France Agrees With Spain In Saying Modding Nintendo DS Is Not Illegal

from the good-for-them dept

Mon, Dec 7th 2009 3:33am — Mike Masnick

We had just recently written about how a Spanish court had ruled against Nintendo, saying that a company making "flash carts" for the Nintendo DS -- basically alternative cartridges that can be used for non-authorized games -- was not breaking the law. The ruling basically said that since the flash carts extended the utility of the Nintendo DS, it should be allowed. The reasoning is that Nintendo should not be the only one who can extend the functionality of its devices. This was a nice surprise, but not a huge surprise, since Spain has a good track record of reasonable copyright law decisions.

However, what is surprising is this story, sent in by a few folks, with reader "Sauce" getting it in first, noting that there has been a similar ruling in France, the inventors of the infamous "three strikes and you're out" form of copyright law. The court there seemed to have a problem with Nintendo purposely locking developers out of its device, and even suggested that it should be required to be more open to developers, like Windows. Fascinating to see European courts recognizing the rights of individuals to have a "freedom to tinker."

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, france, modding, nintendo ds
Companies: nintendo

28 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Rabbit80 (profile), 7 Dec 2009 @ 3:45am

Yet at the same time, it is illegal to mod my Xbox 360 to add extra functionality - and Microsoft can brick it on a whim and remove virtually all functionality! Go figure!
[ link to this | view in thread ]
ethorad (profile), 7 Dec 2009 @ 3:50am

three strikes and your out? *wince*
[ link to this | view in thread ]
Sheinen, 7 Dec 2009 @ 4:01am

Moose
Slightly different...m$ have said you can Mod it all you like, but you can't then use it on live. Which is fair to the point that it prevents hackers from cheating and fucking up everyone elses good time.

I really don't think games fall in to the movie/music catagory of 'should be available for free as a hook for alternate revenue.' The games take a fuck load of people several years to make and provide up to 30+ hours of gameplay...I'd say that's pretty worth the asking price.

Plus the 'alternate revenue' would fuck it up - you'd have to pay for each gun upgrade, costume change, new level, individual live tournaments, there'd be advertising in game everywhere...actually that's not far from the truth now...
[ link to this | view in thread ]
Anonymous, 7 Dec 2009 @ 4:57am

"three strikes and your out" ???
Oy
[ link to this | view in thread ]
Liam, 7 Dec 2009 @ 5:16am

Re: Moose
The problem is the pricing though, a $50 game in the us should cost roughly £25-30 but that's not the case, a $50 game in the us is a £50 game in the uk.

As you can see, in the uk we have to pay double as much as you do in the us to get the same content.

How is that a fair asking price?
[ link to this | view in thread ]
Anonymous Coward, 7 Dec 2009 @ 5:21am

Two grammar nazis already ...
[ link to this | view in thread ]
Anonymous Coward, 7 Dec 2009 @ 5:40am

In the U.S. no mods are allowed.
The DMCA make sure of that.
If you bypass or "circumvent" in any matter you have to hope and plea for forgiveness because the guy who put the protection scheme in place even if the protection is lame have the power to make your life miserable.

ACTA probably would transform this in a global law.
[ link to this | view in thread ]
Rabbit80 (profile), 7 Dec 2009 @ 6:00am

Re: Moose
The british courts have ruled that modding consoles is illegal...

http://www.theregister.co.uk/2004/07/21/ps2_mod_chip_win/
http://www.techdirt.com/art icles/20091111/0206596891.shtml
[ link to this | view in thread ]
joe king, 7 Dec 2009 @ 6:05am

I wonder
if France and Spain would rule the same way if Nintendo were a French or Spanish owned company.
[ link to this | view in thread ]
NullOp, 7 Dec 2009 @ 6:11am

Way to go...
Well done Spain! It's good to see some country striking a blow for free enterprise. It's really a joke when a company states "We are the only ones allowed to make our product better." Making it better is 99% of all human inventivness.
[ link to this | view in thread ]
Chronno S. Trigger (profile), 7 Dec 2009 @ 6:14am

Re: Moose
"Slightly different...m$ have said you can Mod it all you like, but you can't then use it on live. Which is fair to the point that it prevents hackers from cheating and fucking up everyone elses good time."

