Nintendo loses major anti-piracy lawsuit in France

Company vows to appeal 'not guilty' judgment favoring France-based flash cartridge distributor

Nintendo, as you know, wants to make third-party flash cartridges anathema to its DS game handhelds. Some gamers want the right to use these cards, they say, to develop legal "homebrew" games. In reality, a majority of these flash cartridge owners design nothing whatsoever, and instead traffic in illegal software, downloading copies of DS games from torrent sites and using latchkey ploys to bypass Nintendo's inbuilt anti-piracy strictures.

The debate over who's right or wrong comes down to principles and practicalities. In principle, homebrew designers would seem to have the high ground under the "open development" precept: What's different, they'll argue, between a pocket-sized computer, and one that sits under your desk? In practice, of course, Nintendo can point to mind-boggling piracy numbers to make the argument that a preponderance of flash-cartridge owners are simply using the things to brute-force pirate stuff.

Scan the most popular pirate sites and comments like the following are ubiquitous:

"Works fine on Acekard 2," reads one, in reference to a pirate copy of Legend of Zelda: Spirit Tracks, a game released just days ago.

"Very goooood news for R4 (ultra) users," reads another, referring to a pirated version of the popular Mario and Luigi: Bowser's Inside Story. "Download new firmvare [sic] at [deleted] and play this game."

"Just use the NO$GBA emulator on both DS,COLOR and GBA games," says a third commenter, referring to a collection of Pokemon ROMs, adding that "in-game save works and it is awesome."

Is it any surprise that world courts favour the "practical" assessment?

In June 2003, Nintendo won a major anti-piracy case against a Hong Kong company that distributed something known as a "flash linker," a device which allowed users to backup Game Boy games to Windows PCs. With the device, buyers could transfer games from a Game Boy cartridge to their computer, then copy them back to a blank flash RAM cartridge for use in another Game Boy system. In theory, the flash carts allowed amateur designers to create their own games for the system. In practice, according to Nintendo anyway, it resulted in around $650 million of lost sales due to piracy.

In February 2009, the Tokyo District Court granted an injunction filed by Nintendo in July 2008 to "stop the distribution of game copying devices" by "multiple parties" who'd been importing and/or selling a popular flash-based devices called the R4.

In March 2009, an Italian court stated "even in appeal" that "mod chips and game copiers" -- in this case, flash-based devices for both the Wii and Nintendo DS -- are "per se forbidden by law" because they bypass the copy-protection mechanics embedded in Nintendo's systems.

The latest twist: Last week, Nintendo actually lost a major civil lawsuit against a French company, the Divineo Group, for manufacturing flash cartridges usable on the DS. The suit made it to France's highest court, where a judge ruled Nintendo was actually wrong in attempting to deny flash cartridges from being used with its handhelds. Twisting the knife -- and hewing to the "in principle" vantage -- the judge added that Nintendo's handhelds ought to "work more like Windows" in supporting independent development.

Don't hold your breath waiting for the rest of the world to follow suit. According to Nintendo's anti-piracy site, the company's been involved in "over 600 actions (including customs seizures, law enforcement actions, initiating civil proceedings, etc.) in 16 countries, confiscating over a half million DS game copiers."

Were I Nintendo, I'd nip the whole 'design' argument in the bud by extending a friendly hand to wannabe-developers along the lines of what Microsoft's put together with its XNA game development initiative. Create an open, flexible, affordable path to indie/homebrew on the DS or Wii, and a mechanism for redistributing the really quality stuff. Currently, you have to jump through all kinds of hoops just to get accepted, and fork over between $2,000 and $10,000 for a dev kit.

$45-$50 for a flash card, or two to 10-large in development kit costs? If I wanted to try my hand at amateur game design, I know which I'd pick.

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Matt Peckham

PC World (US online)
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