A Spanish computer store owner is battling Nintendo over the sale of M3 DS Real memory cards.
A 31-year-old Spanish computer store owner accused by Nintendo of aiding piracy isn't taking the allegations lying down, and plans to take on the video game giant in court with a counter-suit of his own.
Alejandro Fernandez of Spain currently faces six counts in criminal court including theft of intellectual property, theft of industrial property and disclosure of industrial secrets. He also faces a 23-year sentence and fines up to $1.24 million USD. Thing is, Fernandez didn't "steal" anything. Rather, he's accused of breaking the law by selling "M3 DS Real" memory cards that "jailbreak" Nintendo's DS handheld gaming system.
The questionable memory card is widely available in China and can be used for using homebrew applications on the device such as PDA programs and emulator programs. Users can also dump converted movies and TV shows onto the card and watch them directly on the device. However lawyers representing Nintendo argue that the cards can be used to run ripped DS ROMs-- they essentially "break" the proprietary Nintendo systems in order to run unauthorized software.
But Fernandez indicates that customer actions are not his problem-- he's not responsible for what consumers do with the cards after money exchanges hands and they're off the premises. He claims that Nintendo is assuming what his customers plan to do-- he assumes that people are actually responsible.
"The device itself does nothing, it is hardware. We sell it completely empty," he said. "It’s a kind of memory where the user gets what he wants and the user has the choice to do what he wants. There are plenty of free applications… People have it in their heads that everything that you get off the Internet is pirated, and it is not."
Nintendo's core accusation against Fernandez is in the cartridge itself and how it's design copies Nintendo''s own offering. This is where Fernandez and other retailers in Spain are basing their counter-suit against the gaming giant. According to European trade harmonization laws-- which were established to ensure inoperability and prevent anti-competitive behavior-- it's illegal to use a proprietary physical design to "gain a monopoly on technical solutions."
To make matters worse for Nintendo, Spanish courts previously ruled that non-commercial file sharing is legal. So the questions really seems to be this: are the memory cards a form of mod chips? If so, and if they're illegal in Spain, Fernandez and the other retailers may have a problem. But if Nintendo is found to be in breach of European harmonization laws due to using a proprietary memory card, the legal battle may sway towards Fernandez.
This will be an interesting battle to follow. We'll keep you posted.
- Woman Steals SIM Card, Spends $193,000
- Osama bin Laden's Compound Mapped on Google
- New Google TV on the Way
- First Firefox 5 Build Posted
- Assange: Facebook an Appalling Spying Machine
- Project iKinect Combines Kinect with iPhone
- RIM Confirms Bold Touch, its Thinnest Phone Yet
- Moto Promises More Laptop Docks for Phones
- RIM Unveils BlackBerry 7 OS for Summer 2011
- Sony's SOE Suffers Breach, 24 Million Affected
- How Did Obama Watch the Osama Raid Live?
- Digitimes: Amazon Tablet to Be Made By Quanta
- Sony: Hackers Exploited Known Vulnerability
- Packaging Foam Molds to Fit Any Object
- Groove Strap Turns Your HDD Into a MP3 Player
- Meet the Algae Powered Eco-Lamp
- First Dynamic Firewall for Android Released
- Pepsi Creates Social Vending System
- New Nintendo Console Won't Get A HDD
Might as well ban the use of MicroSD cards too, since I use them to run my old Pokemon games for the GBC on my Android. I've still got the cartridges, it's just that Pokemon Yellow doesn't really hold a savegame anymore, and I also have a hard time fitting the cartridge in the MicroSD slot!
i hope the guy wins. he has a valid argument. the only way they could win this case if the card was proprietary, and therefore breaking a nintendo patent. which he is not.
Go Fernandez, time to put these control freak companies back in their place. The only problem is the fight is uphill since these companies buy off our slimy politicians and judges with donations and such.
This is like suing a hardware store for selling hammers that can be used to break a window to commit theft. I used to love nintendo, but this law suit is stupid beyond belief and I hope they lose. Go Fernandez!
Looks like Nintendo are in a Lose-Lose situation with anything they say in one suit being liable as evidence in the other.
"he's not responsible for what consumers do with the cards"...he's going to lose and badly.
"he's not responsible for what consumers do with the cards"...he's going to lose and badly.
From what I understood, he is not selling jail-breaking cards. He is selling memory cards. These cards can be loaded with software that can jail-break the DS. Alternatively, people could be loading pictures onto these cards, or, as the guy said, any number of legal programs available on the internet.
