insightful)

jimicus (737525) | more than 4 years ago | (#31182992)

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.

Re:TPM? (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31183650)

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.

Most laws exist without any need for them.

Re:TPM? (2, Informative)

rjch (544288) | more than 4 years ago | (#31182712)

Never mind the "technical protection measure". There's enough precedent [ps3focus.com] alone for an appeal...

Thankyou for reading at -1 (-1, Troll)

Fanboy Fantasies (917592) | more than 4 years ago | (#31182388)

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a|_______|_____________\__________|______|______a_ _
t|_______`._____________|_________|_______:_____t_ _
s`________|_____________|________\|_______|_____s_ _
e_\_______|_/_______/__\\\___--___\\_______:____e_ _
x__\______\/____--~~__________~--__|_\_____|____x_ _
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g____\______\_________.--------.______\|___|____g_ _
o______\_____\______//_________(_(__>__\___|____o_ _
a_______\___.__C____)_________(_(____>__|__/____a_ _
t_______/\_|___C_____)/INSERT\_(_____>__|_/_____t_ _
s______/_/\|___C_____)_GERBIL|__(___>___/__\____s_ _
e_____|___(____C_____)\_HERE_/__//__/_/_____\___e_ _
x_____|____\__|_____\\_________//_(__/_______|__x_ _
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s___|_________/_/______\__/\___/____|__________|s_ _
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*_g_o_a_t_s_e_x_*_g_o_a_t_s_e_x_*_g_o_a_t_s_e_x_*_


Important Stuff: Please try to keep posts on topic. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

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Important Stuff: Please try to keep posts on topic. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

Games from different regions? (2, Interesting)

aussie_a (778472) | more than 4 years ago | (#31182404)

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? (4, Interesting)

bbqsrc (1441981) | more than 4 years ago | (#31182422)

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? (1)

MindlessAutomata (1282944) | more than 4 years ago | (#31183260)

To be fair, it was the best at one point in time, for a good while, too.

Re:Games from different regions? (0)

Anonymous Coward | more than 4 years ago | (#31184806)

So what's the best now, and how is it better than the R4?

BTW, GP is slightly incorrect. The R4 only takes regular SD cards (up to 2GB), not SDHC. There's a later version (R4 Plus or R4 SDHC or something) that takes SDHC cards.

Re:Games from different regions? (1)

Hatta (162192) | more than 4 years ago | (#31185308)

CycloDS is best now. The major improvement I'm aware of is save state support. Personally, I don't think that's worth the premium. ($50 vs $7 for a TTDS).

Re:Games from different regions? (1)

xtracto (837672) | more than 4 years ago | (#31183630)

I bought one so I could use emulators and DSLinux :)

You mean, using emulators to play illegal ROM copies of games?

Just FYI, in the case of these DS carts, they are in principle all illegal because the contain a segment of an illegal copy of a game. Not only that, but illegally distributing this game segment and profiting with it.

Don't get me wrong, I got a CycloDS Evolution which is really nice (I develop homebrew for myself [dual n-back and a translator]. But it is always good to have a reality check.

Music, movies, games? (1)

phorm (591458) | more than 4 years ago | (#31184860)

My buddy has one of these for his kids. He raves about how good it is for long car-rides because it allows them to watch movies etc on the DS (which has pretty decent battery life) and keeps the entertained.

As my boy's friends often trade and/or lose games, one of these would also be useful in that case (R4 stays in the DS with all the applicable games, not allowed out. Heck you could glue it in and just swap miniSD cards as needed).

Re:Games from different regions? (3, Informative)

Shrike82 (1471633) | more than 4 years ago | (#31182442)

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

Re:Games from different regions? (2, Insightful)

Zedrick (764028) | more than 4 years ago | (#31182696)

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? (0)

Anonymous Coward | more than 4 years ago | (#31182746)

Sure you do but profiting off it is another matter.

Re:Games from different regions? (3, Insightful)

mustafap (452510) | more than 4 years ago | (#31182802)

>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? (2, Insightful)

rattaroaz (1491445) | more than 4 years ago | (#31185854)

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? (2, Insightful)

suomynonAyletamitlU (1618513) | more than 4 years ago | (#31185946)

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? (1)

OrangeTide (124937) | more than 4 years ago | (#31186650)

what does profit have to do with it?

if you bought it, you should be able to sell it.

obviously with things that can be copied, you shouldn't be allowed to sell or give it away more than once without permission. hence copyright being a right to copy.
but physical stuffs, great. I should be able to buy a lawnmower, bore out the engine and add a turbo charger, and sell it. or sell a kit to extend your lawn mower into a string trimmer(weed wacker), even if the company that makes the lawn mowers also makes string trimmers.

buy companies that make electronic gizmos or license copyright material get to play by different (and unfair) rules.

