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?"
So wait... (Score:4, Interesting)
And did these units come through customs in the first place? If so, why weren't they held up then????
Re:Description (Score:3, Interesting)
proof of legitimate use (Score:3, Interesting)
Re:why is the DMCA still around (Score:2, Interesting)
Of course, the industry is well aware of the weaknesses of the DMCA and will try hard to avboid a weak case going to court. That's why they dropped their beef with Felten/Princeton over digital audio watermarking, for example. Whenever they encounter credible resistance they will back off. Eventually it's going to have to go to court, though.
Re:FYI: The whole letter.... (Score:2, Interesting)
Where does the law allow Nintendo to make this demand? "...turn over your remaining stock to Nintendo."
Re:So wait... (Score:5, Interesting)
How is the parent post flamebait?
You're right, he shouldn't have to turn the stock over to Nintendo. What the heck do they have to do with it? Are they some kind of governmental body or NGO? I mean, *he bought and paid for the units.*
Originally, there was precedent for banks seizing property if you didn't pay them, because, let's face it, you owed them money. This was similar to your neighbor coming and beating you up because you borrowed his club and didn't give it back. There was also precedent for governmental agencies (e.g. tax collectors) seizing property, for much the same reason.
Then, in the 1800's, the US got into "eminent domain." Basically, this means if the state doesn't agree with how you're using some land/property, they can seize it. But note, now for the first time it wasn't "theirs anyway," they're just flat out taking it.
...take a little step through seizing illegal drugs, etc...
and we wind up in the state we have nowadays, where college dorm rooms are routinely raided for computers. I mean, these are people in *college* for crying out loud! Can they really afford to replace their computers? If the FBI wants to take the warez ("illegal materials") or mp3's, shouldn't they just take the hard drives, give the seizee (I think I just invented a new word) a new equivalent capacity or value hard drive, and *oh* -- make sure to give them a copy of the OS too, since you wouldn't want them pirating Windows, which they will obviously do since you just gave them a new, blank hard drive [bsa.org], and that's how we count pirates! Oh, I forgot, it's the secret po^W^WFBI, and you're a Suspected Criminal, so that means all your base are belong to us! Welcome to the land of the free, biotch!
So obviously, IMO, having *anyone* seizing property because of an *alleged* violation of the DMCA is just way over the top.
---
Windows 2000/XP stable? safe? secure? 5 lines of simple C code say otherwise! [zappadoodle.com]
Re:you know... (Score:3, Interesting)
It'd be nice to see this one go to trial. (Score:4, Interesting)
1) It CAN be used to copy games illegally. I don't think anyone will disagree.
2) It CAN be used to _legally_ copy games, or save data. Nintendo might try to disagree with this being legal, but I don't think they can convince anyone of that in a courtroom.
So, it has both uses that are legal, and those that infringe on copyright.
It's been awhile since I read the DMCA, so I'm not sure which particular provision selling this device is supposed to be violating. I'm guessing it's the sale/distribution of a copy-protection-circumvention device.
The hardware angle would be silly, so it must be that they claim copying their ROMs is the violation. Are GBA ROMs encrypted, or otherwise proof from copying beyond their storage on a chip in a funky plastic case?
Bottom line, I think these people could mount a fairly strong challenge to at least the lawsuit, and possibly take the route of the DMCA being unconstitutional: It's being used to make a _fair use_ under copyright -- space/time shifting of user data -- illegal.
Xentax
Re:Do what? (Score:2, Interesting)
My unit has 256 Mbit (which is only 32 MB)
and costs almost as much as a 256 MB compact flash.
Unfortunately the only thing to justify buying one would be comparing the price with the price of the games. However, Nintendo could easily cut out the market if they were to release a $5 cable to make kids download single-level demos of the games they could buy - the GBA don't need any flash cartridge to do that...
Can customs make that judgement? (Score:3, Interesting)
I didn't know that US Customs was a body capable of ruling on whether a product violates the DMCA. Once something is determined to violate the DMCA, it would make sense that they could confiscate it but they are an enforcement organization.
From all descriptions I've read (not that many) the primary purpose of this device is to copy GBA roms to catridges that can be played on the GBA. All marketing I can find markets it as a development tool. I don't see how it meets the ``primarily designed for...'' requirements.
Then again, IANAL
you guys are forgetting the point fo the DMCA (Score:3, Interesting)
Granted, I don't agree with the DMCA, but this device is *very clearly* a violation of it. It's not that it's *used* to make copies of protected material, but that it's *designed* to make copies of protected materials.
