Nintendo has won its second legal victory of the month in Australia, with a seller of R4 flash cartridges in the country ordered to pay the Japanese company over AUD$500,000 in fines.
Local tech distributors RSJ. IT Solutions, which had been selling the cartridges – which allow for the use of both legally-acquired homebrew and illegally-acquired pirated games on a Nintendo DS – must cease the sale of all carts immediately, and relinquish all remaining stock and all promotional material associated with them.
In addition to the corporate fine, two men named individually in the case, Patrick & James Li, must also pay AUD$100,000 in penalties.
The decision is both absurd and wrong, and akin to fining importers of VHS recorders because they can play pirated movies.
The R4 cartridge, and other mod-chips, have a completely legitimate purpose – the running of homebrew software. Nintendo might want to control all use of the consoles its customers buy – but there’s no reason why our government, and our legal system, should help it do that. Prosecute people transferring pirated software, by all means – but not those whose real crime against Nintendo is creating a wider use for its machines.
Kotaku notes a supposed difference between this case and the 2005 mod chip case where they were declared to be legal:
It’s important to note that, while in 2005 an Australian judge decreed that the use of mod chips in home consoles was legal, he did so on the grounds that the chips themselves were unable to copy or pirate games. The R4 differs from this in that, by being compatible with a PC, it allows users to download pirated games off the internet and easily copy them directly onto the cartridge.
That is not a meaningful distinction. The other chips enabled pirated games to be copied to a console, exactly the same as the R4 – and in both cases, the point is that they, like the internet, like VHS recorders, like CD-writers, like DVD burners, like bittorrent, like the POSTAL SERVICE… have a LAWFUL USE. They can be used for piracy, but they have legitimate purposes as well. This week’s decision is inconsistent with the earlier one – which actually made sense.
I hope the Lis appeal.