Spanish Court Dismisses Complaint From Nintendo Against Counterfiet DS Cartridges, Since They Add Functionality

from the getting-it-right dept

It seems that Spain is a country that is pretty consistently figuring out that we shouldn't just throw out all other rights the second "piracy" is shouted by the entertainment industry. We've noted recently that the country hasn't just rejected three strikes and declared broadband a basic right, but has also ruled, repeatedly, that personal file sharing is legal. And now, it even has judges who realize that "anti-circumvention" laws should have limits as well.

As you probably know, one of the key things that the entertainment industry has pushed for throughout the world is "anti-circumvention" clauses in copyright law. In the US we have this in the DMCA and it's a total mess. The law basically says that any attempt to circumvent (or to make or sell a tool to circumvent) DRM on a digital work is a violation of the copyright law -- even if making a copy of the content in question wouldn't violate copyright law.

Spanish copyright law includes an anti-circumvention clause, but as Leo Martins alerts us, a judge in Salamanca, Spain has taken a much more nuanced view of it in a case pitting Nintendo against Grupo Movilquick, who produced alternative cartridges for Nintendo DS devices. The judge's ruling (translated from the original) appears to find that the alternative cartridges do, in fact, circumvent Nintendo's DRM and can be used for "pirating" games, but also extend the utility of the devices for perfectly legal purposes. For that reason, the judge dismissed the lawsuit (translation from the original) noting that it doesn't make sense that the law would be intended to say that only Nintendo can expand the functionality of its devices, and the fact that Nintendo doesn't offer similar functionality shouldn't preclude others from doing so. There are areas where Nintendo can still bring a lawsuit, such as for patent and trademark issues, but the judge notes those should be dealt with in a civil court.


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    Lucretious, Nov 23rd, 2009 @ 12:12pm

    pretty sad that one has to go to Salamanca, Spain in order to find a judge who has his head screwed on right

     

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      Chargone (profile), Nov 23rd, 2009 @ 1:48pm

      Re:

      On the other hand: yay! Such judges do exist! The world is not quite entirely doomed!

      But yeah. That is pretty sad.

      It's always seemed to me that a lot of cases would be better settled [mostly civil, but some criminal too] by way of the law saying 'in the event that thing x happens/is desputed, it may be brought before a judge' ... and says nothing else. the judge listens to the sides and then says "here's the solution. go do it"

      I'm not explaining that properly... meh *shrugs*

       

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    Anonymous Coward, Nov 23rd, 2009 @ 12:28pm

    sadly we will have to wait till more judges who understand technology to grow up and realize that a lot of what these companies want just make no logical sense. Cheers to Spain!

     

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    Simon Lynch, Nov 23rd, 2009 @ 12:29pm

    mmm, consistently?

    Please don't hold Spain up as a good example. Blank media and recording devices sold in Spain carry a tax on them 'just in case' you do something nasty with them that infringes on someone's copyright. If I want to buy a DVD-RW to back up data, I get the privilege of paying €0.60 which go to a author's rights collection agency. Want to buy a PC with a CD/DVD recorder in it, €3.40 extra... Think they are pulling in €300m/year or thereabouts. Someone already figured out how to screw all users, blocking a few cartridges or chucking people off the net is pretty 'small beer' in comparaison...

     

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    baditup (profile), Nov 23rd, 2009 @ 12:33pm

    really?!?!

    soooo, basically ANYTHING that can record SOMETHING would fall under that law...

    I mean, then Creative Labs would pretty much be in the shitter... oh wait, because I can hear then pretty much immediately play something on the guitar, does that make ME one of those devices.... is my existence illegal?!?! hahahaha, what a joke! ¡Viva España!

     

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    Johnny Canada, Nov 23rd, 2009 @ 3:54pm

    @ Simon Lynch

    That is less than the tax on blank media in Canada.

    But they have more rights in Spain NOW.

     

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    Paolo Brini, Nov 23rd, 2009 @ 4:59pm

    Very important decision

    Europeans, check out new Directive 2009/24/EC (which is a clean rewrite of the several times amended 91/250/EEC). Recital 15, article 5 and article 6 are strongly consistent with the spanish decision. And there's more: they should stop Apple's plan to make iPhone jailbreak illegal (in the European Union). Link to the Directive 2009/24/EC, official publication.

     

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    Paolo Brini, Nov 23rd, 2009 @ 5:00pm

    Very important decision

    Europeans, check out new Directive 2009/24/EC (which is a clean rewrite of the several times amended 91/250/EEC). Recital 15, article 5 and article 6 are strongly consistent with the spanish decision. And there's more: they should stop Apple's plan to make iPhone jailbreak illegal (in the European Union). Link to Directive 2009/24/EC.

     

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    Christopher (profile), Nov 24th, 2009 @ 12:53am

    Spain has the only smart judges

    Very sad that only Spain has realized how much the arguments of Microsoft, Sony and Nintendo REEK on the piracy front.... I wonder if a court case can be filed there for what Microsoft did to the XBox360 users who had modded their machines to play backup games?

    I mean, yes, those things CAN be used for 'infringement'.... but they can also be used and most likely ARE MORE OFTEN USED for playing backed up games, which should be legal and actually IS legal by the US laws, when you remove the DMCA... which for some reason has never truly been challenged in a court of law.

     

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    Anonymous Hero, Nov 24th, 2009 @ 1:42am

    erm...IMHO the title of this is inaccurate, they are not "Counterfiet DS Cartridges" the description used in the article "alternative cartridges" is more accurate.

    With exception of it's shape which is necessary for it to fit (has Nintendo trademarked the DS cartridge shape?) flash cart manufactures are careful not to make their carts/boxes look like the big N's originals, so they shouldn't be seen as passing off (moron in a hurry test?)

     

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    Marcel de Jong (profile), Nov 24th, 2009 @ 4:38am

    If Nintendo was smart

    THEY'd come out with a cartridge that would allow for homebrew applications. But since all the big media corporations are built on greed (and Nintendo isn't any different), they refuse to do that, as they wouldn't make money on those free apps.

     

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    Derek Kerton (profile), Dec 1st, 2009 @ 11:12am

    Harmonization

    The US and other countries MUST quickly adopt these practices from Spain in order to "harmonize" our IP policies.

    Ha.

     

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    Er Michel, Apr 13th, 2012 @ 3:35am

    Viva Espaa-Movilquick y anda y que les den a los de Nintendo

     

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