NOA to Sue for Flash Advance Linkers 688
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?"
Description (Score:5, Informative)
FYI: The whole letter.... (Score:3, Informative)
Nintendo of America Inc. (NOA) is providing this letter of notification pursuant to the Digital Millennium Copyright Act, USC 17 1201(b) (DMCA) 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 the internet site found at www.zophar.net infringes Nintendo's intellectual property rights 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 turn over your remaining stock to Nintendo.
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 contact Nintendo of America Inc. at the following address, telephone and fax numbers, and/or e-mail address:
Nintendo of America Inc.
Attn: Anti-Piracy Group
4820 150th Ave. NE
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.
Sincerely,
NINTENDO OF AMERICA INC.
Some questions (Score:3, Informative)
What part of the DMCA gives NOA the right to ask for the unsold stock?
Re:Some questions (Score:2, Informative)
Here's the info. (Score:4, Informative)
The Flash Advance Linker is the first professionial mass produced development device for the Gameboy(TM) Advance.
Just like a Cradle for your Palm or other Handheld Computer, the GBA Flash Advance Linker is plugged in to the printer port of your PC. Once connected, it can simply send and receive game ROM data from or to the plugged in game or Flash Cartridge.
Reading out game ROM data (dumping):
Once your original GBA game has been plugged in to the Flash Advance Linker, you can use the provided software to read out the rom data and save it to your local PC harddrive as a so-called ROM file. The Flash Advance Linker also lets you read out the savegame to store it in an extra file - you won't use any game data, e.g. when the battery in your original GBA game gets empty.
Sending ROM files to your empty cartridge (Flash Advance 64/128/256M):
Simply use the provided software to open the ROM file from your harddrive, it will then send the data through the printer port to the Flash Advance Linker, which will store the data in the Cartridge - just as when you connect your MP3 Player to your PC to 'fill' it with songs. Totally easy!
***
Yup, this can be used to pirate games. It can also be used to back them up, too... But hey, the DMCA doesn't care about that.
Why Nintendo went after them (READ) (Score:5, Informative)
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.
nope (Score:2, Informative)
Re:And the DMCA apply's how? (Score:1, Informative)
Hey you law-types: Staple Article of Commerce? (Score:2, Informative)
That being said, it looks like its yet another example of the ol' "substantial non-infringing use" argument. This is the same logic that Sony floated to get the VCR past Hollywood's objections back in the day. For anyone interested in poking around on FindLaw.com, that's Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984). See also Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988).
The basic idea is that the VCR was a 'staple article of commerce' - it was widely used for legitimate, unobjectionable purposes, such that this value outweighed any infringing conduct that it might facilitate. I'd like to hear what any other law-oriented folks out there think.
Can the Flash Advance Linker be construed as a staple article of commerce? Isn't this the same argument that Diamond made to avoid an injunction on the Rio?
On the one hand, the back-up capacity of a product always lends creedence to the substantial non-infringing use argument. And suppressing the device to prevent public-domain games from entering the market might even be construed as misuse of copyright (reference Napster's counterattack on A&M... but I digress...)
On the other hand, notice of alleged infringement goed toward undermining the 'staple article of commerce' argument. The Ninth Circuit's Napster opinion suggested that the 'staple article of commerce' argument only went toward the knowledge element of contributory infringement, and thus didn't matter, because the evidence demonstrated that Napster clearly had knowledge of the infringing conduct.
Come to think of it, I don't know of any distributors ever making this argument. Particularly when no one has raised any arguments about contributory infringment.
So what do all you IP types out there think?
DMCA section 1201(b) (Score:4, Informative)
(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.
(IANAL) www.visoly.com markets the device as a means for independant game developers to produce their own cartridges. Unless you or someone you know is marketing it as a game copier, NOA would have to prove that independant game developers are a "limited commercially significant purpose", or that visoly is cooperating with someone who is marketing the device as a game copier.
DMCA (Score:2, Informative)
They say it is illegal according to section 1201(b), but they don't get too specific.