Re:Games from different regions? (1)

ShakaUVM (157947) | more than 4 years ago | (#31182950)

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

Indeed. The doctrine of First Sale is rolling over in its grave.

Re:Games from different regions? (0, Offtopic)

thelanranger (1436097) | more than 4 years ago | (#31183930)

But someone like MS would include a tricky license agreement with the product which says something like "By opening this box you agree that you did not actually purchase this hardware but are only leasing it indefinitely from Microsoft Corporation" blah blah blah which allows them to break it remotely or take it back from you if you harm it.

Re:Games from different regions? (1)

ShakaUVM (157947) | more than 4 years ago | (#31184790)

But someone like MS would include a tricky license agreement with the product which says something like "By opening this box you agree that you did not actually purchase this hardware but are only leasing it indefinitely from Microsoft Corporation" blah blah blah which allows them to break it remotely or take it back from you if you harm it.

In the EU, at least, that's illegal.

They have a doctrine of customer rights or something (I can't recall what it's called) which actually stops a lot of the bullshit that we have to deal with from companies that want to sell us stuff but not really.

Indefinite lease (1)

tepples (727027) | more than 4 years ago | (#31185498)

leasing it indefinitely

In the EU, at least, that's illegal.

They have a doctrine of customer rights or something

Then how does EU law distinguish between a time-limited lease, such as renting a DVD at some European counterpart to Blockbuster, and an indefinite lease?

Re:Indefinite lease (1)

ShakaUVM (157947) | more than 4 years ago | (#31186708)

If it's a sale, then they can't pretend it's not a sale, or make a customer waive his rights.

Re:Indefinite lease (1)

tepples (727027) | more than 4 years ago | (#31186968)

If it's a sale, then they can't pretend it's not a sale

Then allow me to rephrase my question: How does the law decide whether "it's a sale", as opposed to a lease that expires 70 years after the death of the author?

Re:Indefinite lease (1)

ShakaUVM (157947) | more than 4 years ago | (#31187200)

If it looks like a sale, then it is a sale. If need be, a judge looks at it and decides.

Compare to vehicle leases (1)

tepples (727027) | more than 4 years ago | (#31187562)

Fair use statutes such as 17 USC 107 tell the judge what to look for when evaluating certain defenses to copyright infringement. Likewise, I'd imagine that the definition of "sale" and "lease" in commercial codes tell the judge what look for. But what do EU commercial codes say about this? If vehicle leases done in writing can last for three years or more, why can't leases of consumer electronics done in writing last for three years or more?

Re:Games from different regions? (2, Insightful)

Shrike82 (1471633) | more than 4 years ago | (#31183220)

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? (1)

Threni (635302) | more than 4 years ago | (#31183410)

> 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.

They also care if people do homebrew stuff, because if that were legal, it wouldn't be just individuals who'd write games for it; it'd be large companies. It's exactly what Codemasters did with the Megadrive and SNES. Nintendo (etc) make money from publishers if the publishers go through the official channels; they get to approve content, test for quality etc - and charge for it. All that goes out of the window if companies can release what they want.

Re:Games from different regions? (1)

Shrike82 (1471633) | more than 4 years ago | (#31184264)

Well I totally agree with you on this. Legitimate homebrew is a totally valid use of a piece of hardware, and should be encouraged. It's just an unfortunate thing that enabling homebrew usually also opens the door for piracy. Some decent API's and a support system from Nintendo would help them, and homebrewers, by eliminating the "I was just doing homebrew" argument from real pirates. For once Microsoft actually have the right idea (sort of) with this, and their efforts to allow people to make their own games and stuff. Holy crap, praise for Microsoft. What's the world coming to?

Then require copyleft (1)

tepples (727027) | more than 4 years ago | (#31185676)

They also care if people do homebrew stuff, because if that were legal, it wouldn't be just individuals who'd write games for it; it'd be large companies.