It would be one thing if they just did that but they are also removing functionality of the Xbox when it's banned. There are things that can be done strait out of the box before connecting to live that cannot be done after the ban.

There are so many reasons to buy the real version of the game and I have no problem with people getting banned from XBL for pirated games (Banned not bricked, pirated not backed up), but pirating games isn't a problem for the Xbox. How many games, one after another, have broken that first day sales record? First Halo 2, then Halo 3, then GTAIV, now COD MW2. Piracy should be the last thing on developers' and Microsoft's minds. In fact, it should be the last thing on Nintento's and Sony's minds as well.
[ link to this | view in thread ]
cc, 7 Dec 2009 @ 6:20am

I've "modded" my DS with just such a cartridge, and the reason is homebrew, not piracy -- it's *my* DS and I want to be able to do whatever I like with it (and ARM assembly language is pretty cool!).

In the Xbox case, even though I've never cared to own one, what I find unacceptable is that Microsoft had a "backdoor" that allowed them to download and run code on the consoles without the consent of the owners, and the code checked the hardware and sent back data about *specific* consoles so they could be banned. I don't care if they did it to stop piracy or to stop cheating, I just don't like how they did it.
[ link to this | view in thread ]
Steve R. (profile), 7 Dec 2009 @ 6:30am

You Bought it You Own It
When you buy a product you acquire the ownership (property rights) to that product. We need to end the fiction by the content industry that they are only "loaning" you the use of the product at their sufferance.

If you can customize your car, you should be able to customize your game console.
[ link to this | view in thread ]
Marcel de Jong (profile), 7 Dec 2009 @ 6:36am

It's not modding
It's not modding in the technical sense. Because the actual hardware isn't modified. Those cards you put in the DS don't harm the hardware at all, they work just like a regular game, the producers only retrieved the security codes that Nintendo placed on the DS-cards in order for those cards to run.

If Nintendo was smart, they'd release a card that would allow for homebrew software to run on it, but not the 'illegal' ROMs. That way they can point to that, as an "approved" alternative.
[ link to this | view in thread ]
El Guerrero del Interfaz (profile), 7 Dec 2009 @ 6:38am

Logical
Here the lobbies behind the laws that forbid this kind of stuff in the US are not so strong then there.

On the contrary the big content lobbies are not only strong but friends of the government, so the 3 strikes stupidity. But that's changing: instead of the usual know-nothing consensus, there's infight in the socialist party over the 3 strikes thingy, not everybdoy aggrees :-)
[ link to this | view in thread ]
Richard (profile), 7 Dec 2009 @ 6:56am

Re:
All hardware should come with full software SDK so that anyone can program it. This is in the company's interests.

We bought a full lab's worth of PS3's a little over a year ago but they are now bricks from our point of view. The graphics hardware is not accessible to program (unless you pay megabucks to become an official developer) and without that they are no better than the PS2's we had before (in fact they are worse). So now our students will not be taught to program them and all the Sony studios will continue top complain that they can't get enough programmers!
[ link to this | view in thread ]
Anonymous Coward, 7 Dec 2009 @ 7:02am

Re: Logical
socialists? Sort of explains it all, doesn't it? Some of the rulings that Mike applauds border on the communistic side of things.