The logic being used by Nintendo is that because it could be used to commit a crime, it should be illegal, but then everything would be illegal (though I do recall the MPAA and RIAA trying to sue computer manufacturers since computers can be used to rip music and movies). All these corporations are F-ed. Sadly, those corporations run America, but it sounds like some other countries might not be so corrupted yet.
Next we'll see companies suing HDD manufacturers because people might use them to store pirated songs. Or maybe that extra RAM you got for your laptop could be used in the execution of some pirated software! Gasp! Better get those video card people too, how dare they transmit pirated movie content to your monitor, for that matter how dare the monitor accept it! And those processors, with their too-dumb-to-tell-if-it-is-pirated-or-not transistors. Of course we'll have to take out those blasted NICs eventually; block up the tubes so we can go back to the good old days of consumers being farmed for every penny and having no alternative. After all, there is clearly no possible good reason anyone could have for using any of those things. Who has two thumbs and would knock society back half a century if it meant a few more bucks? This guy!
Nintendo's case is dead in the water.....
Next!
that is like taking a law suit case against Ferrari for speeding tickets
The Thought Police are coming in the form of Corporate lawyers....
Penultimate paragraph, first sentence: change "it's" to "its" and the double quote in "Nintendo"s" to "Nintendo's".
If that is Nintendo's argument against the very legality of these cards then where does it stop?
Blank CD/DVD/BR disks can be used for similar purposes. Hard-drives can be used to store and use pirated content. A automobile can be used for many reasons to break the law.
See where this logic ends up? Corporations have tried this argument before but the problem is they want the law to be a special exception to their cause and any fair law system cannot grant such. Either its legal or anything/everything that can possibly be used to break the law must be banned.
Also while I can understand the stance against piracy to oppose the user to find useful
and desirable things it can do on the side is just actually down right idiotic. If people can make ways to make the product more desirable this will naturally boost sales. Not only that Nintendo could easily take note of what users desire and attempt to bring those features in the next product once again boosting sales.
Nintendo's case is dead in the water.....Next!
Matters on the laws of the land. From what I understand they actually were able to get these cards to be illegal in Japan.
As stated before, it depends on the law of the land. Ultimately, he could just stop selling the cards for a set amount of time until he is officially and legally allowed to do so from a court ruling.
The problem with Nintendo is the fact that this unit could be used to copy games illegally. Maybe what Nintendo needs to prove is the number of illegal games are out there in relationship to the sales they receive from legal games. I think they would find they lose more money on used games being resold than pirated games.
I thought the RIAA won the case over royalties on blank CD's, since they could be used to copy music. I remember there being some overpriced CD's that included it.
You've all been sending your checks to the RIAA with every blank CD purchase, right?
Let's all cheer for the little guy!!!
"People have it in their heads that everything that you get off the Internet is pirated, and it is not."
Yes it is, freeware doesn't exist at all, wtf did this statement come from? Lala land? Hell I even pay $0.02 per cubic meter of air I breathe, nothing is free in Corpworld. At least the taxes on how much we pay per step taken on public property dropped down to 8% after our new sinister dictator came into power.
Amen
DS running iOS now?
Actually it isn't as either clear cut or "simple" and easy as just simply being the use of the card. The idea is "does the technology use by Nintendo lead to monopoly usage" and that answer is no and is really closer to a frivolous one really.
Tons of the posts here are getting idiotic on homebrewed systems and actions to be honest. I mean really guys, whether it was Napoleon, Reggie, Eklipz, Nuclear even yours Twitching. The basis of the lawsuit is not so much the card itself, the basis is the intended purpose of the card; a card designed to do nothing more than circumvent and namely allow for the use of illegal actions on th device.
This itself mirrors torrent cases where a company gets sued namely for the development and distribution of software and means that predominately support activities that are in the realm of pirating activities and Mr. Fernandez is saying "omgz I don't know that they are pirating illegally I just supply the means". That in itself is a weak case overall and Nintendo has the upper-hand more than most of the posters realize.
Thirdly, seriously people, can we just all stop being douches of the "omfg it better be free or pirated because if not, well F* company (insert name)" because this attitude and complex is getting more and more childish. So a company is not taking matters sitting down when it comes to asking to be paid for itself. Yes I see how its a crime to actually request to be paid. Obviously tons of you who posted in support of Fernandez also like to work for free and not get paid for what you do as well.
