Summary:

Spanish shopkeeper Alejandro Fernandez is on trial amid accusations that he is aiding piracy by selling jailbreak cartridges for Nintendo devices. But he’s trying to fight back by leading a legal action against the Japanese games giant that accuses it of breaking European law.

Mario Mario

Mario MarioAs one of the most successful brands in the history of the video games industry, Nintendo fiercely guards its intellectual property — whether it’s protecting Mario’s image, or safeguarding Wii software. As a result, it’s not often that you witness somebody taking them on. But Spanish computer store owner Alejandro Fernandez is doing precisely that as he attempts to win a two-year battle over accusations that he’s aiding piracy.

The 31-year-old is in court today in Spain, accused of breaking the law by selling memory cards that jailbreak the Nintendo DS handheld.

The “M3 DS Real” cards, which are widely available in China and online in other countries, allow users to run unofficial software on their Nintendo handhelds. So far there’s a lot of homebrewed code for the system, such as emulator software and PDA programs, and users can also use it to port their movies, TV shows and music onto their device. Users simply connect the card into their PC, transfer the chosen programs or files to it and then plug it into their DS.

But the crucial issue, argue Nintendo’s lawyers, is whether the cards can also be used to pirate games. They say that these cards deliberately break proprietary Nintendo systems in order to run stolen code — and that’s why Fernandez faces six counts in criminal court, including theft of intellectual property, theft of industrial property and disclosure of industrial secrets.

Although the charges carry a potential 23 years of jail time and fines of up to €840,000 ($1.24 million), the public prosecutor is arguing that — if found guilty — Fernandez should only receive up to three and a half in prison and be ordered to pay fines of €12,960 ($19,100).

Fernandez, for his part, has argued that he is not responsible for what his customers do with their cards, and that hardware hacking — not piracy — is the objective for buyers.

“What the company is doing in this case is to assume what my clients are going to do,” he told Spanish daily Le Nueva España. “I assume that people are responsible.”

“The device itself does nothing, it is hardware. We sell it completely empty. It’s a kind of memory where the user gets what he wants and the user has the choice to do what he wants. There are plenty of free applications… People have it in their heads that everything that you get off the Internet is pirated, and it is not.”

To win his fight Fernandez is doing more than employing rhetoric. Along with a number of other store owners in Spain, he is filing a countersuit against Nintendo, arguing that the design of its cartridges violates European law.

Specifically, they say that Nintendo’s argument that the only reason to copy its cartridge design would be to copy the software inside — the core of their accusations against him — is actually in breach of European trade harmonization laws. Those laws, used to ensure interoperability and prevent anti-competitive behavior, state that it’s illegal to use a physical design (such as a proprietary CD design or disk) to “gain a monopoly on technical solutions”.

It’s a bold gambit from the small guy. But the truth is that however you look at it, the legal status Fernandez’s case is tricky.

Spanish courts have previously ruled that non-commercial file sharing is legal, but modchips, the bits of hardware used to modify a games console, currently exist in a gray area. They are illegal in some countries, such as in the U.S., but legal in others (such as in Canada). Some countries ban modification in general, but allow specific instances: Australia, for example, allows modding to circumvent region encoding. Nintendo has won similar cases in the UK and the Netherlands.

But even where such actions are illegal, it’s proven incredibly hard for courts to actually find modders guilty. Last year Matthew Crippen, a student and hotel worker from southern California, stood trial for Xbox modding — but the case collapsed when it emerged there was no evidence of Crippen actually using pirated games.

Fernandez is taking a far more aggressive stance than most of those who have found themselves in a similar position, even accusing Nintendo of “blackmail”, in an interview with Spain’s El Pais newspaper. Certainly, if the lawsuit filed against Nintendo succeeds, then it could have ramifications across the continent — but in the meantime, his future is in the lap of the court — and right now, it could go either way.

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