R4 cart ban: More details emerge

By Wesley Yin-Poole Published 29 July, 2010

What, exactly, is illegal?

More details have emerged from the High Court ruling that R4 cartridges have been banned in the UK.

Eurogamer has obtained a copy of the High Court of Justice Chancery Division's judgement in favour of Nintendo against defendants Playables Limited and owner Mr Wai Dat Chan.

The case concerned "a number of different types of devices imported and dealt in" by Playables.

Devices are defined as those which "enable Nintendo DS users to play unlawful copies of Nintendo DS games which they have downloaded using the internet".

That's what Nintendo means when it says "game copiers".

But what, exactly, has been made illegal?

According to the report, the R4 DS, M3 DS, DS One Supercard, DSTT, DS Linker, Acekard, CycloDS Evolution, N5 and EZ devices were under scrutiny.

Some are still listed on Playables' website.

They contain either built-in memory or a further slot of their own which accommodates a micro-SD flash card.

They also contain circuitry, software and data that enable them to pass the tests performed by the Nintendo DS to verify the game inserted is genuine.

The case concerned the Copyright Designs and Patents Act 1998, and Nintendo's claim that games were copied into the random access memory in the course of using Playables' devices.

The judgement reveals the steps Nintendo takes to prevent loading unlawful copies of its games:

The shape of the connector arrangement of the slot on the DS and the corresponding shape of the game cards designed to fit into it; the boot up software permanently stored on the Nintendo DS, which checks for the presence on an inserted card of the Nintendo Logo Data File (NLDF) and prevents execution of programs present on the inserted card if the NLDF is not detected; and the use of shared key encryption technology and scrambling to enable the DS to detect whether game cards are authentic.

Are all "effective technological measures" taken by the Japanese company to protect itself.

The judge found in favour of Nintendo because it proved the devices circumvented them.

So, what does this mean?

It means that it is now illegal to manufacture, import, distribute or sell in the UK any device that is "primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of the ETM employed by Nintendo to protect its copyright".

Simply owning a relevant devices is not illegal. But it's probably best not show it off to your mates.

Apparently, Nintendo has seized "more than 165,000 game copiers intended for" Playables. That’s a lot.

The Hon Mr Justice Floyd, who made the ruling, wrote: "Each game card has the code relevant to the NLDF installed on it. I cannot see how it can be said that Nintendo authorised the copying of this into RAM.

"The accused devices are much more than the reel-to-reel tape recorders in CBS v Amstrad (1998).

"They are templates for infringement."

Playables had argued that it did not know or have reason to believe that the devices would be used to make infringing copies.

It also said there are lawful uses for the devices, such as playing homebrew games.

The judge said neither argument had merit.

"It needs to be kept in mind that the focus of this requirement is on circumvention.

"The fact that a device may be used for a purpose which does not involve infringement of copyright does not mean that the sole intended purpose is not the unauthorised circumvention of a technical device."

Wai Dat Chan did not appear and was not represented at the ruling.

Chan did not respond to requests for comment from Eurogamer.

Picture of Wesley.

About Wesley Yin-Poole

Wesley is Eurogamer's news editor. He likes news, interviews, and more news. He also likes Street Fighter more than anyone can get him to shut up about it.

Read more articles from Wesley by visiting the Wesley Yin-Poole archive page.

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Comments (52) 2 years ago

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

  • irve77 #1 2 years ago

    oooh had to happen sometime

  • Fab4 #2 2 years ago

    I would have thought most people already had bought them by now.

  • Slint1000 #3 2 years ago

    I haven't sadly. Kinda with I had...

  • bad09 #4 2 years ago

    "The fact that a device may be used for a purpose which does not involve infringement of copyright does not mean that the sole intended purpose is not the unauthorised circumvention of a technical device."

    I don't really care as I only play Mario or scrabble on the bog with my girlfriends DS so didn't bother with one of these cards anyway, but surely the fact it does actually have other uses other than piracy means you can't assume what people use it for?

    It was the same with PSP. Custom firmware has loads of uses other than piracy but Sony still actually blocked people from buying from PSN purely because they had custom firmware. They actually lost me as a PSP/PS1 customer on PSN because of their obsession to stop C/F.
    Edited by 2 at 29/07/10 @ 15:15

  • irve77 #5 2 years ago

    trouble is any device that enables homebrew will have to circumvent the copy protection.

    something like the PSP had a great homebrew community going at one point but i've not heard the same about the DS and anyone i know that has an R4 uses it just to play copy games.