Then require all homebrew apps written for a system to be distributed with source code and the right to modify and redistribute [wikipedia.org] . What major-label commercial games are copylefted, other than perhaps Id games several years after release?

Re:Games from different regions? (4, Informative)

LKM (227954) | more than 4 years ago | (#31183464)

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 [gamertell.com] .

Re:Games from different regions? (0)

Anonymous Coward | more than 4 years ago | (#31183802)

The R4 is used entirely for counterfeiting and piracy. There is very little legitimate use, and such people using the item legitimately, would not be crying foul of this.

You can buy counterfeit games off eBay and the like which are simply R4's with stickers on them. These appear on eBay hundreds of times per day, from sellers in Hong Kong and South Korea, where piracy is the rule.

Re:Games from different regions? (3, Insightful)

geminidomino (614729) | more than 4 years ago | (#31184124)

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? (0)

Anonymous Coward | more than 4 years ago | (#31185262)

Here, troll, have some food.

I used my R4 for a bookreader when I owned a DS.
Most of the handheld games were boring as sin.
I have a couple of old SNES carts laying around in a box at home.

I tried the SNES emulator on the thing, with ROMs of those games (pre-dumped -- not pretentious enough to build or buy my own dumper) and was sorely disappointed.

So I went back to reading books.

If anything, the R4, M3, CycloDS, etc. are all guilty of enabling me to pirate books.
Not sports pages.
Not magazines.
Books.

Copy provenance (1)

tepples (727027) | more than 4 years ago | (#31185620)

I tried the SNES emulator on the thing, with ROMs of those games (pre-dumped -- not pretentious enough to build or buy my own dumper)

Then technically, you've used your R4 for piracy. If you dump your own Super NES Game Paks (which will become easier once Retrode is out), you're protected under 17 USC 117 and foreign counterparts. But if you obtained bit-identical files over the Internet, then you've copied the copyrighted code libraries written and licensed by Nintendo for use in Super NES games without authorization. Unlike patent and trademark law, copyright law cares [sooke.bc.ca] about the provenance [wikipedia.org] of a copy.

Re:Games from different regions? (0, Troll)

Shrike82 (1471633) | more than 4 years ago | (#31184338)

Yeah I totally agree, but the fact remains that the R4 is pretty much used exclusively to pirate games. I know three people that have them and none of them use it for anything except playing downloaded ROMs. Maybe my sample is biased, but I suspect it's probably not. If there were an easy (read that as monetarily cheap and fast) way to punish just those people using it for piracy then I'm sure Nintendo would prefer to do that. I guess their point is that people are making money of a device than can, in theory, be used for legal reasons but is in fact being used almost toally for piracy.

You don't know me (1, Informative)

tepples (727027) | more than 4 years ago | (#31185542)

I know three people that have them and none of them use it for anything except playing downloaded ROMs.

Then I take it you don't know me. I don't pirate DS games on my R4. I run homebrew apps such as MoonShell, DSOrganize, Colors!, and Lockjaw. I have played pirated MP3s on it, but I don't think Nintendo has the standing to sue on behalf of (say) its competitor Sony.

Re:You don't know me (1)

Shrike82 (1471633) | more than 4 years ago | (#31187848)

You're right, I don't know you. Apparently you missed my point. People like yourself are the minority. Therefore Nintendo are obviously going to be gunning for anyone selling or making the R4 to prevent it from being used for piracy, which in the majority of cases it's going to be. Yeah it's a shame that that screws homebrewers like yourself, but is it really that much of a surprise that this has happened?

make it all illegal (1)

OrangeTide (124937) | more than 4 years ago | (#31186700)

I only use my R4 for homebrew. I already own the 3 good NDS games, and 5 good GBA games.

Here's a car analogy: most people speed in cars, so we should outlaw cars.

A save the children analogy: most children play too many video games, so we should shut Nintendo down and make the Nintendo DS illegal.

Re:make it all illegal (1)

Shrike82 (1471633) | more than 4 years ago | (#31187894)

What wonderful arguments you make. I'll leave it as an exercise for you to see the flaws in your strawmen.

Re:Games from different regions? (1)

LordVader717 (888547) | more than 4 years ago | (#31184954)

There are loads of DS card-readers out there that will let you run homebrew code. Even Datel made one. But the reason why they go after the R4 (and also the reason why the card is so popular in the first place) is because there are always updates so that the latest and greatest games work.
Just downloaded a ROM that doesn't work? Head over to their website and download the latest firmware. Now tell me they're not about Piracy.

