Playing Devil’s advocate to the R4 ban

MCV has an article describing the recent ban on R4 cards – devices that allow backed up, or more likely illegally copied games on the DS handheld console – here:

http://www.mcvuk.com/news/40216/R4-ban-extends-to-all-DS-copy-devices

And why I don’t think that the ban will make much difference at all.

Sites still selling R4 cards

http://www.ukr4adapter.com/productShow.asp?id=572
http://mobymemory.com/products/MobyMemory/2Gb-Bundle-R4-Revolution-For-DS-NDS-NDSL.asp?gclid=CM6gnLO-k6MCFREslAodjTSkmA
http://www.r4dscards.com/
http://www.ukdigitalstore.co.uk/ which even tells you that illegal games will be pre-loaded for you!

“The genuine Kingston’s microSD cards filled with latest games pre-loaded in the micro card for instant use on any game cards that we are selling. 2/4/8GB available.
please confirm the game card that you are using from the drop down menu
Games include :
–Call of Duty: Modern Warfare Mobilized
–Runaway: The Dream of the Turtle
–Mario & Sonic at The Olympic Winter Games
–Astro Boy: The Video Game
–Need for Speed: Nitro
….
view more games in the product detail”

What was the legal judgement?
OK, I have read the summary judgement now – thanks for to JS in the comments section of this story:
http://www.mcvuk.com/news/40216/R4-ban-extends-to-all-DS-copy-devices?m=posted#comments

for the link:
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1932.html

which I might not have otherwise found – and a couple of things spring to mind.
1) the judgement refers to devices that fit in one slot
2) flashing the DS seems again a real possibility; the NLDF would then not be needed, if indeed the argument for one breaching copyright, etc, stands up.
3) Section 25 refers to copyright protection applied to data that is not a computer program, refering to art assets, sound, etc, and that it is these that are key to the argument.

Also, I am intrigued over the “partial settlement” mentioned in the early paragraphs…

How about making a device that doesn’t fit into only one slot, but both (DS Phat and Lite only); a whole new legal case might be needed to then include these, as each individual component might not entirely allow all the required clauses to be confirmed. Or a device that allows programs to be run, but not data to be copied; really little use for playing backup games. Or a device that doesn’t do one of the required things in the judgement; i.e. contain the NLDF, etc. For example, a GBA slot device that stores backup game files, which can be legal to create, with a flashed DS to enable play. These was the original route prior to the more convenient Slot 1 devices. These GBA devices also had the purpose of allowing MP3 files etc to be played, so weren’t primarily for game copying, and didn’t need the NLDF files.

Flashing devices could be provided free (no commercial purposes) to enable these other devices to then allow game copies. Also, it would be interesting to see if there were issues related to an individual consumer being prevented from making backups, which they have a legal right to do…

Hey, if the defendant hadn’t actually been selling these devices, but giving them away… Who’s up for predicting how quickly some bright spark putting up all the schematics, etc, and a “how to” to build your own R4 card for free – i.e. not for commercial purposes –  now that they cannot legally be sold. Both approaches could, ironically, get round the judgement.

The ultimate effect of this judgement will be almost negligible for determined tech-savvy users, but will reduce dramatically the “casual” copier, and probably provide a very small increase in purchased games. This is probably the best effect, really, as I don’t want piracy any more than anyone in the Industry. Those that know how to flash their DSs are more likely to be the ones who are genuinely interested in hacking and homebrew. Interesting to note, though, that I know quite a few professional game developers who have these devices. And not all of them are as stringent as I in not having illegal roms installed.

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