    It's a shame that companies don't take a open stance when it comes to homebrew and take away any legitimate reason to flash/chip a console or buy something like an R4

    I've got an old Xbox that is chipped running XBMC making me and anyone else with a similar set up the only people in the world still using an Xbox .. if an improved version of XBMC came out that took away game playback i wouldn't care it's a side effect rather than the purpose

  • Nuronv #6 2 years ago

    @Fab4
    Its true that the DS is nearing the end of its life cycle and most people who would be interested in such a thing will already own one however Nintendo are making sure a clear message is sent out before the 3DS is released.

  • roquey Verified Lead Quality Assurance Tester and Compliance Specialist, Universally Speaking #7 2 years ago

    well atleast they havnt made owning the R4s illegal, cos theyd have to ransack some of the devs in this country, theyre bound to have some :) but if you go to japan or a friend does no doubt they can get them fore you if you dont pay them, then its not selling is it. :D

  • CallousB #8 2 years ago

    Err..should Eurogamer really be providing a link to a site selling items that are now illegal?

  • mallocks #9 2 years ago

    roquey, it would still be importing. Unless you're moving to Japan entirely just to get an R4, but that seems a bit excessive.

  • Dolly #10 2 years ago

    I bet Raoul Moat had an R4 card on him for entertainment purposes whilst holed up. All those cartridges clattering around would have been a right give away.

  • roquey Verified Lead Quality Assurance Tester and Compliance Specialist, Universally Speaking #11 2 years ago

    hmm true but what if there was one in your ds on teh way back? are they gonna ask to check it?

  • Eighthours #12 2 years ago

    Playables had argued that it did not know or have reason to believe that the devices would be used to make infringing copies.

    Chinny reckon!

  • el_pollo_diablo #13 2 years ago

    Devices are defined as those which "enable Nintendo DS users to play unlawful copies of Nintendo DS games which they have downloaded using the internet".

    So if, for argument's sake, someone copied their ROMs from a friend rather than downloaded using the internet, would they be in the clear?

  • alcides #14 2 years ago

    I put a rock to block my door but they pushed really hard and robbed the place anyway. This is not FAIR!!
    I demand compensation! *throws a tantrum* *wimpers*

    judge: alright, ALRIGHT!

  • varsas #15 2 years ago

    @el_pollo_diablo: The key point is that the device circumvents the security features of the DS. If the R4 allowed you to play copies of the games without getting around the security then it would be okay.

  • X201 #16 2 years ago

    If homebrew matters to you, support a company that makes an Open Source console, like the GP2X, instead of giving Nintendo and Sony your money and then moaning when they close the loopholes.

  • Hobo #17 2 years ago

    "enable Nintendo DS users to play unlawful copies of Nintendo DS games which they have downloaded using the internet"

    So could the loophole be that it's down to prosecutors to PROVE the games were downloaded over the internet?

  • SteelPriest #18 2 years ago

    have they forgotten about EDGE then?

  • lucky_jim #19 2 years ago

    @SteelPriest

    Looks like it, but I'm sure it's effectively covered too- sounds like a staggeringly broad definition to me. The way I read the EG article, basically anything that's the same shape as a legit DS cart is covered.

    Still, if this judgement didn't get the makers of the Edge card, I'm sure Tim Langdell would have been sniffing around them like a horny stray dog before too long.

  • varsas #20 2 years ago

    My reading of the article points to any device that circumvents the security on the DS is illegal whatever the shape.

  • alcides #21 2 years ago

    it does not circumvent the security, but strolls right through it barking with laughter and disdain.

    What were nintendo's lawyers doing the last 6 years anyway?

  • Incarta #22 2 years ago

    Indeed. It doesn't matter what games you have on it or how you got them; if the device you're using plays the games by tricking the security, it's illegal. Read the article.

  • patchbox360 #23 2 years ago

    "The fact that a device may be used for a purpose which does not involve infringement of copyright does not mean that the sole intended purpose is not the unauthorised circumvention of a technical device."

    That also applies to a usb stick which can be used to hold a pirated film. Also the 'sole intended purpose' depends on the person using the device.