Re:Games from different regions? (1)

thetoadwarrior (1268702) | more than 4 years ago | (#31187916)

You don't have the right to own and play the whole Nintendo DS library on your DS for the cost of an R4 cart.

Re:Games from different regions? (1)

thetoadwarrior (1268702) | more than 4 years ago | (#31187880)

DSI only games have region protection. If the R4 is used for those then they have a point.

Re:Games from different regions? (1)

KronicD (568558) | more than 4 years ago | (#31182534)

Yeah, thats the legal protection most mod chip providers use in Australia. I got myself through uni by modding consoles and working helpdesk. I never touched a region free console like the DS or PSP, for this exact reason.

Re:Games from different regions? (1)

MBGMorden (803437) | more than 4 years ago | (#31183444)

Homebrew software is a major component. Before you laugh, I'll affirm that pretty much the only reason I modded my original Xbox was for running homebrew software - most specifically XBMC. I've since switched to using Boxee running on an AppleTV, but there are people who will want to run homebrew software on their devices, and on a video game system that usually requires a mod-chip.

Re:Games from different regions? (2, Insightful)

jedidiah (1196) | more than 4 years ago | (#31184640)

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? (2, Informative)

Wumpus (9548) | more than 4 years ago | (#31184732)

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? (2, Interesting)

Midnight Thunder (17205) | more than 4 years ago | (#31185510)

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? (3, Informative)

Hatta (162192) | more than 4 years ago | (#31185236)

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 [engadget.com] 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? (1)

thetoadwarrior (1268702) | more than 4 years ago | (#31187794)

I think they're making assumptions. There is most likely some sort of protection on DS games but not for different regions.

The one exception is if it's a DSI specific game then it will have region protection.

How come the usual BS didn't work? (3, Interesting)

aussie_a (778472) | more than 4 years ago | (#31182440)

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? (3, Insightful)

bbqsrc (1441981) | more than 4 years ago | (#31182444)

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? (3, Insightful)

aussie_a (778472) | more than 4 years ago | (#31182486)

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? (1)

Jophish (1489121) | more than 4 years ago | (#31182630)

yes, but can it run linux? http://dslinux.org/ [dslinux.org]

Re:How come the usual BS didn't work? (4, Informative)

discord5 (798235) | more than 4 years ago | (#31182700)

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 [devkitpro.org] 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.

Projects caught in the middle (1)

tepples (727027) | more than 4 years ago | (#31185754)

So if a project is too big for distribution as homebrew freeware but too small for a retail release through official channels, such as Bob's Game [wikipedia.org] , what should a developer do?

Re:Projects caught in the middle (1)

discord5 (798235) | more than 4 years ago | (#31186724)

After 17 weeks of trying and failing to get Nintendo to provide Pelloni with the SDK, on December 11, 2008, he decided to publicly protest to Nintendo by locking himself in his room for 100 days or until they provided him with the SDK, whichever came first.

Well, not that obviously.

Re:How come the usual BS didn't work? (0)

Anonymous Coward | more than 4 years ago | (#31183332)

Homebrew only carts for the DS exist, the iPlayer DS is one example.

(ex-developer of DSLinux)

Re:How come the usual BS didn't work? (1)

bug_hunter (32923) | more than 4 years ago | (#31182884)

Yeah, that trade agreement hurt. As I'm sure the parent poster knows, but for others: Prime minister (at the time) Howard had to get us a trade deal with the US basically to show the Australian voting public that the whole joining America on Iraq was worth it as it was an unpopular move.

The trade talks were going badly and at the last minute Howard made the executive decision to give in to a lot of US demands and take the hit. Showing the public that we had a US trade agreement seemed more important than showing the public that we had a GOOD agreement. Ahh politics.

Re:How come the usual BS didn't work? (0)

Anonymous Coward | more than 4 years ago | (#31182954)

As the saying goes: "John Howard was so far up George Bush's arse, he could see Tony Blair's ankles!"

You're forgetting rule #1 (1)

Moryath (553296) | more than 4 years ago | (#31183218)

You're forgetting rule #1 of law: He who has enough money to buy off a judge, decides what the legal opinion will be.

I'm sure the judge is enjoying his new Wii-shaped swimming pool.

