I don’t mean to pick on Nintendo specifically, what I say applies equally to all game manufacturers. Nintendo was just fresh in my mind due to a recent R4 court case they won in England.

On Monday, the U.S Copyright Office ruled that jailbreaking an iPhone or other mobile device will no longer violate federal copyright law. Previously the DMCA and other laws made it a federal crime to remove digital locks that would allow you to run “unauthorized” software. In the case of the iPhone this allowed you to run apps that were not bought from iTunes.

Every three years, the Librarian of Congress and the Copyright Office entertain proposed exemptions to the DMCA, passed in 1998. The act forbids circumventing encryption technology to copy or modify copyrighted works. In this instance, Apple claimed the DMCA protects the copyrighted encryption built into the bootloader that starts up the iPhone OS operating system.

But the Copyright Office concluded that, “while a copyright owner might try to restrict the programs that can be run on a particular operating system, copyright law is not the vehicle for imposition of such restrictions.”

So how does this relate the R4 carts? The cartridge allow one to bypass the security locks on your DS to play “unauthorized” software. Now you may say the same thing Apple did. That the only purpose in breaking these locks is to play “pirated software”. This is possible but so is running home brew software. If I might make a car analogy, this would be similar to saying that you car should only be allowed to travel from home to work, otherwise you might rob a bank.

Jailbreaking, the EFF maintained, constitutes fair use of the firmware tied to the operating system.

Regulators agreed, declaring Monday that “the activity of an iPhone owner who modifies his or her iPhone’s firmware/operating system in order to make it interoperable with an application that Apple has not approved, but that the iPhone owner wishes to run on the iPhone, fits comfortably within the four corners of fair use.”

This is exactly what an R4 cart does. It bypasses the OS security to allow “interoperability” of programs not approved by Nintendo. One thing that was very clear in the iPhone case was that capability to use the jailbreak for unlawful purposes does not negate its use for lawful ones. Yes an R4 could be used to pirate games, but it can also run homebrew games and add functionality to the system that is not provided by the vendor.

If this ruling were applied to game systems such as the Nintendo DS pirated ROM sites would still be illegal and anyone caught downloading from one would be criminally liable, as they should. However the lawful running of homebrew and personal backups (yes this is legal under fair use) should not be restricted.

If i may leave you with one last argument in favor of technologies that break digital locks if you are unconvinced so far. Who owns the hardware? When you paid $150 for your DSi was that a rental fee or did you buy that hardware? That is ultimately where the argument goes. When you rent an object you have to use it within the restrictions that the owner gives. When you buy an object you can do anything you want to it. Would you be ok with Ford telling you what you can do with the vehicle you purchased?

Whether you agree with me or not I would love to hear your comments.

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2 Comments

  • Dave

    I think that one has to think big picture here. It’s a company that builds hardware and licences stuff to run on it. For the most part, console software runs well and is of good quality. Companies that do all this engineering deserve a chance to earn money on that process. Pirating is the only reason to circumvent this and it’s a lousy argument.

  • The engineers earned their money when they sold the console. What I choose to do to modify it after that is not for them to decide. Yes you should go after those that pirate the games. But you should not punish those who only want to run their own software on the hardware they bought.

    Piracy is a red herring distracting folks from the real issue. They want to break “Right of First Sale” law and control what you do with your property after purchase.

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