Nintendo loses DS flash cart case in French court
By Joshua Topolsky 
posted December 4th 2009 10:47AM
posted December 4th 2009 10:47AM
According to a post on Maxconsole, a court in Paris has just dismissed a lawsuit filed by Nintendo over the use of flash carts on the DS. Apparently, the gamemaker was attempting to halt the use of the cartridges due to their ability to circumvent copy protection and allow for pirating of software, but a judge in France took a decidedly different view. As the carts are often used for homebrew and DIY projects, the court holds that owners of the console should be able to develop software much as a license holder of Windows might. Furthermore, the article claims that the court also deemed Nintendo's strict control of development "illegal" (Maxconsole's words), and said that development of software for the system shouldn't be hamstrung by the need for proprietary kits. This ruling follows a recent Spanish case in which the court dismissed Nintendo's lawsuit over flash carts claiming that while the add-ons do violate DRM, they also legitimately extend the functionality of the console.
W00T!!!!
@Eternity
WOOT INDEED!
I have a flashcart that I use to use and while there is homebrew, it is pretty universally awful. I suspect you could count on one hand, or perhaps finger, the number of flashcart owners who exclusively use homebrew (as opposed to ripped games). Any who do are pretty starved for entertainment. The emulators are the closest thing to full fledged software and even those are pretty piss poor, not to mention that the legality of most ROMs used with them is highly questionable as well. Again you could probably count on one hand or finger the number of people who use any of those emulators exclusively with ROMs they've ripped and have possession of.
@(Unverified) Doesn't change the fact that it is used for homebrew, or that the function is not only for piracy. That's like deeming knives as illegal weapons because the times people use their sharpest knives can probably be counted on one hand for a long period of time. Still has a valid use, it's still justified.
@(Unverified) You like counting on your hands, don't you? But agreed, most people use them for illegal purposes. But it comes down to making something illegal because it *can* be used for illegal activities. Should we also outlaw DVD and CD burners?
@(Unverified)
Nintendo's stance on the cartridges has stifled development. People that do make games for free, tend to want those games to be played.
The ramifications of this are huge. In one fell swoop, this judge creted a precedant that dev kits should not be necessary for development and that in almost every instance, if a product extends the functionality of another product in a way that isn't illegal, they don't need licensing (read the Datatel MU's for the 360).
@Rask it's getting to a point where selling technology in Europe is just going to become so unprofitable, its not going to be worth it. I won't be surprised that if in the near future you see a EU boycott from software/game/console developers, they are just getting ridiculous over there.
@Rask This is a civil law system: judges don't make binding precedents. Future courts are not obliged to follow this decision, though they may be persuaded by it.
@(Unverified) "selling technology in Europe is just going to become so unprofitable"
You must have missed the flames about the fact that lots of technology arrives first to Europe because average prices are higher here and thus are profit margins are thicker.
Pretty much all consoles enjoy popularity in Europe and R4/clones had made little to no impact on DS/games sales here.
P.S. The very same wrong argument was made when iTunes Music Store launched: who would pay $1 for a song when you can get it for free off the net? Piracy is only a reflection of the fact that a company has unsatisfied customers.
@(Unverified)
True, so is not buying the product. Piracy is also greed when you don't want to pay the cost.
@Rask
Awesome isn't it :D
@(Unverified)
"R4/clones had made little to no impact on DS/games sales here."
LOL, as if that's quantifiable. and if it is, the RIAA would like to have a word.
now if we could only get one of those judges here in the states...
@Chuuchdizzle
Yeah to bring back mininova, then send them off to Sweden for the piratebay
@Chuuchdizzle
++
@Chuuchdizzle and in the UK....Stupid government wanting to disconnect peoples internets! Damn them!
WOW! I am shocked.
WTF? Where were the courts 25 years ago when Nintendo was strong arming developers with the NES?
Wait? So they are saying charging/keeping a lockdown on SDKs is illegal? While making flashcarts illegal might be a step to far, but saying that Nintendo can't control the development of software is stupid. SDK and technology licensing is one of the only ways Console makers make money. Homebrew my a**, they should have to pay for the SDK just like everyone else does, and the amount of people that acutally homebrew is so small, its a null argument. If you really want to program for platform, you should be supporting it financially. I swear everyone thinks that companies should just be giving software away, people need to eat, shareholders want there stocks to go up, how do you think your retirement funds get paid for?
@(Unverified) It certainly isn't paid out of the 20 mil my CEO made last year.