Re:How come the usual BS didn't work? (1)

nedlohs (1335013) | more than 4 years ago | (#31183668)

There were two reasons that modchips were OK in Australia.

1. Australian law allows importing of content from overseas and circumvention of "region locking".

2. The courts accepted the argument that the law said you can't work around devices designed "to prevent or inhibit the infringement of copyright" and modchips only allowed playing copies not making copies. Playing a copy isn't copyright infringement, making the copy is so there was no "protection measure" involved and so the law against circumventing them didn't apply.

But in this case:

1. Does not apply, there is no region locking so you don't need this device in order to play imported games.

2. Parliament changed the law a few years ago to make "protection measures" include those which allow "unauthorised use".

Just wait until they take a look at DSi carts (3, Informative)

marcansoft (727665) | more than 4 years ago | (#31182478)

Every single DSi-compatible DS cart, including Datel's Action Replay DSi [hackmii.com] , 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 (1)

treuf (99331) | more than 4 years ago | (#31182524)

They actually sell the cart virgin without this modified code dumped from a valid rom.
You take your responsibilities by putting the code in there - they shouldn't be liable for this (unless a store do this for you, in that case they'll be in troubles)

They can't hold homebrews though without this afaik, but don't tell me this is the initial goal of such carts (it's a nice excuse to sell them though)

Re:Just wait until they take a look at DSi carts (1)

marcansoft (727665) | more than 4 years ago | (#31182642)

The AR DSi comes with the ROM (obfuscated inside internal flash), presumably because they don't expect users of a cheating device to go out hunting for warez. The makers of piracy cartridges probably assume their users are capable of such a feat - ironically, rendering the piracy carts more legal than the AR DSi, since they don't actually come with the ROM.

Re:Just wait until they take a look at DSi carts (1)

drinkypoo (153816) | more than 4 years ago | (#31182644)

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.

In the USA this is not lawsuit fodder because of Sega v. Accolade. In Australia, you're still screwed.

Re:Just wait until they take a look at DSi carts (1)

marcansoft (727665) | more than 4 years ago | (#31182716)

Not necessarily. Sega v. Accolade was about copying code for reverse engineering (which is an entirely separate issue, and something that plenty of people are "guilty" of these days), and the trademark issue for consoles that require a trademark to boot (like the Nintendo logo required for GB/GBC/GBA games to boot). The only code copied in the end product was that required to show the trademark, which can probably be regarded as non-copyrightable or fair use (the only issue being the actual trademark display). What the case established was that showing this trademark (even though it didn't apply) was fine since it was a technical requirement.

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

Re:Just wait until they take a look at DSi carts (3, Informative)

drinkypoo (153816) | more than 4 years ago | (#31182834)

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 (1)

b1t r0t (216468) | more than 4 years ago | (#31183070)

This is the code that was involved in the Sega v Accolade case, that Sega tried to assert copyright protection over:

. move.b $A10001,d0
. andi.b #$0F,d0
. beq.b version_0
. move.l $'SEGA',$A14000
version_0:

Source: http://en.wikibooks.org/wiki/Genesis_Programming#TMSS [wikibooks.org]

For what it's worth, pre-TMSS consoles are not very common in the US. This was added even before the rear comm port was removed.

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.

Didn't the original Gameboy require the Nintendo logo to be in the cartridge? If you turned it on without a cartridge, a black rectangle would scroll up the screen instead of the logo.

Re:Just wait until they take a look at DSi carts (2, Informative)

marcansoft (727665) | more than 4 years ago | (#31183178)

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 (2, Interesting)

tepples (727027) | more than 4 years ago | (#31185864)

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 [wikipedia.org] .

Copyrighted boot sector under U.S. law (2, Interesting)

tepples (727027) | more than 4 years ago | (#31185818)

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.

Sensationalism... (0)

Anonymous Coward | more than 4 years ago | (#31182484)

OP should have made the post title more along the lines of "Nintendo Wins Lawsuit Over R4 Mod Chip Piracy in Australia" because unless Nintendo can get something done about it in China it's not really any win at all... Shenzen anyone?

Dear R4, (0, Redundant)

V!NCENT (1105021) | more than 4 years ago | (#31182608)

Dear R4,

We are going to sue you because you make cardridges that fit into our Nintendo DS product that can read out images on MicroSD cards.

