Nintendo’s attacks against anything capable of copying a video game are not just a historical curiosity.  The company, along with the rest of the video game industry, continues to sue these copying devices to this day.  The most recent lawsuit is against the R4, a Nintendo DS cartridge that fills many of the same purposes as the old Game Boy Advance flash cartridges.  The device bypasses the protection on the system and uses a micro SD card to run pirated games, homebrewed games, or anything else capable of working on a Nintendo DS system (playing music, programming, etc.).  Despite being fully aware that the device skirted the edge of legality, Japanese retailers continued to stock and sell the device to high demand (while explicitly not explaining what the device does).  Of course, Nintendo was not happy about this state of affairs, and proceeded to sue the companies that make and distribute the device.  54 other software companies joined the lawsuit.

Under the precedent set by the Game Boy Advance flash cartridges these devices are probably illegal.  It is easy to see why the video game industry wants them off of the market.  However, the consumer base clearly loves these devices.  The R4 apparently sold very well in Japan, and with the lawsuit the price of the device skyrocketed (see another article linked from this one).  Consumers seem to believe that there exists plenty of legitimate uses for the R4, not just playing old, illegally obtained games.  Consumers write homebrew applications that allow the DS (and also the PSP, although this is not the subject of the lawsuit) to do an incredible number of things.  The author even notes that he has meet people who jumped into game design by learning on hacked DS’s and PSP’s.

Clearly, the consumer base enjoys using the R4.  And while Nintendo might be perfectly within their rights to stop them, it could create massive ill will.  Being told that all of the hard work you put into a homebrew application that you created without breaking copyright law is bound to make anyone angry.  With a huge portion of the video game industry getting behind this lawsuit, it makes an easy target for the ire of the community.  The video game industry, it seems, has not learned its lesson.  Despite already angering many consumers with their attacks against any form of copying or emulation, it continues to press lawsuits.  If this path continues, then the industry risks turning into the next RIAA.

This article, by Chuck Cochems, is an interesting look into the mind of a video game consumer.  This particular consumer is annoyed at video game companies (“corporate fat cats”) for their unending bashing of video game emulation.  He feels that they are simply out to make as much profit as possible, and do not really care about what is right or legal.  However, what starts as just a long rant against the industry morphs into the author’s attempt to find a legitimate, legal defense for video game ROMs.  After discarding all of the traditional defenses, he turns to the Betamax case, and focuses on what he refers to as “the personal use defense.”  Through his reading of the decision, the author comes to the conclusion that ROMs made for personal use could not be infringing.  He also applies this personal use logic to the DMCA, claiming that since a personal use could not possibly be commercial, the DMCA does not apply to copies made by consumers (he also notes catch-22 inherent in the DMCA, that nobody can legally provide the equipment to make a legal backup copy of a video game).  So, there does exist a legal means for a consumer to make backup ROMs of a video game.

While the author makes some valid points, a lot of his logic seems to fall flat.  The Betamax case cannot be applied to space-shifting quite as easily as Cochems might think, even if it only applies to personal use.  And not every personal use is non-infringing; it is clearly possible to infringe on someone’s copyright without selling or trading the infringement.  Also, he simply waves the DMCA away with a wand and the magical words “personal use.”  This is an unlikely scenario at best, and downright wrong at worst.  However, the true power of this article is to demonstrate how important this issue is for a significant segment of consumers.  It is clear while reading this article that Cochems cares passionately about video game emulation, if only on an ethical level.  He is “sick and tired” of the attempts by the video game industry to stamp out emulation, and he is looking for any legitimate argument to ensure the legality of video game ROMs.  The video game industry wants to avoid creating a consumer base that predominantly resembles Cochems.  Otherwise, they could find themselves in the same position as the RIAA.