By their own argument you can say that section 1201 (b) section 2) paragraphs (A) and (B) protect YOU because
``(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
``(B) has only limited commercially significant purpose oruse other than to circumvent atechnological measure that effectively controls access to a work protected under this title
Furthermore, section 3) paragraph (A) States,
``(A) to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a tech-
nological measure, without the authority of the copyright owner;
Does this device actually descramble or decrypt anything? Dont they put copy protection on their roms?
By using those two statements in section 2, they are implying the only commercial use of this device is to copy ROMs. The defense is that the device is intended to allow a would-be game programmer to program a flash device and develop his/her own games for the GBA. I believe in the USA you are guilty until proven innocent. This means the burden of proof that this device has no other commercial use is upon NOA. Either they prove it or they shut the fsck up.
On the other hand, money buys politicians. Good Luck, you'll need it against them arseholes!
"Any pro bono lawyers out there?" (Score:5, Informative)
of course the first place to start is the eff. If nothing else, they might be able to point you in the right direction.
I have a Game Boy Advance flash linker here... (Score:5, Informative)
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.
--
Input error. Replace user and press any key to continue.
Re:Some questions (Score:3, Informative)
search page [ustreas.gov] if you
search for Flash Advance Linker under the link to
rulings by their HQ) contains their own justification for getting involved, as well as their legal reasoning. The official rationale for having the authority to rule is as follows:
"In the instant case, the question before us deviates somewhat from the more traditional cases involving Customs copyright infringement enforcement in that the subject question involves application of certain provisions of the Digitial Millennium Copyright Act (17 U.S.C. 1201) (hereinafter DMCA). That is, Customs here is providing administrative enforcement not on the basis of whether one work is "substantially similar" to another, but rather, on those provisions of the Copyright Act of 1976 that address "circumvention" which the DMCA was promulgated to address. Regardless, the question presented is whether a particular device constitutes an infringement of law under Title 17, U.S. Code."
"The role of Customs in issuing substantive decisions of copyright infringement as to imported merchandise was addressed in The Miss America Organization v. Mattel, Inc., 945 F.2d 536 (2d Cir. 1991). Citing section 603 of the Copyright Act of 1976 (17 U.S.C. 603), the court recognized Customs authority to enforce the provisions of the law prohibiting importations of infringing goods. Id. at 538."
The four specific allegations Nintendo made against Flash Advance Linker were as follows:
"(1)the floppy disk which is provided as part of the "GB Flash Advance Linker" has no function other than to bypass the "Game Boy Advance" access restrictions, and therefore meets the statutory requirements of 17 U.S.C. 1201(b)(1)(A);"
"(2)the "GB Flash Advance Linker" illegally copies Nintendo's Game Boy Advance video game data from its cartridge format to a flash memory cartridge (Flash 64M RAM card, distributed with the "GB Flash Advance Linker" device, in contravention of 17 U.S.C. 1201(b)(1)(A));"
"(3)the "GB Flash Advance Linker" illegally copies Nintendo's "Game Boy Advance" video game data from its cartridge format directly to a PC hard drive, using the printer port connection of the "GB Flash Advance Linker", from whence it can be uploaded to the internet for unlimited copying, in contravention of 17 U.S.C. 1201(b)(1)(A); and"
"(4)the "GB Flash Advance Linker" is also primarily designed to circumvent technological protections, and has only the most limited commercially significant purpose other than to circumvent protections, in contravention of 17 U.S.C. 1201(b)(1)(B)."
Long story short: US Customs did their own
lab investigation of Flash Advance Linker, agreed that FAL could do what it's advertised as doing, and agreed with all of Nintendo's four points.
I hope this case (or something similar) goes to
court and results in DMCA being ruled unconstitutional. I can't actually disagree with the U.S. Custom folks' decision; it is an entirely rational application of the law as it stands. It's just that the law as it stands is insane.
Re:So wait... (Score:5, Informative)
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."