We are unhappy with this because we are a company and we like to make as much money as we can and software pirates are abusing the functionality to run pirated copies of Nintendo DS games. Therefore we think that you need to pay us a shitload of money and not the people that pirate.

Addholes as always,
Nintendo Inc.

How the... (2, Interesting)

Pojut (1027544) | more than 4 years ago | (#31182998)

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

Re:How the... (0, Troll)

Pojut (1027544) | more than 4 years ago | (#31183022)

...likely because someone was waiting to explicitly do it. -1 for not hitting preview before posting -_-;;

Re:How the... (1)

MobyDisk (75490) | more than 4 years ago | (#31184598)

It isn't?

Re:How the... (1)

Pojut (1027544) | more than 4 years ago | (#31185292)

Not in the traditional sense, no. A mod chip is usually used to describe something that is attatched (either permanently or temporarily) to the physical board of a device. The R4 is known as a "flash cart"...it looks exactly like a regular Nintendo DS game cartridge, except there is a port on it to put a MicroSD card loaded with roms on it. There is no internal modification to the DS needed for the R4 to be used.

Read more about it here. [wikipedia.org] The picture of the cart you see at the top of that article isn't an R4, but the R4 functions the same way.

Re:How the... (1)

MobyDisk (75490) | more than 4 years ago | (#31186894)

I own several, and I've always called them "mod chips" because it contains a "chip" and it modifies the function of the device. I suppose then someone could call any DS game a "mod chip" by my definition. But "flash cart" doesn't seem right since all games are flash carts too.

Given the choice, "mod chip" better describes what it does. So until a new term arises, I'll stick with that.

Re:How the... (2, Insightful)

Pojut (1027544) | more than 4 years ago | (#31187046)

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.

Re:How the... (1)

Abcd1234 (188840) | more than 4 years ago | (#31186494)

It's not, no. It's just a cart with a microsd slot and the necessary electronics to convince the DS that the storage on that card represents a DS ROM. It's a modchip in the same way that a CF -> IDE adapter is a "modchip" for your computer.

It's your system (3, Insightful)

Murdoch5 (1563847) | more than 4 years ago | (#31183430)

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 (3, Insightful)

Tjebbe (36955) | more than 4 years ago | (#31183916)

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.

Softmod anybody? (0, Offtopic)

blake1 (1148613) | more than 4 years ago | (#31183634)

Does anyone actually use Modchips on their Wii any more?

W00T 7p (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#31183766)

compl3tely before

Goerge Miller had it all backwards (3, Insightful)

elrous0 (869638) | more than 4 years ago | (#31183904)

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? (4, Insightful)

MobyDisk (75490) | more than 4 years ago | (#31184646)

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.

Feh (1)

kitsunewarlock (971818) | more than 4 years ago | (#31184754)

While in the long run it should be ethical to mod a piece of hardware you bought yourself, 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.

Re:Feh (3, Interesting)

tepples (727027) | more than 4 years ago | (#31185902)

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.

Re:Feh (1)

Again (1351325) | more than 4 years ago | (#31186516)

While in the long run it should be ethical to mod a piece of hardware you bought yourself, 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.

Same here. Even my fellow computer science friends that have flash carts use them almost entirely for pirating games. I have read on this page that there are some people who don't use the flash cart for pirating games but not pirating is very much the minority.

There would be very little demand for the flash carts if they were only used simply for homebrew.

Call me an ethical egoist but I've avoided buying myself a flash cart simply because of the piracy associated with it. I do not think that Nintendo made a good decision by going against the chip maker. But hunting down the individuals is not realistic either.

"It's my hardware..." (2, Insightful)

boondaburrah (1748490) | more than 4 years ago | (#31185552)

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.

Australian DMCA (0)

Anonymous Coward | more than 4 years ago | (#31185930)

It looks like their law [austlii.edu.au] has the same essentially unpatchable hole as DMCA. If you're in violation of the law when you use/distribute/manufacture things that are compatible with someone else's DRM, their existing implementation also becomes in violation if you ever produce a work that needs it.

Instead of making R4 chips, they should have made a game that requires an R4 chip first (just make sure you do it in such a way that you never license anything from Nintendo or otherwise give them permission to manufacture devices that protect your game). Then make the chips, and when Nintendo comes a-suing, sue them right back for doing the exact same thing. If they win, you win.

freedom protection (3, Interesting)

sixsixtysix (1110135) | more than 4 years ago | (#31186364)

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!
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