  • PearOfAnguish #24 2 years ago

    "But it's probably best not show it off to your mates."

    If that's a worry I'd suggest your main concern would be finding some friends that aren't going to tell on you to Nintendo.

  • hiddenranbir #25 2 years ago

    Guilty until proven innocent! Woo! We'll assume you'll use it illegally so we'll just not let you have it!
    Edited by 1 at 29/07/10 @ 18:07

  • IneptPercy #26 2 years ago

    I makes me wonder if there is a way around this, I know when I chipped my old xbox to run XBMC the chip I got was perfectly legit as it has a linux bios on it, by all means I flashed it with something more suitable. On the same front could they not ship 'blank' DS cartridges to which you could flash them.

    I do wonder if this will stop similar devices on the 3DS or will it again take them years to stop it.

  • MoGamer2006 #27 2 years ago

    So imagine there's a company makes a special key that lets you unlock any car door and turn the ignition, claiming it's intended for people who've lost their car keys.

    Unsurprisingly, car theft soars - would the legal eagles on here defend the import and sale of such a device?

    And @alcides - I presume you're saying the copy protection on the DS should be better, right? Problem is, your hilarious analogy doesn't really work - in the eyes of the law, that would still be theft.

  • cattypat #28 2 years ago

    Being able to get around game "security" has been possible for 30 years with cartridge loaders and boot disks.

    I guess the amount of money Nintendo thinks it could be making made the bean counters sad, so off to the courts to create blanket wide, hard to define, impossible to enforce laws.

    I don't mind piracy getting shafted for once, but these kind of laws will soon be encouraging other manufacturers to jump in and bamboozle judges into creating all sorts of crazy laws. I wouldn't put it past some corporations to attempt to outlaw modders, jailbreaking and even personal backups. All for your own good, of course.

  • President_Weasel #29 2 years ago

    Information wants to be free.
    Game developers want to pay their mortgage and maybe buy some shoes or something.

  • penhalion #30 2 years ago

    Well, and yea I know I'm gonna get minused for this, I have no reason to bother buying a 3DS now. I didn't buy enough games for my DS but, those games I did buy I pushed onto a single R4 cart and took with me instead of the loose cards, which are so frickin' easy to loose.

    I'm kind of going off all things nintendo these days anyway. They simply don't make enough technical progress with their new consoles and I didn't find Mario Galaxy 2 all that much fun to play. It quickly becomes a lesson in how to design stupidly hard and frustrating game levels.

  • Aradiel #31 2 years ago

    Aww, man. This now means that Datel can't sell Action Replays for the DS anymore.

  • chrisjm #32 2 years ago

    if only there was another way of magically getting nintendo ds games, like buying them from a shop.

  • Rack #33 2 years ago

    Penhalion the 3DS supports that feature by default, no-one knows how the copy protection will work, but in principal you won't even need an R4 for that purpose.

    I'll still miss the ability to download cheat codes though.

  • jonsaan #34 2 years ago

    The only way to play Manic Miner the Lost levels is on a flash cart. Boo!

  • IneptPercy #35 2 years ago

    I do wonder how many lost sales are really lost sales.

    EG, my brother and his other half have very little money and my nephew has a DS and an M3 card and has never paid for a game.

    To put it simply if he couldn't have got the M3 he would never of had a DS as they just can't afford the games.

    Now there is 2 ways of looking at it:

    -25 games soldas he hasn't paid for them

    or

    +1 DS sold because he can pirate games.

    By all means I am not saying this makes piracy right, but in this case they haven't lost a single game sale but gain one console sale. Yes by all means if you can't afford it you shouldn't play it etc, but the amount of pressure on my brother with 'keeping up with the Jone's" etc I can understand why it has been done.

  • orangpelupa #36 2 years ago

    hm Acekard also banned?

    isn't that flashcart only blank just like dvdwriter with blank dvd?
    to be used, need download the software/firmware from acekard website or from AKAIO.

    @IneptPercy
    thats what happened on my country ^^

    GBA when no pirated gamecard = noone buying
    GBA when there;s pirated gamecard = only a few buying (becase piratd carts still about 20USD @ game)
    NDSi when not pirateable = noone buying
    NDSi when pirateable = selling a lot

    PSP 2000 = a lot buy it. even some gamestore specially sell refurbished psp 2000.
    PSP 3000 with new board = not much gamer prefer it. The gamestore also telling the gamer the negative of this new board will a hassle to play pirated games.

    but from time to time, there sometime come out exceptionally good games, then some gamer in my country will buy that original game (if the game can be found someone/gamestore selling it on our country)
    Edited by 1 at 30/07/10 @ 03:09

  • smelly #37 2 years ago

    Good..