Re:So wait... (Score:2, Informative)
"Oh, I hit flamebait! Time to mod this one down!"
hehe
Re:quick lets jump on the dmca bandwagon (Score:2, Informative)
Still, I think the hobbiest uses of the Flash Advance Linker should enable it to still be sold here, despite its potential use for piracy. The benefit to society of hobbiest development in continuing the US's leading role as a game content creator is more important than the small number of sales lost to pirates.
-no name, since Nintendo would crush my company if they knew who I was.
Just like DeCSS? (Score:3, Informative)
Nintendo will claim the DeCSS case as a precedent, saying it allows people to pirate their games. The users will claim it's fair use. Who's going to win?
Nintendo.
Emulators and development. (Score:3, Informative)
That being said, the people selling this thing are probably still screwed, since it's likely Nintendo can claim that somewhere in their product is some obfuscation (like an undocumented pinout on the cartridges) that qualifies as a copy protection method that this unit circumvents. As you say, the law sucks, but it's still a law until struck down or repealed.
We need a legal opinion here.... (Score:3, Informative)
Okay--we need to hear from /. readers who actually ARE lawyers. In particular, we need to hear from geek lawyers who are familiar with federal regulations, how they are formulated, and what is the precise legal meaning of "ruling."
This letter from Nintendo is a threat. Find a small business, threaten them with the wrath of God, watch them roll over. But--the threat has to be credible. The premise of the threat from Nintendo is contained in the second paragraph of the letter:
The key question here is, what ruling was made by the U.S. Customs Service on December 20, 2001? Was this a ruling in a judicial proceeding? If so, does the U.S. Customs Service have the ability to conduct judicial proceedings that are binding on other jurisdictions? (I seem to recall that Admiralty courts in the U.S. are conducted by the U.S. Customs Service. But the DMCA and its application to a game cartridge emulator would seem to be outside the purview of an Admiralty court.)
Or was the "ruling" akin to the "private letter rulings" issued by the Internal Revenue Service, which are used to advise tax professionals of the IRS's view of the legality of a given strategy or vehicle. In other words, did Nintendo of America go to a U.S. Customs Service office, present some documentation asserting that the Flash Advance Linker could be used to illegally copy Gameboy cartridges, and thus (they argued) it violates the DMCA. If it is the latter, I would think the threat from Nintendo carries a lot less force--they got somebody to agree with their view of the situation. That's not the same thing as having as precendent a settled issue of law. (For contrast: if you get a letter from the local Temperance Union insisting that you cease and desist from the manufacture, transportation, distribution, and/or sale of beer--because you're in a "dry" county--you're in a different fight. Temperance rules may seem silly, but they're a settled legal issue.)
If the DMCA is to be challenged, these guys need help
A common legal tactic is to establish a court precendent someplace, and then extend that precendent across the country. I learned this the hard way, early in my career, when the Internal Revenue Service decided to make an example of my employer at the time [prpbooks.com] (Presbyterian and Reformed Publishing Co. v. Commissioner of Internal Revenue, 743 F.2d 148 (3rd Cir. 1984).). We won--but only because of substantial financial and legal support from other (larger) publishing houses that stood to be hurt down the road. Almost twenty years ago I was hustling contributions to a legal defense fund of more than $50K--today it would require much, much more than that.
There is an alternative...
You generally cannot intervene in a private lawsuit. And Nintendo is almost certainly assuming that this store isn't going to go all the way to court over this. But you can ask your Congressman to "look into this" and report back to you on the merit of foreign software corporations using the DMCA to prevent U.S. software developers from writing software for a popular computing platform. With enough publicity, and enough questions from Congress, Nintendo might be persuaded to back off.
for the record (Score:2, Informative)
My 2 cents (Score:2, Informative)
Re:Want to arrest me for rape? (Score:5, Informative)
CD burners, floppy drives, VCRs cassette tapes, photo copiers, etc. have substancial non-infringing uses. Nintendo will argue that this product does not.
Re:Do what? (Score:3, Informative)
Copyrights cannot be lost by not defending them, only trademarks.
