[p2p-research] Fwd: [fcforum] Spain - Nintendo fair circumvention decision

[Michel Bauwens]

---------- Forwarded message ----------
From: Eddan Katz <eddan at eff.org>
Date: Tue, Nov 24, 2009 at 4:05 AM
Subject: [fcforum] Spain - Nintendo fair circumvention decision
To: fcforum at list.fcforum.net


 Should the FCForum link to/issue a press release on the Spanish Nintendo
decision from Friday, affirming the private right to copy?
http://www.bufetalmeida.com/554/movilquick.html

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http://techdirt.com/articles/20091120/1152097027.shtml
Spanish Court Dismisses Complaint From Nintendo Against Counterfiet DS
Cartridges, Since They Add Functionality
 It seems that Spain is a country that is pretty consistently figuring out
that we shouldn't just throw out all other rights the second "piracy" is
shouted by the entertainment industry. We've noted recently that the country
hasn't just rejected three
strikes<http://www.techdirt.com/articles/20090623/1918135337.shtml>and
declared
broadband a basic
right<http://www.techdirt.com/articles/20091118/0900316987.shtml>,
but has also ruled, repeatedly, that personal file sharing is
legal<http://www.techdirt.com/articles/20090531/2312145072.shtml>.
And now, it even has judges who realize that "anti-circumvention" laws
should have limits as well.


As you probably know, one of the key things that the entertainment industry
has pushed for throughout the world is "anti-circumvention" clauses in
copyright law. In the US we have this in the DMCA and it's a total mess. The
law basically says that any attempt to circumvent (or to make or sell a tool
to circumvent) DRM on a digital work is a violation of the copyright law --
*even if* making a copy of the content in question wouldn't violate
copyright law.

Spanish copyright law includes an anti-circumvention clause, but as Leo
Martins <http://www.leomartins.org/> alerts us, a judge in Salamanca, Spain
has taken a much more nuanced view of it in a case pitting Nintendo against
Grupo Movilquick, who produced alternative cartridges for Nintendo DS
devices. The judge's
ruling<http://translate.google.com/translate?js=y&prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fwww.bufetalmeida.com%2F554%2Fmovilquick.html&sl=es&tl=en>(translated
from the
original <http://www.bufetalmeida.com/554/movilquick.html>) appears to find
that the alternative cartridges do, in fact, circumvent Nintendo's DRM and
can be used for "pirating" games, *but* also extend the utility of the
devices for perfectly legal purposes. For that reason, the judge dismissed
the lawsuit<http://translate.google.com/translate?js=y&prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fwww.publico.es%2Fciencias%2F271423%2Fcartuchos%2Fmodificados%2Fnintendo%2Fds%2Fpirateria&sl=es&tl=en>(translation
from the
original<http://www.publico.es/ciencias/271423/cartuchos/modificados/nintendo/ds/pirateria>)
noting that it doesn't make sense that the law would be intended to say that
only Nintendo can expand the functionality of its devices, and the fact that
Nintendo doesn't offer similar functionality shouldn't preclude others from
doing so. There are areas where Nintendo can still bring a lawsuit, such as
for patent and trademark issues, but the judge notes those should be dealt
with in a civil court.


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