So i guess there's a chance I won't be stuck with the 1.3 firmware forever on my Japanese DSi? Hmm... Realistically, no... Although, it isn't like I wanted to upload those grainy photos to Facebook anyway though ;b
Allons enfants de la Patrie,
Le jour de gloire est arrivé !
Contre nous de la tyrannie,
L'étendard sanglant est levé,
Entendez-vous dans les campagnes
Mugir ces féroces soldats ?
Ils viennent jusque dans vos bras
Égorger vos fils, vos compagnes !
That's what she said...
@barbsN
Je pense qu'on peux laisser faire La Marseillaise ! Et le "God Save The Queen" tant qu'à faire !
...I like this ruling! Now lets to the same with the Wii, XBOX and PS3 and we'll be all on our way "Homebrewing"....things... :)
@Maschkenator or you can get a job and support the dev's that make games you like.
@(Unverified) Getting a little off topic...but I hope sony creates an equilibrium to counter removing OtherOS such as a subsystem linux kernel that is tied into the XMB.
I believe this may be their plan, especially after the most recent update to the psp adding the "Addons" menu to the XMB along with the Comics App.
Its true that its "the comic app" still signed, but I have a feeling that they have something planned. Especially after the outcry when the slim was released, they don't want to take any chances.
I wonder how Apple won its cases, they probably bought the judges.
Great news for all DS homebrewers and DS flash cart makers.
@Markos. iTunes case was different. Or rather music is treated differently in France compared to the rest of Europe.
it makes me sick that half the people that are happy about this are happy because it will be easier to pirate software. If you enjoy a game, support the people that make it. PAY FOR IT.
@(Unverified) It's true, but consumers still have rights and those rights are getting more and more trampled by DRM. It's nice to see someone taking the consumers' side.. even if just this once.
@(Unverified) I agree, but I stile cannot understand the arrgoance that people have to have the self-entitlement to think they deserve others hard work for free.
It's manifest destiny for video games.
@(Unverified) It's a poor consolation, I know, but here is goes anyway: all games I play on my R4 I own. Precisely because I want to keep the genres and games I like alive.
Similar to my case of PC gaming: I rarely play official version because most of them require keeping install CD in a noisy drive.
That's why better half of my game shelf at home is filled with unpacked boxes.
WINRAR!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
SHOCKER! I can't believe Nintendo with all of their lawyers actually lost a case that has to do with flash carts... WOW.
Nice to hear right before xmas, so you know which company's product to pass by if you like some freedom.
@sweet greggo What is illegal, at least here in Europe, is to try to prevent DS owners of doing whatever they want with their console. It's like you're forbidden to improve the performance of your car. I don't like it, but I don't think it should be made illegal by car manufacturers just for the sake that they could be used for street racing. The same goes here for flash cards IMO.
@Johanu
Um, last I checked car manufactures didn't sell games or needed their cars to run software off of a cart that you bought to serve their intended purpose.
Telling someone that they cannot modify a product they own is not the issue here. I agree that a person should not be limited to how they can use something they buy, but the issue her is nintendo desend want 3rd parties to sell devices that undermine their own ability to sell you the games that make their systems run.
A car doesn't need, well lets say gas/petrol, in a officially licensed form sold only if produced by a licensed producer ( well gas does have to meet standards and is made by licensed producers but it isn't "BMW" brand gas that only works on "BMW" cars or some such thing) were as Nintendo makes a product with the intent to license you the use of games on it and game publishers pay nintendo for the right to license a SDK so as to make games to sell to you and you can either buy them or not.
Buying or not buying a game doesn't limit your rights in anyway but demanding that you should be able to have access to tools that nintendo would normally charge for as part of how it does business with paying nintendo damages it's ability to do business.
I might not want any limits on what or how I use the internet but i don't expect that if I want to develop web pages or run apps on it that it wont cost me money to make.
Nintendo deon't say you cannot mod it's device if you buy it or use it how you like, it is saying it dosen't want a 3rd party to be able to make it so it cannot do business.
this is along the lines of why AMD sued Intel, because AMD felt that Intel ( a 3rd party to AMD and the consumer) was limiting it's ability to do business.
You don't want to be limited but neither does the company that sells the product in the first place. the judge could have ruled that Nintendo make means avalible for people who do want to make "homebrew" apps available like how mobile handset makers have to allow for unlocked phones but the judge didn't because Nintendo already does sell a SDK and gives the ability to make software for it's platform, it just happens to not be favored by cheap/broke people or counterfeiters. so the judge decided what nintendo offers is somehow a kin to being illegal
I hope you can see a distinction
@mrgabrielserna That model of business is their model of business, not even remotely binded by any law, at least that I know of. What happens is that you are used to the existence of this kind of way of making money.
