Australia Disagrees With Spain & France; Says Nintendo Mod Chips Are Illegal

from the problems-down-under dept

Thu, Feb 18th 2010 2:55pm — Mike Masnick

Copyright rulings in Australia have been a real mixed bag lately, haven't they? There was the wonderful iiNet ruling that said ISPs weren't liable for actions of their users, and the ruling on telephone books saying you can't copyright facts. But then there was the Kookaburra ruling that found infringement in an 80s song of a popular children's folks song. And, to balance things out, now there's another bad ruling, that seems to go against the very principles explained in the iiNet rulings.

Slashdot points us to the news that an Australian court has ruled in favor of Nintendo, against the distributor of mod chips that can be used in Nintendo DS devices. Nintendo has been busy suing such distributors around the globe, though so far without much success. In places like Spain and France, courts were smart enough to realize that just distributing these chips -- which can be used for legal purposes as well as infringing purposes -- should not be considered infringement itself. It's the basic question of secondary liability, and figuring out if a third party should take the blame for actions of end users. In the iiNet case, the court realized that doing so would result in misplaced blame. In this case, the court didn't seem to care.

It's really too bad, because the court is basically saying that users don't have the right to modify a product they legally purchased and own. And, on top of that, a company selling a product that has perfectly legal uses can be held liable for the fact that some users also do unauthorized things with it. That's a troubling precedent by any measure.

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Filed Under: australia, copyright, modchips
Companies: nintendo

20 Comments

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Dark Helmet (profile), 18 Feb 2010 @ 2:32pm

Nonsense!
"Slashdot points us to the news that an Australian court has ruled in favor of Nintendo"

That was me!

*Shakes fist at Slashdot*
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C.T., 18 Feb 2010 @ 3:04pm

This has nothing to do with secondary liability
These cases all involve questions of statutory interpretation of legislation governing the protection of technological protection measures (TPMs). Australia has very strong TPM provisions. The court ruled on the case based on the operative legislation. Calling this a "bad ruling" is either extremely uninformed or completely disingenuous.
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Anonymous Coward, 18 Feb 2010 @ 3:10pm

"Copyright rulings in Australia have been a real mixed bag lately, haven't they?"

Seems like Australia is a real copyright battleground -- it's where the fight can be won or lost for the entire world.
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Modplan (profile), 18 Feb 2010 @ 3:10pm

I swear I remember hearing at one point that Australia ruled in favour of mod chips, didn't they?
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Richard (profile), 18 Feb 2010 @ 3:36pm

Re: This has nothing to do with secondary liability
"legislation governing the protection of technological protection measures"

Is a nonsense anyway - that is why the courts have so much trouble with them. Bad rulings are an inevitable consequence of a foolish law.
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Mike Masnick (profile), 18 Feb 2010 @ 3:50pm

Re: This has nothing to do with secondary liability
Calling this a "bad ruling" is either extremely uninformed or completely disingenuous.

So you think this is a good ruling?
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Chargone (profile), 18 Feb 2010 @ 3:51pm

Re:
if they did, it was possibly for a different console, in a different state, or there was some other difference in the case.

just some of the many possibilities.
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C.T., 18 Feb 2010 @ 3:59pm

Re: Re: This has nothing to do with secondary liability
If you're familiar with Australia's laws, then yes, it was the appropriate ruling. You should take issue with the legislation, not with the court's ruling. Your presentation of this case is misleading, because it seems to assume that the court is free to do whatever it wants, when it is in fact bound by the legislation that is at issue. It seems odd to compare this decision to the decisions reached in Italy and Spain when in all three cases the courts were working with a different set of statutes.
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Anonymous Coward, 18 Feb 2010 @ 4:31pm

Re: Re: Re: This has nothing to do with secondary liability
It seems odd to compare this decision to the decisions reached in Italy and Spain when in all three cases the courts were working with a different set of statutes.

What seems to be "odd" here are Australia's laws. The comparison was actually interesting and enlightening.
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Anonymous Coward, 18 Feb 2010 @ 4:32pm

Re: Re:
if they did, it was possibly for a different console, in a different state, or there was some other difference in the case.

Or a difference in the litigants.

just some of the many possibilities.

Like I said...
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The Pixel Fairy, 18 Feb 2010 @ 5:19pm

not everyone uses it for piracy
honestly. just because someone uses it to play pirated games doesn't mean everyone does. i use it because i don't want to pay for the dev kit.

in my little dream world, nintendo would stop suing flash cart developers and start competing with them. have everything the flash cart does available on the console (demos, backups, develop games on etc.)
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Mike Masnick (profile), 18 Feb 2010 @ 6:37pm

Re: Nonsense!
That was me!

Sorry, man. Spotted it on /. before I saw your submission. I gotta be fair and go in order.
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Mike Masnick (profile), 18 Feb 2010 @ 6:39pm

Re: Re: Re: This has nothing to do with secondary liability
It seems odd to compare this decision to the decisions reached in Italy and Spain when in all three cases the courts were working with a different set of statutes.

Really? You have nearly identical lawsuits in three countries, and two decide one way and the other decides another, and you find it "odd" to point that out?

