News Article

Nintendo To Appeal French Flash Card Case

Posted by Jon Wahlgren

Company "extremely disappointed" with ruling

DS flash card manufacturer Divineo won big in France earlier this week, and Nintendo is not happy about it.

A lawsuit filed by Nintendo against the company was thrown out in Paris’ Criminal Court earlier this week, with the judge saying that Nintendo should adopt a more open development system to allow anyone to create applications – like a PC, where piracy apparently is nonexistent.

In a statement issued to MCV, Nintendo declared their intention to fight the power:

Nintendo is extremely disappointed with the decision by Paris’ Criminal Court to find Max Louarn, his company, Divineo, and other co-defendants not guilty in the criminal case involving the sale and distribution of game copying devices.

Nintendo welcomes the Prosecutor’s decision to Appeal the Judgment. As a victim Nintendo will join his Appeal. Nintendo supports action against the distributors of such devices.

Nintendo maintains that infringement of its intellectual property rights, on its trademarks, software, its technical prevention measures and its video games is causing damage to the whole video game 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.

Divineo already owes Nintendo €45m in damages from an earlier, more successful prosecution in Hong Kong. Good luck getting that money, Nintendo.

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User Comments (33)



nintendogamerftw said:

Wow, these piracy freaks are just people who want to make a quick buck from someone elses ideas. Get a job pirates!



Percentful said:

Why is it all these judges keep ruling the Pirates not guilty? BTW what the heck is egg grog? Not something I would drink.



AVahne said:

wow, weren't judges supposed to be fair and smart? apparently not in this case....i doubt the court even knows what those flash carts are used the most for



maka said:

They recently lost another case in Spain too. The thing is, these flash cards are just like any other type of writable media that have many legal uses too: Video recorders, CD-Rs, etc... there are too many precedents in history that support these rulings...

The flash cards add legitimate uses to their consoles like using homebrew software, playing music, etc... and those are things that no console manufacture should be allowed to limit. They should go after the real pirates, the ones actually distributing illegal software...

Also, even if flash cards were mostly used to pirate games, that shouldn't matter. What are CD-Rs mostly used for? Pirating music. But that doesn't make them illegal. Should computers and harddrives be illegal too because people use them to pirate programs, games, music and movies??

The problem is they want to control what's used in their consoles and that is just a stupid approach. Just look at the approach of Apple or Google with the iPhone and Android. Opening up their consoles to let people freely develop and users freely choose what they want to use their consoles for would be a great idea. It's not just about piracy. Now we have a system where if a user wants to get say a notebook application they have just one choice and it's not free, while if you've got a flash cart there are a few free ones you can choose between. And that's just one example....



HipsterDashie said:

@maka - So what you are trying to say is, because people already pirate music, then it's okay for them to do a similar thing with games?



maka said:

@SoulSilver IV: Did I say piracy is ok? Where?

I'm just saying that flashcards are in the same boat as all those other media types which can also be used to pirate stuff. A DVD-R can be used to watch a pirated movie, but it can also be used to back up my computer, watch a free movie someone posted on the net or many other things. An iPod can be used to listen to the music I purchased legally on the go, or to listen to pirated music.

A flash card can be used to run legal homebrew software, play legal music/videos, etc... They're just adding functionality to the console that gives you power to do more with it. What you actually do with it, is your own choice. If you choose to run pirated software then it's your own choice. Just as no one is forcing you to download pirated movies off the net with your computer, and no one is saying computers should be illegal because they allow you to break the law, then by the same reasoning, flashcards should also be allowed because they don't brake the law themselves.

BTW, I'm glad judges seem to agree with this reasoning in many countries, my own included
And here's a link:

This is too similar to the lawsuits caused by video recorders back then:,_Inc. This is the interesting bit:

"The companies therefore opted to sue Sony and its distributors in the U.S. District Court for the Central District of California in 1976, alleging that because Sony was manufacturing a device that could potentially be used for copyright infringement, they were thus liable for any infringement that was committed by its purchasers."

And this is part of what the court said:

"[There must be] a balance between a copyright holder's legitimate demand for effective - not merely symbolic - protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses...."

So, they lost... and thanks to that you can enjoy all sorts of recording devices nowadays...



Ren said:

yeah, thats a weird ruling. Sounds like the usual naive view of games where the judge just doesn't understand what it is and how it works.

I think there are always a few on sites like this that would love to righteously declare that they use their flash carts for great homebrew, music and games they bought and backed up but, uh... seriously; I don't even know how to make a 'backup' of games that I bought, but I sure as heck know how to find lots of em' online and dump them on a cart.
it's just really cheap and convenient, even if you know it's not cool. I would never try to defend the practice, though, because know it's like 1 in 10 that actually uses them for legal means, and destroys profits especially for the smaller game companies.

It's like using an ice cream cone to eat peanuts and whipped cream out of - if you know what it's for, don't even try to lie and say you don't use it that way.