Remember, it's just a letter... (Score:5, Informative)
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.
Re:Why Nintendo went after them (READ) (Score:1, Informative)
http://www.cultchyldren.com/
I have 250 GBA games...cost $0 (Score:2, Informative)
I bought the GBA linker and now the bridge(for GBC and GB) which brings my total to over 500 games I didn't pay for!!!
I also develop games as well, so I am using it for some legal usage...
Re:Gameboy Programming (Score:2, Informative)
Secondly the flash advance looks *strikingly* similar to the MGD3 made by BUNG. As far as anyone can tell, bung is still making the flash advance under a new name considering they didn't even bother to change the molds.
Yes they got sued, but as far as anyone can tell they are still in the biz.
Re:you guys are forgetting the point fo the DMCA (Score:3, Informative)
Re:I can tell you why NOA cares about this (Score:5, Informative)
Did they tell you this personally, or are you just pulling it out of thin air? Because they must have fucked up their marketing message with me. I've been using it to dev on for several months now, and I have never once put a commercial ROM on it. Where did I find out about it? From a promotion on a GBA development site, where they give a commission to the guy running the site if you buy one.
So how is GBA development not the intended market for the product, given the fact that they advertise heavily on all of the GBA amateur dev sites I visit?
Sega vs. Accolade (Score:2, Informative)
You'll also notice the GB(Orig/Pokt/Lite/Colr/Advc) has the "Nintendo(R)" logo placed/scrolling, and when you take out the cart, it turns black. (At least on a GBO/P/L/C) There are about 20 bytes in the ROM file (I know, I've worked with these suckers) that have that graphic in GBC packed tile format that is checked in ROM. (NoA has also sued a church group making edutainment for the GBC for infringement, NoA lost.) Also, if anyone remembers the Y2Kode demoscene compo, NoA sent a C+D to Lik-Sang/Y2Kode saying you're gonna get a court summons if ya don't take down the GBC ROMs. NoA has always been against the demoscene, and always will. I suggest a boycott.
--Joshua, swinging a GBC flashcart+XChanger (NoA sent a C+D to the people who made that to, the Bung device, they're dead too...) by the parallel cable
Yet another reason to hate the DMCA (Score:3, Informative)
If Nintendo were to lose said suit, the only harm to them is the legal cost which is a drop in the bucket for them. If the accused loses, then there's legal fees and whatever damages are awarded. Heck, even if the accused wins, that will be after years of protracted legal rangling at exhorbitant costs. So the DMCA completely slants the legal playing field to the accuser. If I'm NOA, or any other company, it is in my best interest to swamp people with cease and desist letters because the odds are nobody will try to fight me. If they refuse, then it's up to me whether I feel like going after them.
Smart companies will, of course, pick and choose their battles, to work out a strong court precedent. Why go after the New York Times for publishing something when you can go after a hacker magazine? Eventually a strong legal history develops that pretty much gives any device manufacturer carte blanche to declare how people are allowed to use their systems, regardless of copyright issues.
Seems to me that there needs to be some protections in the DMCA for false accusations. While a company has to swear they are not purgoring (sp?) themselves it's next to impossible to prove that they did. They can simply say that they thought it was a violation and turns out they were wrong. There needs to be some penalty for going after somebody, otherwise there's no reason not to try to go after everybody on a whim.
Oh, and as a side note, is it just me, or did the Customs officials just get handed a huge amount of power under our noses?
Visoly's web page emphasizes homebrew (Score:2, Informative)
The problem is that this site (and many others) make it fairly obvious that "this is a copier" and "we are going to copy illegal stuff with it".
The manufacturer's web page [visoly.com] clearly states that "The Flash Advance 256M is furthermore the perfect choice for any professional Gameboy Advance developers or even home developers - Create your own games using your PC (free software is available) and simply use the Flash Advance 256M to show your game/demo to friends or test it on real Hardware." Heck, every single page links to gbadev.org (a homebrew site).