Nintendo MISSLYCKAS med att stämma säljare av flashkort i frankrike!

PRESS RELEASE: Ruling of the Paris High Court on Nintendo DS Linkers and why this is an excellent ruling

Summary of ruling

On its December 3rd 2009 ruling, the 13th chamber of the Paris High Court (intellectual property spe******t) found Divineo SARL France not-guilty in a case opposing Nintendo France and Japan. This case was related to the distribution of ?linkers? (Cyclo Evolution etc) for Nintendo DS and DS Lite. This decision follows other similar rulings in lower courts in other regions including Canada and Spain.

This decision has very promising far reaching implications that go beyond this specific case and defends the rights of all individuals as well small to medium sized companies in various industries.

Background of industry and parties involved

Nintendo is one of three main producers in the video game console market which also includes Sony and Microsoft. However, out of the three producers, both Microsoft and Nintendo have recently been found guilty of abusing their dominant market positions in exerting monopolistic market actions. It is acknowledged that attempts to establish total control of any market is an anti-competitive practice and can result heavy fines for those companies involved in such practices.

Divineo is a major player in the distribution of videogame accessories, with the same customer base as Nintendo, i.e. all the major retailers in this sector. Divineo is also a partner to a number of video game software producers who create games for Nintendo console and has also contributed to the success of some of the biggest third party game launches on the Nintendo DS.

Divineo SARL was sued by Nintendo in Hong Kong for the sale of linkers. However, Nintendo did not sue the biggest retailers at the respective time who were also selling linkers. These retailers included but are not limited to Amazon.com (U.S.A) and Yahoo.co.jp (Japan). Unable to defend itself due to a lack of finances which focused on such a remote destination, Nintendo managed to obtain a decision by default to fine Divineo SARL a fee of approximately 50 Million Euro?s. The respective amount was obviously absurd and lacked any objectivity as no sales took place to or from Hong Kong.

Nintendo appears to commonly deploy a tactic in which its selects to sue companies in remote jurisdictions as the opposing party usually lacks the financial means to defend itself. This can result in Nintendo gaining a decision by default and avoids the company having to face European law in which the opposing party can defend itself and be represented fairly.

Understanding the benefits of Linkers

Linkers (also known as flash carts) are accessories for Nintendo DS consoles that allow the loading of ?homebrew? software (games, applications) created by independent developers. Thousands of homebrew applications are available by development communities, making the homebrew catalog wider than the one offered by Nintendo. The respective catalog features a far more diverse range of software and functionality than offered by the game focused catalog of Nintendo. For example, the homebrew catalog enables functionalities such as multimedia playback, GPS, agenda and diary setting, various utilities and original game concepts.

Arguably seeing the benefits of the homebrew developments (such as media viewing), Nintendo produced an accessory largely inspired by linkers called the DSVision which is distributed solely in Japan. However, this product is not as powerful as linkers and the majority of software choice is controlled by Nintendo. Unfortunately, it also fails to provide compatibility with software created by individuals who are not working for Nintendo, not paying licensing fees or simply those applications deemed unwanted by the Japanese firm. Moreover, Nintendo also added functions that were first available on linkers, MP3, and video players to its new console (DSi) by default. Thus, Nintendo explicitly appreciate the value of homebrew functionalities by effectively offering their own versions by default on their new console.

Nintendo failing to respect inter-operability exception

Although it was obvious that none of the defendants were pirates, Nintendo constantly accused the defendants of piracy during its communication on the case. However, despite these false claims of piracy, the main charge filed from Nintendo was that the linkers sold by the defendants are breaking security protection on the console that prevents access to programs not approved by Nintendo. However, Divineo stated that if this protection exists from Nintendo, then it is illegal and abusive. The reason being is that the respective protection does not support European laws that prohibit a security protection from preventing a legitimate owner of a product from using independent software as they wish. Even if producers of linkers broke an eventual protection to access the console, they are entitled to do so to allow the inter-operability of their device with Nintendo console.