Ren said:

@ Maka

I'm sorry but this is really not the same issue. I see the parralel you're trying to draw, but a nintendo (or PSP or Wii or whatever console) is NOT the same as a PC or a VCR/DVD player. Those are devices that are inherently designed to be recording and copying material as part of their basic function. They are sold as machines that do those things inherently as well as many others (PC's essentially "compute for persons" which includes a million tasks and welcomes messing with by their very nature).
Video game consoles are made as machines that pull all other functionality out besides games, with a control made for games on a format sold and licensed through the console manufacturer to be used just for that machine.
That kind of burning and opening up of use only began when games started to need enough storage to use separate media and finally more universal media that hackers have tinkered with enough to use for other things.
A Nintendo machine just by being a popular one doesn't put them under any obligation to open it up to all kinds of other uses (as we've all seen with their crappy online approach). It's their machine for their media, and their choice.
Most flash carts are shaped like DS games specifically to be used in a DS, which is a design and property of Nintendo. It's not a DVD, tape or standard computer storage device that you can stick in anything.

No matter what creative, exciting, wonderful new uses are dreamed up for use its just not a platform that was made for free and open use and molding by the general public. Sure, that sucks, and like some judges say, maybe it should be, but right now it's Nintendos product and Nintendo's choice.

Until you can easily write your term paper or burn a disc inside a Nintendo, I don't think that those arguments really hold up.



Token_Girl said:

This ruling makes sense, because the flash card company is not actually pirating games. They may know very well that most people who buy their flash cards use them for that purpose, but they're not breaking the law themselves until they're dumping roms.

Is anyone else surprised the case was successful in HK? That's like the Mecca of DS piracy. Given how laissez-faire their economic system is, I'm very surprised.



maka said:

@Ren: The parallel I drew holds because the example of video recorders is very similar to consoles.. TVs were not designed for you to record stuff, but video recorders were released which added this functionality. Your argument is like saying that because a TV uses a proprietary signal plug, no one can make devices that connect to that TV and that's just plain wrong.

BTW, I don't think there's a problem in using their proprietary card design to archive interoperability. Flash Manufacturers must reverse-engineer the consoles and they do so just to be able to produce a product that extends the functionality of the console. From what I've read, that is not illegal.



maka said:

It's also interesting to note that the court in this case sees Nintendo's actions to limit who can develop for their consoles as an unfair restriction, and urged them to open their devices so people can develop freely.



Ren said:

a tv is not a device that is re-designed from the ground up with different media exclusive to it every 3 years or so, by a single company. It's a basic technology that delivers a general image with sound and should be pretty much available for altering by anyone.

I'd fully agree with that take if all the consoles makers suddenly decided to pool their resources and make a general gaming device called "the Console" that could be useable by all, but as it stands these consoles are all just proprietary products put out by different companies with a couple years lifespan. Have you ever told someone "I"m going to go play my gaming console"? No, because it's a Nintendo or a Sony and that means something specific, you can't just stick any game in it and play without lots of hacking and messing around and you certainly wouldn't try to put a PS3 game in a Wii or 360. They're not universal machines meant for user made media. You can stick a DVD in any DVD player and it should work (usually).

Sure it took a little while for them all to work when the tech was new, but they were meant for ultimately watching any movie. There will never be a universal gaming console. The development of consumer tape/DVD recorders was made in conjunction with the same manufacturers of TV's, not random tinkerers and small companies trying to bank off cheap copies. (sure the final choice of video format was driven by consumers of Porn with VHS over Beta but the tech had already been made official with permissions as with HD-DVD/Blu-Ray)

Besides I still think it's silly to act like any single console should somehow be obligated by it's mass appeal alone to allow anyone to put out anything they want for it. That's like when people try to blame a woman for her own rape because she was dressed a certain way; Just because people like something and it is appealing to take advantage of doesn't mean it's ok to do so because we think it looks inviting. If something is privately owned it's privately owned. there is a clear difference. Just making an analogy, BTW, I hope it doesn't offend.



maka said:

"It's a basic technology that delivers a general image with sound and should be pretty much available for altering by anyone."

It wasn't always this way, and the fact that content providers decided to lawsuit video manufacturers is telling. Times have changed, and tv is universal now, but I still think Nintendo's position now is similar to what the content providers faced back then when they decided video technology was hurting them.

Interoperability is the key word here as it was then. As long as flash carts have legitimate uses, they'll remain legal (and they should).

BTW, I don't think this is just about piracy. Piracy is an excuse, but if it was only about piracy Nintendo would try to fight the pirates directly. But first, it is easier to go for the flash carts because they're fewer, and second, they don't want to let people run whatever software they want on their machines. They'd rather sell you something that you can easily get for free in a legal legitimate way. That is unfair, and I'm glad they're being stopped.

