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Anti-piracy circumvention may be legal, EU court rules

Anti-piracy circumvention may be legal, EU court rules

Thu 23 Jan 2014 4:40pm GMT / 11:40am EST / 8:40am PST
LegalSecurity

Ruling finds value in thwarting Nintendo protection measures for reasons other than pirating games

Unlicensed devices designed to circumvent console anti-piracy measures may be legal, the European Union Court of Justice ruled today. The Court had been asked to clarify the extent of Nintendo's legal protection against such measures by the Milan District Court.

The lower court had been dealing with a dispute between Nintendo and PC Box, a mod chip seller whose products allow unlicensed software (including homebrew as well as pirated games) to run on Nintendo systems.

"The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation from the copyrightholder is required," the court rules. "That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection for unlawful purposes." [All emphasis in original.]

However, the Court also noted that the Milan District Court must look at the ways people actually use the devices in question, and if Nintendo could implement other effective protection measures that would curb piracy while minimizing negative impacts on homebrew software and consumer choice.

A Nintendo representative had not returned a request for comment as of press time.

10 Comments

Jim Webb
Executive Editor/Community Director

2,246 2,234 1.0
Popular Comment
You generally can't do homebrew without piracy being fast to follow if not showing up arm in arm.

Posted:7 months ago

#1

Steve Wetz
Reviewer/Assistant Editor

196 499 2.5
The funny thing is that anti-piracy measures damage your ability to provide a service to the customer.

I'm not for piracy in the slightest, and this would probably be the wrong forum to make such a claim anyway. But when faced with a paid service that doesn't work (or is harder to get working) and an unpaid service which is simple to use, the customer has an easy choice to make.

Nintendo has yet to prove it can sustain a healthy digital ecology anyway. The eShop on the 3DS is one of the reasons I resold mine. What a mess.

Posted:7 months ago

#2

Alfonso Sexto
Lead Tester

788 599 0.8
for reasons other than pirating games
Which only includes 1% of the people, in a Nintendo console 99% of people wants to pirate games.

According to my father (lawyer) around 0.5% of the kills within peaceful countries is strictly for self defense, but that is really hard to prove. So why not use that same logic and make it legal to kill somebody?

I disagree with this rule.

Edited 1 times. Last edit by Alfonso Sexto on 24th January 2014 10:42am

Posted:7 months ago

#3

Keldon Alleyne
Handheld Developer

434 407 0.9
1: 3DS software sales aren't exactly trumping DS figures now is it?
2: this is not killing people, but as you say, let's give people life sentences for self defence.

Oh and a caveat, Nintendo and Sega (IIRC it was both) have used homebrew emulator code to bring some of their classic titles to newer hardware. This was both uncredited and in violation of the GPL license.

And there are a few titles from the GB and GBA era that would not have been possible without homebrew tools. But yes, because homebrew doesn't matter to you, let's dismiss their legitimate usage. And while we're at it let's take a look back at indie publishers who circumvented Sega security to bring us games like (IIRC) micro machines (can't quite remember exactly which games it was, but their cartridges weren't manufactured by Sega and they were challenged about this).

Past precedents (with large companies) have already been fought about this and the consensus is, it's legal. And again, please correct me if I'm wrong, but I'm pretty sure the 3DS didn't see significantly higher software sales than the DS before it got cracked, am I right?

Edited 1 times. Last edit by Keldon Alleyne on 24th January 2014 11:30am

Posted:7 months ago

#4
According to my father (lawyer) around 0.5% of the kills within peaceful countries is strictly for self defense, but that is really hard to prove. So why not use that same logic and make it legal to kill somebody?
It's not a direct comparison though. This is more like the debate around gun ownership. Do you allow people to have something that they could potentially misuse?

Posted:7 months ago

#5

Greg Wilcox
Creator, Destroy All Fanboys!

2,159 1,081 0.5
I always hear the "homebrew" argument being used, but I rarely see any games being made for these systems, just workarounds to get more emulators and not so legal stuff running. The again, i don't follow the scene closely, so I could be wrong. On the other hand, if there WERE decent home made games being cooked up, I'd expect to hear more about them from at least one or two major game sites.

Eh, whatever - the worm turns once more...

Posted:7 months ago

#6

Andrew Jakobs
Lead Programmer

230 89 0.4
the problem with new homebrew is that it's a lot of work to start from scratch.. And a lot of people just love emulators and want to be able to play the latest emulators on their latest console (one device under your tv instead of a gazillion)..
To me, Sony, Nintendo and Microsoft should just open up their consoles completely, at least for homebrew developers, IMHO things like Playstation Mobile are a step forward (but sadly I'd rather have access to the native SDK with the same restrictions)..
Homebrew developers are also a lot of times just doing it for themselves, just for the fun of it..
I myself for instance am running a custom firmware on the PS3, but only for homebrew developing (but the biggest problem with developing homebrew is the lack of decend SDK's (normally they are only Linux and also a lot of trouble to get it installed) and being able to switch bluray regions (I have a couple of region A discs but I have a Region B player). Personally I don't have a single pirated PS3 Game, problem with those is your don't care about it compared to when you buy one (got more than 150 discbased PS3 games).. But the negative side of running a custom firmware is not being able to connect to PSN, well, maybe I can connect but then I risk being banned..
If Sony had a homebrew developer license just like they have with Playstation Mobile, I would use it immediatly and just load the official firmware (with the loss of being able to switch bluray regions)..

Posted:7 months ago

#7

Keldon Alleyne
Handheld Developer

434 407 0.9
@Greg: a lot of the homebrew developers went over to the iPhone when they got locked out of 3DS and DSi. Don't underestimate homebrew, there were great games and extraordinary development technology.

Colors! was originally a homebrew DS title. And then you have DS Craft, a MineCraft classic clone as well as a port from Out of this World by one of the original developers. There are plenty of shooter games, synthesizers and an interesting starcraft like game. And let's not forget my favourite, LockJaw the best version of Tetris available, period!

It's a fairly small community, but they exist and aren't just trying to make emulators. They're just budding programmers who want to get their code running on a Nintendo console.



And like I said, many homebrew tools have been used to create published games. The first use of high colour images on the CGB (as witnessed in Alone in the Dark) were first seen in the homebrew scene.

Edited 1 times. Last edit by Keldon Alleyne on 24th January 2014 10:15pm

Posted:7 months ago

#8

Greg Wilcox
Creator, Destroy All Fanboys!

2,159 1,081 0.5
Keldon: I don't underestimate homebrew at all, as I LOVE my indie garage RPGs and other stuff jamming up my hard drives. I just never really see people make the games they say they can on those consoles that end up just getting emulators up and running. I think Powder was the only PSP and GBA cross platform homebrew I've ever played, and I know there were others done. I just got too busy to keep following the scene. So, thanks for the update - I'll poke around on those links later!

Posted:7 months ago

#9

Tom Keresztes
Programmer

644 263 0.4
Just never really see people make the games they say they can on those consoles that end up just getting emulators up and running.
There is a distinction between a gamer and a game developer. Just because you tend to see the first more does not mean all game developers are like that. Similarly, the demoscene terminology for everyone who cannot contribute (not a coder, artist or musician) was "lamer". The scene is not for creating those things so that the lamers can have free stuff, its just a side effect.

Posted:7 months ago

#10

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