If BMW started selling you their gas and forbidden you from buying gas anywhere else if your purpose is working with your car, you wouldn't understand it. Because it's not what you are used to. Even worse is if they wanted you to buy their gas for recreational purposes, you would be pissed, they just sell you the damn car, they shouldn't be dictating what you put in it.
I'd prefer to be charged an extra for a console one time than being charged an extra every time I buy a game. Or do you think it's the developers who pay the price for SDKs and licensing? It comes back to you in the price you pay for the games.
Anyway, I honestly think that if Nintendo, or Sony or Microsoft charged developers nothing to be able to make games, maybe they'd have A LOT more consoles sold, and there would be more developers and a lot more cheaper games.
Just my two cents.
So, can they rule that *all* gaming companies' SDK/devkit equipment practices are illegal?
I've wanted to go into developing Nintendo games for quite some time - and to do so, means I have to apply - as a company - to their development division (WarioWorld), and I must have a metric crapton of other products and software developed on other platforms for them to even think of allowing me to apply.
Same with Sony. Microsoft is somewhat the same - but with XNA, they're in the clear (although they should sell some of those snappy devkits to consumers instead of eBay sellers). Sony DID have Net Yaroze, but that was very rare, limited, a touch pricey, and well, it's a Playstation 1.
And marketing homebrew doesn't exactly work - what am I to do, sell a digital download you have to find a way of running on your console? Sell you the modchip with the burnt DVD?
@missingNo you could make a business plan and pitch it to banks to get a loan or to VC's for funding or even to family for money to establish a business around what you want to do.
No one is making you develop "homebrew" on a DS for a living.
Heck, I'd like to be able get a job that pays good money to me for designing things i enjoy but companys left and right are telling me I fist have to have all this money and time invested in projects like studying and earing a degree before they will even talk to me and these other business ( lets call them schools) tell me that the projects the first set of companies I talked to require cost quite a bit of money. What am I to do?
( a bit sarcastic I admit and apologize if I offend, I only desire to show how that point of view can be applied differently but now no longer seem to make as much sense.)
@missingNo Sony lets you develop for PS3 without a dev kit
I'm of two minds on this matter. First off I do realize that the courts in France probably aren't as closely knit with big media/entertainment internists as in the states but to think that a judge would tell a company that it is illegal to not allow third parties to "homebrew" if they wanted seems way outside the scope of protecting the public interest or protecting the public from harm.
While I'm in favor of a individuals interest to "mod" or tinker with a device that they own, if the ablility to do so is limited by hardware or license limitations designed to protect a companys means of income I don't blame the company, unless by them doing so, they make the experience worse for the consumer who only buys licensed content and uses the device in question as the company intends ( i.e phone home activation schemes or poorly implemented DRM that breaks things for real users but not people who copy content without paying for access to it.
This judge seems to not understand that Nintendo is not denying peoples ability to develop for the system, but simply making them pay to do so.
I don't believe we has a good system for software patients and bad licensing implementations is often a reason why many "pirate" but the idea that designing and selling a product with the intent for it to be used as designed so that it is viable in the marketplace doesn't hurt my ability to peruse happiness or infringe on my rights. I could simply not by a "locked down" gaming platform if I have a real need to develop but lacked to money to afford a SDK system.
I'd rather the judge have considered to not limit the ability of people to make emulators that could run said"homebrew" projects for those who want to develop them since a emulator doesn't take away from nintendo's ability to sell "real" game on a "real" DS/DSi but 3rd party flash carts do.
It is one thing to want to be able to do something and another totally to assume that the ability to do it should be free of cost
Freedom!!
Vive la France!
"the article claims that the court also deemed Nintendo's strict control of development "illegal""
Yeah! Now gimme my beloved Homebrew Channel back you greedy bastard!
Sure, flash carts can be used for homebrew, and there's a lot of DS homebrew out there...but that's not why people buy flash carts.
Don't forget that most flash cart makers put a lot of development into circumventing copy protection for the latest games.
All they really have to do is make an "Express" -type SDK. MS does it for windows. Perhaps charge for a R/W flash cart (say $100) and include the SDK free for home-users. Charge more for large scale-money making devs (Like EA/THQ/etc).
For the DSi, make devtools free for non-commercial use, and allow you to run them off the SD card.
VS Express cannot be used commercially. VS std/pro can. Do a tier-based system, and it'll please homebrewers, solve your piracy issues by doing official HW and make you money.
The reason iTouch/Iphone were so successful was because they released the SDK to basically everyday people. the big N can take some devs from there by doing something similar and up demand for the DS/i