French court favours DS flash cart seller

By Games Industry.biz Published 9 December, 2009

Nintendo "extremely disappointed" at ruling.

Nintendo has said it is "extremely disappointed" by the ruling made by Paris' Criminal Court last week in favour of flash cart sellers, but that it will appeal the decision.

The court found Max Louarn, his company Divineo, and other co-defendants not guilty in the criminal case, despite Nintendo's prevailing in a similar case against Divineo France in a Hong Kong court last year.

Nintendo says that, as a victim, it will now join the prosecutor's appeal against the judgement.

"The Divineo France company had already been prohibited by a Hong Kong court to manufacture, market or export products intended to circumvent Nintendo’s technical prevention measures," read the Nintendo statement.

"In 2008, the Hong Kong court handed down two judgements ordering Max Louarn and Divineo France to pay Nintendo EUR 44,605,082 damages. Nintendo is yet to receive these damages and is seeking enforcement of the judgements through the court at Avignon.

"Nintendo maintains that infringement of its intellectual property rights, on its trademarks, software, its technical prevention measures and its videogames is causing damage to the whole videogame industry, preventing developers from gaining the full benefit of their hard work and creativity, but also to the customers who expect the highest standards and integrity from products bearing the Nintendo name."

Following the court's decision on December 3, Louarn's website, MaxConsole, reported on the case saying that Nintendo had been accused of purposefully preventing people from developing for their consoles.

"The judge today has ruled against Nintendo and suggested that they are purposely locking out developers from their consoles and things should be more like Windows where anyone can develop any application if they wish to.

"The ramifications of this are huge, as it indicates that flash carts are actually legal. Moroever, it could have bigger implications for developers and the like because Nintendo is deemed to be 'illegally' protecting their system by locking users out. Therefore, developers should not actually require separate development kits and should just be able to develop applications as they wish on retail versions of Nintendo's consoles," reported the site.

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Comments (22) Latest comment 2 years ago

Comments threads automatically close after 30 days, but please feel free to continue chatting on the forum!

  • jonsaan #1 2 years ago

    Trust the French to be different. Still, it doesn't hurt to challenge the status quo once in a while eh?

  • KayJay #2 2 years ago

    Shirley this can only be a bad decision from the courts. These guys are assisting theives arent they!?

    Have I got that wrong?

  • el_pollo_diablo #3 2 years ago

    OBJECTION! etc

  • Xerx3s #4 2 years ago

    Of all things, scummvm is the most used program on my DS. It's brilliant. So go independents!

  • NotSoSlim #5 2 years ago

    How many consoles would Ninty have sold without flash carts? Same goes for psp

    It ain't right but that's why we will see digital download handhelds just handled better than the pspgo hopefully

  • paulf #6 2 years ago

    @jonsaan Im not sure the french are being different, as far as I can remember selling the cart is only illegal in hong kong and japan (someone correct me if wrong)

  • Der_tolle_Emil #7 2 years ago

    I am all for homebrew but circumventing the DS' anti-piracy measures is something else. I know it's only a very thin line (if at all) between the two so I wish Nintendo would just allow homebrew on their next consoles. Lots of homebrew programmers are clearly against pirating software and it would make life easier for a lot of the programmers and users. If homebrew was enabled from the beginning people would buy fewer flashcarts which would mean less piracy.

    It's an utopian wish but oh well. I still think that the amount of people who bought flashcarts for homebrew is significant and that it will have an impact if they didn't have to buy one.

  • Sharzam #8 2 years ago

    Intreasting take on the whole piracing topic, i see the logic that should be a open platform like a pc as that in terms allow unlimited creativity. However surely one of the reasons consoles and handhelds are popular is due to the fact its a closed platform eg you buy an xbox for xbox live, but it would not be the same if everyone had there own custom services or homebrew as it is aconnected to many other things not so legal.

    So iam neither for or aganist, i just think this could be very intreasting to follow as there is good and bad in both sides.

    Edited by 1 at 09/12/09 @ 17:36

  • IneptPercy #9 2 years ago

    The biggest problem is the fact the flash carts do offer a better user experience.

    In my case I use an M3 and I can carry about as many games as I like at any one time without carrying the extra carts, same goes for ease of swapping games etc.

    As for if all games are paid for is another arguement, but from a games point of view it is better as well as using it for media players etc.

    Basically its not the product which is illegal, its how mnay people are using them which is.

    But on the same basis its like making all knives illegal because some people stab people with them, ok I am sure more people use flash carts for piracy than people use knives to stab each other but you get what I am saying.

  • Kanjin #10 2 years ago

    Flash Cards legal? That's good, much better than lugging around 10-15 DS memory cards. It's only if they get used to store pirated games that the problem arises.

  • influenceuk #11 2 years ago

    Old news, this was on Sky News 2-3 days ago! For a gaming site why do Eurogamer seem to be so off the pulse!?

  • canIdoyabombsforya #12 2 years ago

    Ouch, I can see where the French are coming from, but Microsoft don't design, build and own the rights to PCs.
    In slight defence of piracy, Nintendo just want the the right to make a killing and don't listen to their customers. If they did, there would be no homebrew scene offering far better features on the Wii and DS.
    You can see why Sony and MS might get upset, as they heavily subsidised the hardware. This could lead to us paying full price + profit for future consoles. i.e PS3 would have been about $850.