Based on this logic, it is clear Nintendo does not respect aspects of the French and European law especially in relation to the inter-operability exception. Instead of protecting its games, Nintendo simply blocked the access to its console. Its goal is not at all to protect its customer, like Nintendo stated in court. Nintendo follows a simple economic goal: Any company who wants to create a product for its console will have to pay them.

Why is the exception of inter-operability rightful and just as well as this ruling?

Nowadays, whether in video games or in the vast majority of industrial sectors, it is near impossible to create a company at the base of the industry. The launch of a new videogame console is financially impossible. The accessories business, like many others, gravitates around products created by companies with near-monopoly status. The inter-operability exception protects the existence of numerous companies which, without it, would be facing a death-sentence by the simple will of those corporate giants. It also protects the end-users by giving them a choice. It is the whole spirit of this law and its exception.

We can easily understand the reasons why the inter-operability exception is beneficial to not only independent developers, accessory producers and ultimately you, the individual:

http://en.wikipedia.org/wiki/Bob%27s_Game

Nintendo decided to ?ignore? this game, therefore only linkers can make it run. If linkers were illegal, this game, and hundreds of others, would not exist, simply because Nintendo says so. It seems right to us that an independent developer has the right to freely create software for a console or a computer without having to request the authorization from a company in a dominant position.

http://blog.seattlepi.com/microsoft/archives/186112.asp

Microsoft decided to ?kill? memory-cards from Datel by locking them out. If Datel is not able to bypass this protection, it is impossible to offer this unique product that Microsoft customers ask for.

In fact, if this law did not exist, Microsoft could protect Windows access, and could legally refuse access to other browsers such as Google Chrome. In fact they were severely fined because they attempted to. Any hugely dominant company or group of companies in a monopoly-type position, could control what end users can do with the product they purchased. We can easily imagine the disastrous consequences and abuses that could quickly happen if this exception did not exist? Just like we can appreciate the innovations and additional functionalities that independent developers bring to all leading products of a sector.

These excellent laws and ruling protect the users, because it gives them free-choice on the use of their products. It protects companies as well because it lets them exist without needing an agreement from the giants of their industry. This law is democratic, fair, moral and follows what French and European consumers expect.

Nintendo problem and the fight against piracy

We understand that linkers, like MP3 players, DVD burners, multimedia HD/readers and numerous other products sold legally in all major retailers worldwide, can be used by pirates for reasons beyond their main legitimate uses. However, Linkers are devices that allow fantastic innovations on Nintendo DS. The creativity of independent developers brings daily added value to this console, and increases sales of the console without any doubt.

Unfortunately, Linkers are misused by pirates for illegal purpose, but there again laws were passed and prove that lawmakers understood the new challenges end users like companies are facing. New laws like the French HADOPI reinforce the power to fight piracy, because there lie the problem for Nintendo and any other software developer/distributor. Lawmakers are not going to sue Apple for its iPod but instead the real pirates that download or make available copyrighted music. The same laws apply to counter the true Nintendo (or other editors) games pirates. Not the one Nintendo is suing, which are simply legal accessories distributors, but the ones that pirate their games, share them, and download them on the Internet.

Looking to the future

Divineo France stopped distributing linkers in 2007, although they were extremely popular among specialized independent shops, which target advanced console users. For those advanced gamers, this accessory is a must have to use their Nintendo DS to its full potential. We are looking for a solution that allows Nintendo console owners to launch the numerous independent applications, while blocking pirated games. This solution is complex because once more the protection from Nintendo is inadequate and makes the development of a safer linker solution hard or even impossible. We are making progress and hope to soon offer all independent developers a true solution to use and distribute their homebrew freeware/shareware on Nintendo DS consoles, while still creating many videogame consoles and electronic accessories.

Thank you for your support and Happy New Year 2010

Divineo Team