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?"
Do what? (Score:4, Insightful)
you know... (Score:1, Insightful)
Apparently, NOA reads Slashdot. (Score:1, Insightful)
If you haven't already, I would contact the EFF--even though the linker has non-infringing uses, it isn't going to look as innocent as a serial cable, but it's worth at try.
~~~
What a precedent... (Score:2, Insightful)
quick lets jump on the dmca bandwagon (Score:3, Insightful)
Ban Blossom! (Score:2, Insightful)
Hell, I could beat up old people with VHS copies of TV's Blossom, but I would never advocate banning Blossom... well, I *would*, but for taste reasons more than anything. Damn that annoying Six!
Re:Oh my God! Can it be? (Score:1, Insightful)
And the DMCA apply's how? (Score:4, Insightful)
Re:quick lets jump on the dmca bandwagon (Score:2, Insightful)
Probably not long, now that the bastards at Nintendo and Sega have the DMCA hammer. Before the DMCA, the NOA scumbags sued Galoob [harvard.edu] over the Game Genie and had their head handed to them in court. If the Game Genie were introduced today, Nintendo would invoke the DMCA's magical powers of purchased legislation and prevail.
Gameboy Programming (Score:5, Insightful)
I'll do it... (Score:3, Insightful)
Just bring up video editing stations. They're perfectly legal, right? What do they allow you to do? You can pull video off a tape, DAT or DVD, and put video onto a tape, DAT or DVD. You need to do this in order to do your job as a video content producer. You can't do your job without this equipment. If the government were to make it illegal, you'd be screwed. Since video editing equipment is still legal, thus the standard is set.
Back to the Flash thingy. GBA programmers cannot do their job without a device to put code onto the carts and get it back off them, nor can they sell their product without a means to get the programs to people.
All you have to do to win is argue that this standard has already been set in the courts with the video equipment, a precedent therefore exists, and to top it off a bunch of small businesses (which America is supposed to adore) would be obliterated without this equipment they need to perform their legitimate occupations. Seems pretty easy to me.
Call me if you want me to argue the case.
How does the flash advance work? (Score:5, Insightful)
As to "pro bono" attorneys, why would you ever need to rely on that? You're just the buyer of a vendor's accused product. As the buyer of goods under the Uniform Commercial Code, you generally receive them subject to an implied warranty against infringement. Ordinarily, even if the warranty is expressly disclaimed, purchase orders still provide for indemnification of IP claims. Why not call the vendor and ask them why their "for a buck" lawyer isn't protecting you for free? You might also ask your insurance company if you have any coverage under you general umbrella, either for advertising injury or otherwise.
Of course, this isn't legal advise one way or the other. There aren't sufficient facts presented to indicate whether or not you would be liable, not liable for the demand or have, not have a claim for contribution from your vendors or distributors. It would make sense, and you really, really have to do this now, to have a lawyer at least look at the coverage questions.
Re:DMCA or not (Score:2, Insightful)
Re:And the DMCA apply's how? (Score:2, Insightful)
There's only one flaw... (Score:3, Insightful)
"Any pro bono lawyers out there?" (Score:3, Insightful)
Even if the EFF or another advocacy group is in a position to swoop down from the sky and help take your case, this is a major international corporation you're dealing with, and a broadly written law (the DMCA) that has many constitutional questions surrounding it. You will likely need to spend the money on a good attorney to represent you if you intend to fight this.
US Customs and how it most likely made it through (Score:4, Insightful)
usually when items liked this are shipped, they are marked in a way so that customs doesn't stop them. i have seen them shipped marked as "gift" with a value of "under $30 USD". coming from Hong Kong you can get an item in less than 10 business days in this manner.
it is a constant discussion around our office when someone's linker for their GBA arrives: how does US Customs know what is inside is not drugs, kiddie pr0n, etc?? we don't know. all we know is marking it in the above fashion seems to work.
no idea if the guy in this story got his sent marked as such, but i would bet he did.
Exactly how does this violate DMCA (Score:4, Insightful)
Re:Well what did you expect? (Score:5, Insightful)
I can tell you why NOA cares about this (Score:5, Insightful)
Emulators are not too much of a threat to a console. The games simply suck badly when played on a Keyboard, and PC controllers just dont feel right. But this allows you to play these games on a GBA. This is a direct threat to what is currently Nintendo's most consistent source of income. So of course they will go after it and try to kill it.