  • penhalion #13 2 years ago

    It falls to the simple premis that once you buy something it's yours to do with as you please, whether that is using flash carts on it or homebrew or music etc.etc. It's neither Nintendo, Microsoft or Sony's place to try to tell you wht you can and can't do with the machines. Fair enough they can prosecute for pirating games but not for gutting, modifying or even blowing up your own 200 quid hunk of plastic you just bought from game, eb or whoever.

    I suspect that more and more governments will start to question the legality and ethics of these cases, especially as the implication is that you buy but, don't actually own the consoles.

  • jonsaan #14 2 years ago

    I love how people who use flash carts always bang on about how they would never use it for illegal gaming. Utter hogwash I'm afraid. If you are going to be a pirate don't hide your parrot.

    /runs

  • kendoji #15 2 years ago

    Surprising and interesting ruling. I suppose it's fair enough, seeing as they could THEORETICALLY be used for purposes other than piracy.

    It's a bit like how they sell bongs in the US with stickers on them saying they're for 'tobacco only'. :)

  • Nikanoru #16 2 years ago

    Well, even in the case of ScummVM I would bet a large fraction of people using it don't own the scumm games they play on it.

    Jonsaan is right on the money, really. Everybody I know who owns a DS has an R4 or similar. Everybody. And with a few rare exceptions, none of them buy any games. I'm all for freedom to do with your own stuff what you want, and sticking it to the man, etc, but this really is a clear-cut case of people being cheap thieving motherfuckers in large numbers.

    Before anyone asks, no, I don't own one.

  • Jamiesan #17 2 years ago

    @canIdoyabombsforya - The ps3 DID cost around $850 here when it first came out!

    @Retrend - there are a few gems in there. I still enjoy messing around with pocketphysics if I've got 5 mins to spare. I know, "small things amuse small minds" but I can't help it!

  • Lachsgeruch #18 2 years ago

    IF it's acctually illegal in france (or even the EU) to sell a product (read: console), which doesn't allow programming right out of the box - well it'll be a nice frensh spring in court for EVEN Microsoft and Sony.

    I can't seem to find the program-editor in my xbox/ps3! ;'(

  • joe90 #19 2 years ago

    @jonsaan - That doesn't matter, that is not the point. You cannot rule on what someone may do with a flash cart. Thats like saying ban baseball bats as I could club you to death with one, Or I can play baseball.. No matter what the loading of pirates to HB, the law has to take a 100% objective view, not one swayed by nintendo shouting pirates they are all pirates.

    Like the video recorder, or tape recorder.. Those also we going to till the music/film industry.

  • Murton #20 2 years ago

    This is a good thing for consumers as it's being recognised that technologies that may be used for piracy also have uses that are totally benign, unfortunately France also passed laws recently allowing the creative industries to pursue and persecute people who use filesharing software, which also has benign uses so what we have is one precedent where the creative industry has complete control over what happens with its output and another where the consumer is being given the benefit of the doubt and the industry is accused of overly aggressive and anti-competitive behaviour with regard to its product.

    Unsurprisingly Nintendo intend to appeal against the ruling and then the loser at that case will appeal and so on until it reaches the highest court willing to listen. The DS will probably no longer be sold by the time this case finally ends and someone is served the order to cease and desist, but whether it's the company producing the "flash carts" or Nintendo and their "locking out" behaviour that deemed illegal remains to be seen.

  • YourMessageHere #21 2 years ago

    Unusually, I'm right behind French law in this case. The sooner hardware companies stop wasting their money on enforcing this sort of thing and just accept that, sooner or later, people will find ways to make their hardware do what they want, the better. It amazes me that they waste so much effort in trying to stop them, really, especially since the iPhone has come along and shown what a big selling point an open platform is.

    @ Jonsaan & Nikanoru

    Oddly, I know several DS owners too (although I don't have one). Of them, most are fully law abiding, and two have flashcarts; because they love games, both of them buy games, and they also pirate them - often the obscure Japanese releases that never make it outside Japan. Both of them, incidentally, have PSPs and a mix of retail games, homebrew firmware and emulators. Are they therefore scum, out to subvert and destroy the very fabric of the software industry? I would say not. The whole issue isn't as conveniently black and white as you and those who think as you do seem to enjoy depicting it.

  • grussbarbar #22 2 years ago

    @joe90
    I think an analogy with lockpicks fits this case better. Say a leading manufacturer of doorlocks encounters a company that sells lockpicks that target specifically it's locks, would you think they wouldn’t complain about it?
    Nintendo spent considerable money on developing the console hardware. I think it's reasonable to want them to protect their investment with copy-protection measures. These devices circumvent those copy-protection measures.

    Let me put it this way: a baseball bat is primarily meant to play baseball with. These flash carts are primarily meant to circumvent Nintendo’s copy-protection measures. Whether you then use it to play homebrew or pirated games becomes irrelevant, just as you say. But that's not the point (at least not to me); the point is that Nintendo's copy-protection measures are seemingly rendered void by the carts.

    And yes, if you buy a Nintendo DS, you should be allowed to do anything you want with it, even hack it or blow it up. It’s becomes iffy when you make money by selling tools to hack it though.