Of course they're working with a different set of statutes. I mean, everyone knows that. It's one of those things that goes without saying. But the fact that the end result highlights problems with the way Australia views its laws shows how Australia's laws are problematic.
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G Thompson (profile), 18 Feb 2010 @ 8:08pm

Ok this looks like it is a Federal court Settlement and not actual Court orders at all. The parties Nintendo and "RSJ IT Solutions" (including two directors) came to an OUT OF COURT settlement that was approved by the court. This was due to the respondent acknowledging "that the devices it was selling infringed Nintendo's copyright and trademarks and were illegal circumvention devices".

That settlement included damages (which are not really damages since not proven) of $500,000AU and the promissory to not sell, distribute or import the said device [which is the R4 cartridge] in any manner.

Interestingly part of the settlement was that they (RSJ) would submit an affidavit identifying all suppliers from whom they purchased their R4 chips. [This here is the most worrying for me since it means Nintendo are going to get heavy handed on others that they can easily intimidate]

As for Australian Laws. Way back in 2005 Sony lost a major Mod-Chip copyright battle in the "High Court of Australia" (our highest court) in which the full bench of the court stated that it was lawful to modify the Sony Playstation 2 to play legal software titles purchased overseas. This was because of the region Coding problems in that Region 4 games would only work on Australian consoles.

The basic reasoning of the court at the time (and still) is that the DRM measure used by Sony was not a ‘technological protection measure’ at all. In actuality, Sony’s ‘device’ prevented BOTH pirated and other LEGALY purchased product from being used in Sony PlayStation consoles.

Sony argued that the DRM measure ‘inhibited’ infringement by ‘deterring’ it – by making infringing disks unplayable in Sony consoles.

The High Court logically rejected this, finding that the definition of TPM requires that the device physically prevent infringement.

And that is why a settlement occurred here. Nintendo (Other than on their DSi) have no Region coding. Any legal and authorised software can play on it anywhere.

This means that the R4 chip/cartridge does actually infringe s116 of the Copyright Act(Australia) which is very similar to the USA's DMCA legislation.

I am not stating I agree with the legislation, far from it. Just would like the complete facts out their first ;)
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Anonymous Coward, 18 Feb 2010 @ 8:10pm

Gods....
I'm pretty sure I can modify my own car pretty any way I want. Moreover, i can resell it, complete with modifications (or even *because* of the modifications).

WFT is the deal with computers? I buy the box, it comes with parts. I can do anything I damn well want with those parts, including reverse engineer them, for my own purposes. As long as I don't infringe on copyright, patents, or trademarks. For instance, I can see how theirs work, then make something different (hopefully better). Or I can see what theirs does and make something compatible.

I can't sell a copy of code that's not mine, and I can't give it away, except in locations with fair-use laws. But I can stick a chip in to modify it. And I can even hack the code to modify *it*, and charge for those modifications. I just can't sell the code that's not mine.

I moved to Australia from the US a year ago. It's a strange country, sometimes. They always seem on the cusp of reason, then some politician finds a way to shove his head up his ass all the way to the shoulders. You'd think this was the US, sometimes...

Oh well, at least the coffee is second to none...
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Anonymous Coward, 18 Feb 2010 @ 9:33pm

This is just another example of the burden that broken copyright laws put on society giving more reason why we would be better off without copyright.
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ant anti mike, 18 Feb 2010 @ 10:32pm

i have it figured out
i hav this all figured out
its nto about copyright or patents
its aobut kids having any type a fun
FOLLOW this test:
1) will kid have fun :ban it
2) does it allow kid /parents to do things cheaper : BAN IT
3) does it stop any progress and innovation : BAN IT

and i have soe people in australia and htey areally are geting angry....really angry

i swear soeone wants to gt some riots going and if this pursuit of GREED at OUR expense of rights and freedos continues someone is gonna get hurt
right anti mike , you agree that corporate control and power does only what it can to NOT have a revolution remove its power?
This time is coming
PROOF
in less then two weeks i have gathered 2000 NON Script kiddy hackers to me. SKILLED at many various tasks.
THERE are another full thousand others of other computer skills and others wishing to join...
and this is form but 3 countries attached to the internet.
I am being told to run politically.
DO you realize what that would mean in change for real if we started telling members to do the same lobbying your mpaa and riaa do? WE have people power what have you, ask russia what people power did.
THIS is also why they are extending the time to get ACTA done cause they suddenly knowing what they tried to do and got caught would at one point no matter be forced to show this agreement in one country and when tha happens its game over. SO they are redoing the entire agreement in parts, to prevent serious political issues.
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ChadBroChill (profile), 19 Feb 2010 @ 12:17am

Re:
Kinda like road warrior?
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tfp, 19 Feb 2010 @ 1:29am

rights n stuff
Big company wins lawsuit, little company loses. Where's the confusion? This world might pay lip service to justice, but when our own (US and UK) governments turn a blind eye to torture you know we're fscked.

Copyright Me.
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athe, 19 Feb 2010 @ 5:22am

Re:
They ruled against region coding on DVDs - all DVD players sold here need to provide an easy, free mechanism for turning off the region locking. Don't think there's ever been anything about mod chips though (perhaps back in the PS2 era, but don't even think that).
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