Worse yet, a company goes into business to make a profit, whether its Xbox, Apple or Sony or Nintendo even. Frankly when it comes to posters on these forums you have few issues with Apple making money (despite their attitude being more rigorous on product control on the company end) and yet feel more than happy to dish on other companies. Yea this double standard is equally as idiotic.
To be frankly honest though, there was a time when a lot of my friends (>70%) had a NDS Lite and brought it to school regularly. None of them actually bought a game, but instead they bought a R4 card and then simply downloaded ripped ROMs.
For once, I actually agree with claims by Nintendo.
What's different about the thumb drive Nintendo sells that makes it not usable for the exact same thing? Brand labels and extra cost aren't magic barriers.
He probably made a mistake assuming that.
So if you sell a knife - you are responsible for what your customer does with it ?It can be use for making food or for killing someone... why should this be the vendor responsibility ???
If you break a window with an hammer... do you expect manufacturer to pay for that because they sell it to you?
So if you sell a knife - you are responsible for what your customer does with it ?It can be use for making food or for killing someone... why should this be the vendor responsibility ???If you break a window with an hammer... do you expect manufacturer to pay for that because they sell it to you?
Good point.
Good point.
Not only. A knife can be used for many useful purposes. But a gun, a gun is to kill. Be that protect kill or attack kill, still a kill. Guns are legal.
Torrents can be used to distribute linux distros, patches for wow and many other goodies that are supposed to be free. Speed and flexibility being a good advantage. I even download directx, catalyst or physx updates from torrents because they go faster than the the amd, nvidia or microsoft servers.
A suitable analogy of this would be:
Gun shop sells gun to people.
People may, or may not, use the gun to commit crime.
You could look at this in one of two ways.
a.) Go after the person that may or may not be committing a crime with the gun.
or
b.) Go after the shop that sells the guns, therefore preventing any chance of crime in the first place.
Option a is a long and complicated process... whereas option b is a lazy, faster, and ultimately cheaper process. Like going after drug dealers, or pimps. However, as far as I know, selling memory cards is not as big a crime as selling drugs, or pimpin' hoes out.
I'm not a lawyer, but it seems to me that option b, is always a more effective way of preventing crime, cut the source/enabler off.
its easier to catch the salesman than the users... guess tahts why they go after them.
It's easier to go after the salesman than the users, but you can't punish the salesman for selling something legal with legitimate uses. You just can't. That's insane.
Now if that product was established as illegal, then that would be a different issue. But if it were illegal, this wouldn't be a case of Nintendo suing him for disclosing trade secrets, it would be some portion of the Spanish government charging him with willfully selling illegal merchandise. It seems to me that what Nintendo is trying to do here is get it ruled that the device is illegal, using this guy as the path to that ruling.
Now, I don't know how things are in Spain, but in the US if you do something and it's later classified as a criminal act, you can't be charged for it. I hope they have something like that in place too, because it makes plenty of sense. If that's the case, then even if it is ruled that the cards are illegal, this guy is still off the hook unless he continues to sell them after that ruling. If I were a judge, I would throw this case out on the grounds that it's impossible for the defendant to be found guilty of a crime.
Seriously, everyone take a step back and consider. They want to lock somebody up for 23 years and fine him up to $1.24 million--effectively destroy his life. Who did he kill? What government agency did he betray? How many people did he sell into slavery? It's none of the above. He's a store owner who sold a product. At best he was offering a desired product and operating within the legal limits of the law. At worst he was aware that the product could be misused and simply didn't care, which is also not a crime. No matter how you slice it, there's nothing illegal this guy is doing, and certainly nothing to warrant taking 23 years of his life.
I understand all the ideallogoy being argued in this thread, and agree with that Nintendo should not be able to shutdown a hardware device. But...
I could not find it on Amazon or Froogle, yet I did come across some shoddy hits on Google (tried to force popups and fake viruses into my browser), so I must conclude that it is probably illegal.
I think Nintendo is stupid in these cases though, I mean they are just educating more people about these devices. I, myself, never heard of an "M3 DS Real" until I read this article. Now I want one. This would be great. My kids could watch movies individually and not fight over the car DVD player.
I guess the real legality would be if these cards involve PKI and have a copy of Nintendos key on them in order to be able to run "unauthroized". Then this could be considered Nintendo's IP
To all these folk using analogies to hammers and knives, maybe change it to lockpicks (in case yu lock your keys in your car) or some device that can electronically detect a safe combination (in case you forget your safe combination).
@Twile
Thumbs up!