END COMMUNICATION
Going after the little guy. (Score:3, Insightful)
Here is the DNS for the manufacturers web site
Visoly
Henry Lo
Shop 64, G/F, 148 - 152 Fuk Wah Street, Shum Shui Po
Hong Kong, Kowloon -
HK
Phone: +852 23785236
Fax..: +852 23785237
Email: webmaster@visoly.com
I presume its harder to go after the HK connection, so shut down any US marketing and distribution for the product first. A cheap form lawyers letter might get you some results
I would suggest the recipient gets some quick PROPER legal advice first - THEN decides on his response
Re:How does the flash advance work? (Score:3, Insightful)
I'm sure glad there are more than ten pins, or else we'd all have to get our fingers chopped off as anticircumvention devices.
Nintendio has a good case. (Score:3, Insightful)
http://www.visoly.com/
This is the developer's site of the product in question, and right on the same page it links to a page on various Nintendo Emulators. Anything that could have implied "developer's tool" flew out the window just by having that link there. It'll be really tough for them to prove it's not a device intended for piracy.
There *is* a legal product out there for uninitiated developers out there. Check out this page:
http://www.mp3games.net/demo.htm
Basically, this is a product you can buy at Software Etc that allows you to write programs for the GBA and download them into a little cartridge. This device claims it won't play 'copyrighted games'. Once you write apps for the GBA, you can trade them on the net etc. To the best of my knowledge, it's still for sale. I don't think Nintendo is fighting this one because it's clearly a developer's device.
I'm against the DMCA, I think it's poorly executed. I've been very vocal about that here. But this is a case where I think Nintendo is in the right. If this product did have legit uses, it was VERY BONEHEADED to link to an emulator's site on the product page. I'm with Nintendo on this one.
Comment removed (Score:5, Insightful)
The future of free culture is at stake. (Score:3, Insightful)
And, in fact, that is indeed invariably their primary use. Artists/writers/programmers are always going to be a minority.
These things are increasingly being legislated and prosecuted accordingly. Independent content/media/software creators are going to get very screwed, and our cultural development will be ceded entirely to corporations.
While this might not be the primary intended effect, I'm sure the aforementioned conglomerates don't really mind it as a side-effect.
The only defense I can see is to create a body of "libre" independent content that most people will actually care about, so there would be some outcry when it was threatened. "mainline" indy media is unfortunately too esoteric most of the time.
That would, however, most likely require a source of patronage outside the media conglomerates. I don't see e.g. an animated feature being assembled in the same way as the Linux kernel.
Re:Some questions (Score:3, Insightful)
Customs officers have a shitty job. They are overworked, underpaid, and they know that any obvious contraband they do stop is only the tip of the iceberg. Luckily for them, they have the authority to cavity search Jesus Christ Himself if they feel like it, and the - de facto - power to seize anything they like and hold it to ransom. This seizure is extra-legal and extra-consitutional, but luckily they live in a gray zone outside of the normal bounds of time and space. Er, law, I mean. Specifically, the goods aren't in the country until they pass customs, so the our feeble human laws do not yet apply to them.
I dunno, how much of it (the DMCA) did they pay for?
Seriously, it's a good question. The DMCA bans import of contravening devices, but that's post facto now, and beyond the (spurious) jurisdiction of the demigods at customs. It also bans the sale or trafficking in the devices. But it doesn't provide a mechanism for seizing them. The current owner can keep them, and curiously enough, can even use them. He just can't give them to anyone else, nor tell anyone how to make one or where to get one. But that's for a court to decide now, not customs, and not Nintendo.
Sigh, time to dig out the addresses of my elected representatives again. Anyone else get the feeling that SSSCA was just a smokescreen to protect the DMCA? Like it turned the debate into "how much further should we go?" when it should be "have we gone too far already?".
Re:you know... (Score:1, Insightful)
Re:Well what did you expect? (Score:5, Insightful)
in reply to the letter from NOA (Score:2, Insightful)
There's this game that lawyers play called "See What We Can Get Out of Them". This letter is the first round of this game. During this round, lawyer does a very small amount of data collection to see if there's a posssibility of a lawsuit. Lawyer then sends nasty sounding letter to the evil person supposedly violating whatever laws demanding as many outlandish things as possible.
This first round makes receiver of letter feel uncomfortable, and most law-abiding citizens feel obligated to cough up their gonads right then and there for fear of being prosecuted/embroiled in controversy. This part is psychological and more for shock effect and seeing what Lawyer can get out of you.
I work with a lawyer on a daily basis. Said lawyer does this kind of crap just for fun to see how much said lawyer can get away with. People will do anything not to be sued, etc. and it seems that lawyers just like to watch people squirm.
I do believe that NOA has no right to ask you for the merchandise without a judgement of some kind. Quoting the DMCA is great and all, but there hasn't been litigation of any kind and they can't make up terms for your innocence/guilt. You haven't been charged with anything, this isn't a case that's gone to court yet.
Good luck.
Re:you know... (Score:2, Insightful)
I'm not flaming or trolling here. Who's going to think of geeks as an interest group if every member of that group has a different opinion about the topic at hand?