  • smelly #38 2 years ago

    @IneptPercy - whereas i have no idea on the profit margins of the DS. You DO understand that a lot of consoles (not necessarily the DS - i have no idea) are sold at a loss, with the intent of making the money back via software arent you?

    I wont go into what a cunt you're being by enjoying the software that someone took years to make for your entertainment and which you give them nothing for.. because apparently on the internets you're a hero for doing that...

    Also how much did the piracy card cost? Isnt it around the price of 3 or so games? He's poor enough to pay these scumbags money for their copying system - but not enough to use that money to give the people who are making the entertainment he's enjoying?

    Edited by 1 at 30/07/10 @ 03:46

  • SG #39 2 years ago

    Glad I got my XL-compatible M3i Zero when I did.

  • SG #40 2 years ago

    Devices are defined as those which "enable Nintendo DS users to play unlawful copies of Nintendo DS games which they have downloaded using the internet".

    So if, for argument's sake, someone copied their ROMs from a friend rather than downloaded using the internet, would they be in the clear?

    There's an application whcih lets you make a backup of your own card, either by using the slot 2 or using a wireless router whilst the DS transfers the data to the PC then load onto the flash card. I've done it myself so I can take my game saves with me.

    This IS legal under UK law, but it still makes the devices illegal due to the mass of people who download from the internet, which was the law's intention.
    Edited by 1 at 30/07/10 @ 15:13

  • kopykatt #41 2 years ago

    Maybe I'm being naive here but I don't understand people complaining about not being able to afford games is the reason they pirate. If I can't afford games I don't get games. I hate being skint. Seriously, what is the difference between downloading illegal copies of games and giving yourself a five finger discount at HMV?

  • Caimbeul #42 2 years ago

    Someone could use a kitchen knife for an illegal purpose. You could even bludgeon someone with a tin of beans. Should these items be made illegal too? in fact almost anything can be used in an illegal way! Maybe we shouldnt have PC's phones, cameras etc?

    I dont condone piracy but they need to tackle the people pirating the games, not hardware that is the only way for indoe developers to develop for the platdform

  • SG #43 2 years ago

    Maybe I'm being naive here but I don't understand people complaining about not being able to afford games is the reason they pirate. If I can't afford games I don't get games. I hate being skint. Seriously, what is the difference between downloading illegal copies of games and giving yourself a five finger discount at HMV?

    Because you're taking from a company, not shooting a magic ray gun that creates a duplicate of said game at HMV. Not that I condone people pirating everything, but yours is a flawed analogy.
    Edited by 1 at 30/07/10 @ 15:16

  • aine #44 2 years ago

    @smelly:

    You DO understand that a lot of consoles (not necessarily the DS - i have no idea) are sold at a loss, with the intent of making the money back via software arent you?

    The DS isn't. Nintendo is the only company that always makes a profit on its hardware.

    Also how much did the piracy card cost? Isnt it around the price of 3 or so games?

    Not even close. You can get some of the shitter ones for as little as £2.50 from Hong Kong (with free shipping).

    @orangpelupa

    hm Acekard also banned?

    isn't that flashcart only blank just like dvdwriter with blank dvd?
    to be used, need download the software/firmware from acekard website or from AKAIO.

    It still has internal firmware, just like all the cards currently on the market. If you put it in your DS without a MicroSD card inserted, you'll get a "no card" error message - it's executing code on the DS to display that message, which means it's still bypassing the console's security.

    That said, it wouldn't surprise me if cart manufacturers start offering genuinely "blank" carts for the UK market which have no internal firmware, and you just have to download it and flash them yourself. Unless that "shape as a form of copy protection" thing really holds up, which would be an extremely dodgy precedent IMO.

  • Rev.StuartCampbell #45 2 years ago

    "The only way to play Manic Miner the Lost levels is on a flash cart. "

    Actually it works rather nicely on emulator, except that you have to remember to use save states instead of it saving your progress automatically.