Edit: Also, Nintendo probably makes a lot of money from licensed developers and developer kits, so I can see how if anyone could develop for the machine they could see it as hurtful, but I think the advantages of opening the systems are enough. One of the reasons the iPhone has been so successful is the fact that anyone can download the sdk for free and start developing. I've been programming for the Mac as a hobby for many years, and when Apple switched to Mac OS X and started giving the developer tools for free it was an amazing change. And that has made the number of software being developed for the mac increase by a lot. Nintendo makes the best and most polished games for their products anyway, and there's no way a homebrew game is ever going to compete with them or take away significant sales. I just don't see what their problem is...



bestbuck said:

@maka : That's a very good point you have. I in no way am for Piracy, Nintendo just want everything there own way.



fortius54 said:

A couple of really good poins made here. Is there not a patent issue here. If these carts look like a DS game, there should be some grounds for Nintendo to have an argument on the design patent.



maka said:

Well, I think the patent thing is a bit of a grey area. That's usually what companies in that position use, but as long as it is done to add interoperability to a product, it should be safe.

Note, that if other companies were not allowed to use a device shaped as a DS cart to extend the functionality of the machine, they wouldn't be allowed to make peripherals for Nintendo products either, like Classic controllers which have to imitate Nintendo's plug so they work with Nintendo's wiimote, etc...



Ren said:

You make a great point about content providers since early television probably was bankrolled by the networks for it's distribution then became a generally accepted tech over time.
I see where you're coming from, totally, I still think it would apply a little more firmly if the lifespan of a particular console was longer and more stable. As it is a given Nintendo/Sony only last a few years, usually (though the DS has had real staying power it's still destined to be replaced with a new machine pretty soon.) Hence I don't really see how a court should be able to force them to open it up under the law.
I guess thats the diffuculty in a case like this; when do you start to regard a system as a benchmark for a standard machine thats open to fair use? The DS may be reaching that point but I'm not sure.

So far, though, I still see most consoles and their respective media as their own copyrighted form that deserves protection (unless they fail to properly patent any of it)

I see that it's not just about piracy, but I think piracy is the biggest and easiest target. And it's true the ROM distro would be near impossible to pin down. N seems to be kind of coy about their family friendly image and I can imagine thats some part of not wanting anything to run on it, but running other homemade software from a DS is just kind of stupid anyway (IMO). It's so limiting that to use hardware made for games that only has a few odd buttons is pretty dumb; but yeah, I guess as good as some rogue programmers are it could quickly become an image problem that Nintendo would be much better off without.



HappyHappy said:

What!? I don't understand this. I thought piracy was illegal to begin with and court is saying this is okay doesn't make much sense.



Josephvb10 said:

OK, in my country, the DS comes with flashcards included.

And not only in my country but worldwide. Nintendo is in deadly war against piracy and know they are losing and always lost.

Most people visiting this site have a flashcard or has been hacked their Wii so accept it once.



Percentful said:

@Josephvb no offense, but that has got to be one of the stupidest thing I have heard for awhile. No, maybe some people on this site have a flashcard, but hardly any have hacked their Wii or pirated. In case you hadn't noticed, many people here speak against pirating.



Ren said:

Seriously, I think Joseph is not getting what a flash card is if he thinks a DS anywhere comes packed with one. Are you confusing it with an SD card or something? And it's true that it seems most people here don't have them, I don't see where the assumption comes from that they do. It's only those that do have them that comment on these topics, myself included. But I would never think about hacking my wii, the risk of loss is too great for me.



thaneds said:

WOW! Extremly stupid of the judge! a 50/50 chance. nintendo does state that when you buy their product you bought what is entitled to use in your own way and all that you do are not condoned by nintendo... this means that if you download even their own games with money even, that you are entitled to be able to be arrested... see.. 50/50 do not condem me for my opinion. just think of it....



KiroX777 said:

i think it is right for it to be legal, they didnt do anything illegal in the first place. yea people use it illegally sometimes but that is not why it was built. its the same thing, when nintendo first came out with wiimenu 4.0 it only stopped wads from being used, you got to keep everything else but that was the only thing that was stopped. i think that was nintendos friendly way of saying 'you can keep your homebrew but no piracy'. of-course hackers didnt listen and they bypassed that too, it wasnt until 4.2 when nintendo decided to go hard. but even that was hacked. so i think they have a right to get the flash cards taken out of the picture because we all know what people WILL use it for, and that is piracy. but the lupol is that the flash card itself is not illegal. so idk thats a tough one, i do wish nintendo would lighten up the restrictions so we can have a dsiTwitter or dsiFirefox(so i can have tabs, or download things off the web like a psp can)



maka said:

Anyone that says homebrew on the DS is stupid hasn't seen ZXDS ( ), which I'd say is the best ZX Spectrum emulator in any platform.

BTW, ZX Spectrum emulators are legal and most of its games are legally available from the World of Spectrum site ( ) and that site even has the consent of Amstrad who now owns the Spectrum

Another excellent hombrew game is: Powder ( ) a great rogue-like game specifically designed for portable consoles.

Those two alone justify the purchase of a cart in my opinion. And there are many more good apps and games too. Which to me proves that a flashcart has enough legitimate and legal uses to remain legally available.

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