Mike, are you from Vermont?
[ link to this | view in thread ]
Marcel de Jong (profile), 7 Dec 2009 @ 7:28am

Re: Re: Logical
Two things:
1) Socialism is not equal to communism.
2) Can you give examples of Mike's views bordering on the 'communistic side of things'?
[ link to this | view in thread ]
interval, 7 Dec 2009 @ 7:50am

Re:
Yep. Its getting so the consumer really isn't the important factor here. Pretty soon we'll see stuff like "Use only ACME approved axe-sharpeners with your ACME Axe or you'll face the wrath of the ACME corporation." And their running lap-dogs in the US Senate.
[ link to this | view in thread ]
interval, 7 Dec 2009 @ 7:54am

Re: Moose
"I really don't think games fall in to the movie/music catagory of 'should be available for free as a hook for alternate revenue.' The games take a fuck load of people several years to make and provide up to 30+ hours of gameplay...I'd say that's pretty worth the asking price."

But its not a question of what you think, (BTW, I agree with you, but...), its a question of what the market will tolerate. You create the greatest whiz-bang gaming system and the coolest action game ever, or the greatest film, or the best music tracks, but if people won't buy them, FOR ANY REASON, be it changed in technology or what have you, but you still want to create these things (you poor sap, you should have gotten you PhD in Chem), you really don't have a choice. You need to create value beyond the creation.
[ link to this | view in thread ]
interval, 7 Dec 2009 @ 7:57am

Re: Re: Re: Logical
"Socialism is not equal to communism."

No, but its an equally stupid idea. Thank god only the idiots in Europe practice that nonsense.
[ link to this | view in thread ]
The Groove Tiger (profile), 7 Dec 2009 @ 9:35am

Re: Re: Re: Re: Logical
Taxes are socialist.
So are roads.

You should stop paying your taxes and using those communist roads right now.
[ link to this | view in thread ]
TheStupidOne, 7 Dec 2009 @ 12:26pm

Re: Re: Moose
If you pay it, then it must be fair.
[ link to this | view in thread ]
Anonymous Coward, 7 Dec 2009 @ 3:49pm

Re: Re: Re: Logical
1) Socialism is the "nice" version of communism.

2) Almost any thread where Mike says people don't have rights to control what they make, and they have no right to profit from their investments. Anywhere that he says that everything should be open, with no restrictions.
[ link to this | view in thread ]
CrushU, 7 Dec 2009 @ 4:09pm

Re: Re: Re: Re: Logical
Almost any thread where Mike says people don't have rights to control what they make,

Not after they sell it.
[ link to this | view in thread ]
Marcel de Jong (profile), 8 Dec 2009 @ 6:08am

Re: Re: Re: Re: Logical
You sell something, you lose ownership and control over that something.

If you sell me your rare stamp collection, I could use it to send letters, and you can't do anything about that.

If I buy a games console, it's MY property, and I can then modify it, to suit MY needs.
If I want to gut my Wii and make its housing into a tiny garden... Nintendo has no legal legs to stand on to stop me.
If I want to add a little tiny chip to the Wii so that I can play homebrew games, Nintendo doesn't have a say in that matter as well, as it's MY property. I did not rent the Wii from Nintendo, I bought it at a store.
Same holds true for the DS, in that case, I don't even alter the hardware, but instead use a software cartridge to play homebrew games. I bought the DS, and I bought the cartridge. That cartridge can indeed also be used to play copied/illegally obtained videogames (roms), but that doesn't mean the cartridge itself is illegal.
[ link to this | view in thread ]
Marcel de Jong (profile), 8 Dec 2009 @ 6:13am

Re: Re: Re: Re: Logical
Unlike the brilliant capitalistic system they practice in the US. Where it's every man for himself, if you can't make it on your own, for whatever reason, you're destined to go down in debt.
Except when it comes to big businesses, which are "too large to fail", so they need financial help from the government, to help them pay their exorbitant bonuses on the backs of the hardworking Americans.
[ link to this | view in thread ]
Videogamer555, 21 Jan 2012 @ 3:54pm

Modding may now be legal in the US!
The US courts have ruled that jailbreaking an IPhone to run homebrew (non-ITunesStore) software is legal. This might mean that similar devices (Nintendo DS and Sony PSP) can also be legally hacked to run homebrew (just as long as you don't run pirated games, which is ALWAYS illegal).
[ link to this | view in thread ]