Errors (Score:3, Interesting)
Their letter doesn't explain what "technological measure" your product circumvents. After reading a description of the product, I am sceptical that there is any technological measure at all, so this doesn't look like a violation of 1201(b). At the end of the letter, they ask you to contact them if you have questions. It might be useful to get their clarification on what "technological measure" has been circumvented.
They also use the word "infringe" which implies that in addition to a DMCA violation, there is also a copyright infringement. But the letter doesn't explain. It sounds like Nintendo lawyers are making things up as they go along.
This isn't US Customs' job. If US Customs is spending my tax money hiring lawyers to research things on behalf of private corporations such as Nintendo, then I want my tax money back.
Re:you know... (Score:3, Interesting)
Ok, so what 'protective device' is there on a gameboy that is supposedly being circumvented?
Re:And the DMCA apply's how? (Score:3, Interesting)
Just like the GameCube, there is no chip in a GameCube that prevents you from using burned discs, because nobody has the ability to read, or write those little DVDs. You can play Japanese Gamecube Games in US Gamecubes and vice versa, the same goes for all Gameboys. Australian Gameboys for some reason do not play foreign games.
There really is no copy protection, so I don't think the DMCA applies. However I DO think that another law concerning the fact that Nintendo has a patent/copyright on the GBA cartridge format might make another law applicable.
Re:FYI: The whole letter.... (Score:4, Interesting)
http://www.hrrc.org/html/DMCA-leg-hist.html
DMCA history website.
http://www.loc.gov/copyright/
US Copyright office.
http://www.loc.gov/copyright/legislation/dmca.p
DMCA summary & analysis
Section 1201 of the DMCA is basically the anticircumvention stuff. It makes a distinction between devices that allow illegal access to copyrighted material and devices that make illegal copies of copyrighted material. The legal question here is, is this doodad a circumvention device? Does it illegally circumvent some encryption of the ROM data on the GBA cart? If not then it's an issue of, is this a fair use case of copying?
Re:Gameboy Programming (Score:2, Interesting)
-rp
Re:Well what did you expect? (Score:3, Interesting)
There's a specific exemption in the DMCA for transient memory copies necessary to produce functionality. It's not pertinent to the case in hand, I just thought I'd mention it.
Unfortunately, in this case Nintendo are just following the law as written (apart from trying to sieze the goods). They actually have a duty to their shareholders to do this. The problem is with the dumb law and the corrupt politicians that passed it, not the predatory people using it to their advantage, or the businesses who bought those politicians.
Let's stay focussed on the issue, which is to tell (not ask, tell) our elected representatives to repeal the law. The courts are a gamble, the predactory companies are a certainty. Fix the cause, not the symptoms.
Re:There's only one flaw... (Score:3, Interesting)
It seems to get a little sketchy... (Score:2, Interesting)
Re:Gameboy Programming (Score:3, Interesting)
How many DMCA articles have we seen here on slashdot... 50? (Search shows 30 since November.)
The bottom line seems to be: Yes, your soldering iron absolutely is in violation of the DMCA, ESPECIALLY if you use it anywhere near something that a corporation sold you or owns copyrights on.
In fact, I'll bet you that any corporate lawyer worth his salt could use the DMCA to make ANY product, service, or thought process illegal under the DMCA, if he worded it right.
Don't like it? Send money to the EFF. (eff.org)
That's what I did. Of course, I can't contribute anything next to giant corporate lobbying entities, but it's a start.
Re:Want to arrest me for rape? (Score:3, Interesting)
They don't define "computer" in the law though. Since a game console is a computer in fact, you'd have a pretty good shot at convincing a judge...
Re:FYI: The whole letter.... (Score:3, Interesting)
IANAL, but this is obviously an illegal demand:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...
-- Fourth amemdment, US constitution
No person shall
-- Fifth amemdment, US constitution
Free software (Score:3, Interesting)
Distributing copies of the game is clearly copyright infringement.
Not if the game has been released as free software (or even free as in beer). Nintendo's titles aren't free, but mine are [pineight.com]. I put my proofs of concept and short utilities under the Expat license [jclark.com] and my full games under the GNU GPL [gnu.org]. It's only copyright infringement to redistribute binaries of GPL'd software if you neglect make an offer to distribute machine-readable source code at cost.
Developing and using free software constitutes a substantial non-infringing use of the Visoly [visoly.com] Flash Advance Pro cartridges.