  • Rev.StuartCampbell #46 2 years ago

    "Maybe I'm being naive here but I don't understand people complaining about not being able to afford games is the reason they pirate. If I can't afford games I don't get games. I hate being skint. Seriously, what is the difference between downloading illegal copies of games and giving yourself a five finger discount at HMV? "

    If you don't understand the difference between those two things, you're not so much "naive" as "illiterate".

  • smelly #47 2 years ago

    Quote : "The DS isn't. Nintendo is the only company that always makes a profit on its hardware. "

    I cant find ANY stories backing that up. In fact the ONLY information i can find tells me that nintendo at one point made $6 for every wii sold, but i'd imagine the awful exchange rate on the yen has changed that.

    So unless you can provide proof on this, complete with manufacturing/distribution/etc costs in yen and how much profit they make per DS after exchange rate/manufacturing/distribution/shipping/retailer fees/etc.. I'll presume you're just making stuff up to justify you being a pirating cunt.

    Edit : Also - even it it was true - nintendo may not need the money, but the developers who spend 2 years making the games sure as hell do. You think it's free to hire out office space and pay 10+ people for a year or two to make a game?
    Edited by 1 at 30/07/10 @ 19:01

  • BonzoBanana #48 2 years ago

    Lets face it people aren't very nice. Most of us in this country live quite comfortable lives but we are indifferent to the massive suffering elsewhere on the planet like starvation in africa. You only have to see inside an abbatoir to see the real indifference people have to other creatures suffering. Considering our indifference to major issues I don't think copyright infringement ranks that highly. I spend a lot on original software but its probably more about enjoying the presentation of it and knowing it will work without problems rather than the moralty of it. Its obviously in Nintendo's interest to make it hard to buy these devices and I'm sure there efforts will have a knock on effect on availability. I don't like the BBC but I'm forced to pay over £140 or risk being kidnapped and detained for what is a non essential service. I pay taxes but a recent news story showed a primary school headteacher was paid close to a 1/4 million pounds which the majority objected to. There are plenty of cases of legalised theft like this. If your rich enough you can almost avoid tax altogether by bending the rules. The fact is if people can conveniently get out of paying money they do. I was a debt collector in the past and came across many people, quite respectable people sometimes that seem to think it was ok not to pay their bills with little or no reason some of the time. Often if they didn't pay the debts were written off as court cases were too expensive. Many people built up huge credit card debts living wonderful lives and then declared bankruptcy. Again their debts written off but no future credit.

    The moral of the story is people will always try and get out of paying money if they can do so conveniently.

  • Ashcroft #49 2 years ago

    What the fuck are you blathering on about?

  • Marshall2008 #50 2 years ago

    Maybe the need for piracy devices would decline if nintendo and it's devs stopped charging 30 quid for the equivalent of fucking flash games!
    Edited by 1 at 31/07/10 @ 09:14

  • IneptPercy #51 2 years ago

    "@IneptPercy - whereas i have no idea on the profit margins of the DS. You DO understand that a lot of consoles (not necessarily the DS - i have no idea) are sold at a loss, with the intent of making the money back via software arent you?

    As much as you I can't say for sure if they make a profit on each DS, can you say for sure they don't?. With that I got him a cheap (broken) DS lite and fixed it so it only costs £37 on total.

    I wont go into what a cunt you're being by enjoying the software that someone took years to make for your entertainment and which you give them nothing for.. because apparently on the internets you're a hero for doing that...


    I don't steal DS's off children so I am getting no enjoyment out of what he is doing.

    Also how much did the piracy card cost? Isnt it around the price of 3 or so games? He's poor enough to pay these scumbags "money for their copying system - but not enough to use that money to give the people who are making the entertainment he's enjoying?

    I believe with a 2GB micro DS card it cost £18.

    As you may see, I wasn't trying to say its right or wrong, just some of the reasons why it happens and how 1 download doesn't equal one lost sale.

    Yet again its all very well saying if you can't afford it then don't do it, but they didn't want him to be the only one at school without one, you may not remember the time but kids can be cruel and I am sure its getting worse than when I was young.

    Yet again I am not saying its right, but surely you can understand how people can justify it to themselves?

  • Captain_Jono #52 2 years ago

    I'm completely in favour of this ruling. That a device expressly designed for illegal purposes might have legal applications is not an argument that holds weight. For reference see lockpicks, flick-knives and AK-47s.