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Man Takes On Nintendo in Piracy Lawsuit

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.