Re:DMCA section 1201(b) (Score:4, Insightful)
> copyright owner under this title in a work or a portion thereof;
Mmm... if you circumvented it, how does it "effectively protect" anything?
I've violated some law, and hang my head in shame. (Score:1, Insightful)
Fifteen years ago I found out how to jumper RAM chips (not SIMMS, but chips) onto the existing ones on my Atari ST motherboard. I thought I was being ingenious and saving a buck. I was wrong. I was a felon.
Ten years ago I purchased a DOS Compatibility card for an Apple Performa with a PDS slot. I only had a Quadra, which didn't accept the card. I pulled the card apart, lengthened the slot cover, and installed it and the rigged software into my Q650. I thought I was being clever. I was wrong. I was a felon.
One of my computers once had an easily replaceable oscillator. I found out from a newsgroup that I could buy a part from Radio Shack and solder it to the old chip and increase the speed of my machine. I discovered a world of electronics that I never knew existed. Thus my descent into lawlessness. I thought that I was learning. I was wrong. I was a felon.
I purchased an ISA Zoran based television card for my PC from a refurb equipment seller. Under Windows ME it would crash. I resurrected it under a Linux PC. I thought I was helping the environment by not adding to the landfills. I was wrong. I was a felon.
I've watched DVDs under Linux, copied my LP and CD music collection to MP3s, installed illegal operating systems to a Dreamcast, used nmap...
Yesterday I used a hammer to chip away the concrete around a drainpipe instead of its intended usage on nails. I am not proud.
Re:SamMicheals, what will you do? (Score:5, Insightful)
he's just going to ignore them for now.
He should not do this, this will only make the courts mad, because he is spitting in the face of the law. Instead, he should get a Lawyer to write a nice polite letter stating first, Nintendo has no right to demand nor confiscate the devices, only the Federal government can do so with the proper court order. Second, the devices are legal because they have at least one legal use, ie making legal backup copies of games, which is allowed under "Fair Use". The DMCA does not specificaly eliminate "Fair Use" (I could be wrong, maybe, it does specificaly eliminate "Fair Use"). This also provides Researchers a method of discovering new uses for the product, because new uses may have a greater benifit. Because this has not happened yet does not mean it is not possible, attempting to enforce the DMCA in this manner stifles creativity and inovation. Recently the RIAA has backed down from a similar case stating it was not the intent of the RIAA nor the DMCA to suppress research nor stifle inovation. The Research part of this maybe a stretch, but a good Lawyer could make it work.
Made for theft. (Score:2, Insightful)
They're for use in Piracy, pure and simple - and in the end, Nintendo have the legal right to be paid for their intellectual property, like it or not.
You can try to look around this point all you like but in then end you've got to admit that. It's very convenient to try to look at this with rose-tinted glasses, I bet when most people are saying is "great, no more free gameboy games".
It's just a shame that a sensible legal test can't exist for this, rather than the DMCA.
Re:DMCA or not (Score:1, Insightful)
Re:So wait... (Score:2, Insightful)
I was thinking of buying one (Score:2, Insightful)
1. I'm not a big company so I'm not able to get an SDK kit from Nintendo
2. I couldn't afford it if I was able to
3. I don't want to make games for the hardware. Just as a hobby. At most for people to download and play... you know.. to give them something to do with the emulator besides illegal roms.
And by working with you they mean... (Score:2, Insightful)
Re:DMCA section 1201(b) (Score:3, Insightful)
That's impossible. "You're not allowed to make a game that runs on our hardware?" WTF? It's not THEIR hardware. When you buy it, it's YOUR hardware, and you can do whatever you damn well please with it. If you want to make a game, there's not a damn thing they can do about it.
Now, mass producing and selling your game in a store, there might be something there. Perhaps they have a copyright on the cartridge design, or something like that. But making your own game for your own use, I don't see how they can prevent you from doing that...
Re:Well what did you expect? (Score:3, Insightful)
NO, it wouldn't be! The grinder would be SEIZED from the felon for using it illegally, but the grinder itself would NOT be illegal! In other words, we would not say, "You're using it for an illegal purpose. All grinders are now illegal. Round up any merchants selling grinders, seize their property and throw them in jail."
That's effectively what's happening here...
Re:Want to arrest me for rape? (Score:1, Insightful)
You have no idea (Score:5, Insightful)
Re:Description (Score:4, Insightful)
And besides, how are EULAs for GBAs and GBA games valid anyway? On a computer program, you at least have to click a button that says "Agree". There is nothing I signed or agreed to when I bought and used my GBA or my games, so no contract should apply, just the standard copyright laws.
Counter to Intent of Copyright Law (Score:3, Insightful)