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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?"
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NOA to Sue for Flash Advance Linkers

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  • So wait... (Score:4, Interesting)

    by Tebriel ( 192168 ) on Wednesday February 20, 2002 @12:32PM (#3038306)
    You've got some stock that I assume you legally obtained and post-facto, they want to have the stock turned over to THEM? Shouldn't it be given to customs at least?

    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)

    by interiot ( 50685 ) on Wednesday February 20, 2002 @12:38PM (#3038357) Homepage
    ... First, they're not cheap. The drive sells for between $122 and $144. The cartridges are around $100 dollars each, but one 64Mbit Flash cartridge comes with the Flash Linker. Second, the Flash Advance Linker allows you to make legal, although dubiously legal, backup copies of GBA games, so if you buy one, you're slipping into that gray area of copyright protection. Buy at your own risk. ...
  • by BlueboyX ( 322884 ) on Wednesday February 20, 2002 @12:41PM (#3038390)
    Well, there were two gameboy advance competitions. One was on www.gbadev.org - go take a look.Obviously quite a few people are using these for purposes other than pirating.
  • by nanojath ( 265940 ) on Wednesday February 20, 2002 @12:44PM (#3038416) Homepage Journal
    Only one way to deal with that and that is take a case to court and win, or for Congress to repeal the legislation (and that ain't gonna happen - your congresspeople could give a relative rat's ass about your letters compared to the fat checks they get from big businesses). Try voting for someone who isn't in the pockets of major corporations next election (hint - not a democrat or republican).


    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.

  • by sandman935 ( 228586 ) on Wednesday February 20, 2002 @12:44PM (#3038421) Homepage

    Where does the law allow Nintendo to make this demand? "...turn over your remaining stock to Nintendo."

  • Re:So wait... (Score:5, Interesting)

    by syzxys ( 557810 ) on Wednesday February 20, 2002 @12:46PM (#3038439)

    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)

    by MindStalker ( 22827 ) <mindstalker@[ ]il.com ['gma' in gap]> on Wednesday February 20, 2002 @12:47PM (#3038447) Journal
    The DMCA refers to the breaking of encryption, I don't believe it has any revelance on a device that helps you copy non encrypted data?
  • by Xentax ( 201517 ) on Wednesday February 20, 2002 @12:48PM (#3038449)
    As far as I can tell, this is a good candidate for an interesting trial:

    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)

    by pacc ( 163090 ) on Wednesday February 20, 2002 @12:51PM (#3038482) Homepage
    Not really, cf isn't nearly fast enough.
    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...
  • by cballowe ( 318307 ) on Wednesday February 20, 2002 @12:56PM (#3038516) Homepage

    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.

    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
  • by eclectric ( 528520 ) <bounce@junk.abels.us> on Wednesday February 20, 2002 @12:59PM (#3038538)
    Mainly, that it *takes away* the previously established right to make a single copy for backup purposes. It clearly states that circumventing copy protection is grounds to be in violation of the DMCA. And don't blather on about constitutionality... the right to make a single backup for archive purposes is only spelled out in the 1971 Copyright Act.

    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)

    by Sloppy ( 14984 ) on Wednesday February 20, 2002 @01:02PM (#3038570) Homepage Journal

    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.

    ...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 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)

    by EllisDees ( 268037 ) on Wednesday February 20, 2002 @01:03PM (#3038574)
    Incorrect, DMCA refers to circumventing a protective device

    Ok, so what 'protective device' is there on a gameboy that is supposedly being circumvented?
  • by Apreche ( 239272 ) on Wednesday February 20, 2002 @01:03PM (#3038577) Homepage Journal
    The only copy protection that a GBA has is it's proprietary cartridge format. There really isn't any copy protection besides the fact that the only device available on the market that works with these cartridges is a GBA, until now.
    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.
  • by nanojath ( 265940 ) on Wednesday February 20, 2002 @01:06PM (#3038601) Homepage Journal
    A few relevant resources -


    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.pd f


    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?

  • by rapid prototype ( 551089 ) on Wednesday February 20, 2002 @01:08PM (#3038624) Homepage
    if you sold soldering irons along with printed manuals describing how to do it, then yes, you would be violating the DMCA. you still can do anything you want to the things you buy, even soldering EEPROMs to GBA cartidges, you just can't tell anyone ELSE how to do it. because that information is a circumvention "device", and you would have just distributed it.

    -rp
  • by Rogerborg ( 306625 ) on Wednesday February 20, 2002 @01:22PM (#3038747) Homepage
    • every time I boot, I'm reading copyrighted Microsoft (sorry, but it's true) material into my system's memory, goddamit

    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.

    • Do you really believe the Sony/Nintendo/RIAA theory that anything that could possibly be used in an illegal manner should itself be illegal

    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.

  • by arkanes ( 521690 ) <arkanes@NoSPam.gmail.com> on Wednesday February 20, 2002 @01:28PM (#3038780) Homepage
    *bzzzt* copyright doesn't protect the design of the cartridge, only the content. The claim, I suppose, will be that the form factor of the cartridge is sufficent "access control" under the DMCA, but whether or not it's a "standard" has no bearing whatsoever.
  • by morningdave ( 259151 ) on Wednesday February 20, 2002 @03:12PM (#3039407)
    ...when you combine this with the description of Visoly's other Flash Advance products. It sure sounds from the visoly site's description of those products [visoly.com] that they are marketing them for copying first, and developing second. The first paragraph of the Flash Advance description states: "Once you have sent games, demos or programs to it's memory using the Flash Advance Linker, it can simply be plugged into the Gameboy Advance and it will act like an original game -- there is 100% not any difference!" Not until the fourth paragraph do they chime in with: "The Flash Advance 64M is furthermore the perfect choice for any professional Gameboy Advance developers or even home developers" I know this doesn't invalidate the legitimate uses of the Linker, but it can't help their cause to have language in their other products' descriptions that seems to advocate piracy using the Linker.
  • by Geek In Training ( 12075 ) <.moc.liamtoh. .ta. .893bc.> on Wednesday February 20, 2002 @03:17PM (#3039431) Homepage
    Does this mean my soldering iron is in violation of the DMCA?

    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.

  • by studerby ( 160802 ) on Wednesday February 20, 2002 @04:55PM (#3039825)
    "computer program" is defined in the copyright law [loc.gov] as:
    A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

    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...
  • by B.D.Mills ( 18626 ) on Wednesday February 20, 2002 @08:41PM (#3041201)
    Nintendo demands that you immediately ... turn over your remaining stock to Nintendo.

    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 ... be deprived of life, liberty, or property, without due process of law ...

    -- Fifth amemdment, US constitution
  • Free software (Score:3, Interesting)

    by yerricde ( 125198 ) on Thursday February 21, 2002 @12:34AM (#3042382) Homepage Journal

    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.

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