Following last week's triumphant announcement by Nintendo that it had won a victory over Hong Kong based mail order retailer Lik-Sang, one of the company's founders, Alex Kampl, has spoken publicly about the ruling.
We were also contacted this week by Pacific Game, the company which took over the running of Lik-Sang.com last November, who pointed out that the current court case does not affect the mail order service as it stands now, since Pacific Game and Lik-Sang.com are not named as defendants in the case.
We have reproduced Kampl's statement in full below - it highlights a number of key facts which were not made clear in Nintendo's announcement, most notably the fact that this was a Summary Judgement rather than a full trial, and that a Notice of Appeal has already been served by Kampl.
While Nintendo's comments last week suggested that this was the end of a story, it would now appear that it's only the beginning - and the final outcome may be of vital importance to how the industry as a whole approaches piracy, especially in the pirate hotbeds of the Far East such as Hong Kong.
Alex Kampl's statement
I hope with the following information I am able to give you a little insight into the recent happenings and about the misleading press release of Nintendo.
Before the Nintendo Press release has been distributed, I have delivered a Notice of Appeal to Nintendo, as well as to the High Court of Hong Kong. I am not exactly sure why Nintendos press department didnt mention a word about it.
The Judgment was not a real trial yet, it was a Summary Judgment with a single Judge. Usually such Summary Judgments are in case of bounced bank checks where no trial is needed and everything is straight forward.
With all due respect to the High Court of Hong Kong, but no Intellectual Property (IP) specialist was assigned to this case. Already at the first hearing the Judge mentioned that its a pity Hong Kong has no IP specialist anymore and that he finds the Copyright Law of Hong Kong very confusing. After some research, it looks like the Judge is a specialist for maritime laws. He made several comments during the hearings which seemed to observers like this was his first IP case ever.
The Summary Judgment itself was based on the Section 273 of the Hong Kong Copyright Ordinance about "circumventing a copy-protection". No copy-protection exists in the Gameboy or Gameboy Advance game cartridges. The Judge didnt hear a specialist or at least an independent 3rd party expert opinion - he took it for granted from the explanations by Nintendo that there is a copy-protection.
Furthermore, the Judge found that "by analogy with drugs, it[the setcion 273] is not aimed at the drug addict but at the drug trafficker". I fail to understand his logic, as this would mean that the drug store selling the injection needles to drug addicts or maybe even the manufacturer of the container where the drug addict keeps the drug could be held liable?
After legal actions in the USA against Bung Enterprises in the late nineties (for selling and manufacturing videogame development and backup equipment) this was the second Court Judgment ever regarding products of this nature. Regarding information made available to me in the Court Room, the case against Bung and its US distributor Carl Industries Inc was brought to an end in their disfavor by Bung not complying with Court Orders and not paying ordered penalties. The actual judgment was written by Nintendo representatives, without the Judge properly going through the arguments. The legality or illegality of the products in question has therefore never been argued in a real trial anywhere in the world. A serious trial, with competent Judges, is now definitely needed to settle the question once and for all. This is why I have decided to appeal.
I am not happy about the direction where this is heading, neither are supporters and legitimate users of the tools. Again, I have to stress once more, that the very same hardware under attack is used by thousands of hobbyist users and even professional developers for legitimate purpose. Very embarrassing for Nintendo: even the large publisher, who made the original game used in Court for demonstrating purpose, bought hundreds and hundreds of Flash Cartridges from my company for beta testing. And so did numerous other top 10 publishers listed in the stock market.
The products I have sold are not circumventing any copy protections, same as a Floppy Disk Drive and a 3.5" Disk doesn't in fact there is no copy-protection existing, as commonly known by the gaming industry.
I completely understand Nintendos fight against piracy, but I believe they are aiming at the wrong targets. With Digital Media and the Internet nowadays, publishers will have to change their strategy. They just cant win the fight against the Progress without removing our primary rights: presumption of innocence and the right for backup. Nintendo doesnt need to prove you are a pirate anymore, it is assumed you all are if you have the technical means to copy.