Lik-Sang speaks – accuses Nintendo of steamrollering case, says judge was inappropriate
Legal might of Nintendo sees unfair play claim.
Following Nintendo’s trumpeting of its recent court case against Hong Kong exporter Lik-Sang, the company’s founder has come out fighting against the gaming giant’s tactics and claims.
Indeed, according to an open letter from an unnamed director, Lik-Sang states that the case was not decisive, merely a summary judgement and not a final ruling. What’s more, since the suit was issued, Lik-Sang has been taken over, meaning that Nintendo’s beef is not with the company as it stands today.
Lik-Sang, popular with hobbyists and importers, claims that the judge was out of his depth, claiming that his speciality is maritime law. The letter also points out that no intellectual property specialist was employed to oversee proceedings, and that all IP counsel came from Nintendo, arguably irregular given that Nintendo was the plaintiff.
What’s more, there are also claims that several top-flight, market-listed publishers have used Lik-Sang to buy some of the Game Boy back-up and development tools Nintendo is complaining about. It then states that there is no copy protection in Game Boy and GBA software, making Nintendo’s claims that it circumvented protection false.
Here is the letter in full:
‘I hope with the following information I am able to give you a little insight into the recent happenings and about the misleading press release of Nintendo.
Before the Nintendo Press release has been distributed, I have delivered a Notice of Appeal to Nintendo, as well as to the High Court of Hong Kong. I am not exactly sure why Nintendo's press department didn't mention a word about it.
The Judgment was not a real trial yet, it was a Summary Judgment with a single Judge. Usually such Summary Judgments are in case of bounced bank checks where no trial is needed and everything is straightforward.
With all due respect to the High Court of Hong Kong, but no Intellectual Property (IP) specialist was assigned to this case. Already at the first hearing the Judge mentioned that it's a pity Hong Kong has no IP specialist anymore and that he finds the Copyright Law of Hong Kong very confusing. After some research, it looks like the Judge is a specialist for maritime laws. He made several comments during the hearings which seemed to observers like this was his first IP case ever.
The Summary Judgment itself was based on the Section 273 of the Hong Kong Copyright Ordinance about "circumventing a copy protection". No copy protection exists in the Gameboy or Gameboy Advance game cartridges. The Judge didn't hear a specialist or at least an independent third party expert opinion - he took it for granted from the explanations by Nintendo that there is a copy protection.
Furthermore, the Judge found that "by analogy with drugs, it [the section 273] is not aimed at the drug addict but at the drug trafficker". I fail to understand his logic, as this would mean that the drug store selling the injection needles to drug addicts or maybe even the manufacturer of the container where the drug addict keeps the drug could be held liable?
After legal actions in the USA against Bung Enterprises in the late nineties (for selling and manufacturing videogame development and backup equipment) this was the second Court Judgment ever regarding products of this nature. Regarding information made available to me in the Court Room, the case against Bung and its US distributor Carl Industries Inc was brought to an end in their disfavor by Bung not complying with Court Orders and not paying ordered penalties. The actual judgment was written by Nintendo representatives, without the Judge properly going through the arguments. The legality or illegality of the products in question has therefore never been argued in a real trial anywhere in the world. A serious trial, with competent Judges, is now definitely needed to settle the question once and for all. This is why I have decided to appeal.
I am not happy about the direction where this is heading, neither are supporters and legitimate users of the tools. Again, I have to stress once more, that the very same hardware under attack is used by thousands of hobbyist users and even professional developers for legitimate purpose. Very embarrassing for Nintendo: even the large publisher, who made the original game used in Court for demonstrating purpose, bought hundreds and hundreds of Flash Cartridges from my company for beta testing. And so did numerous other top 10 publishers listed in the stock market.
The products I have sold are not circumventing any copy protections, same as a Floppy Disk Drive and a 3.5" Disk doesn't – in fact there is no copy protection existing, as commonly known by the gaming industry.
I completely understand Nintendo's fight against piracy, but I believe they are aiming at the wrong targets. With Digital Media and the Internet nowadays, publishers will have to change their strategy. They just can't win the fight against the Progress without removing our primary rights: presumption of innocence and the right for backup. Nintendo doesn't need to prove you are a pirate anymore, it is assumed you all are if you have the technical means to copy.
Of course, piracy is a blight that need irradiating as it robs hard working games firm of monies they deserve. However, there needs to be a balance between enabling legitimate use of devices that can also be used to inappropriately copy and modify code.
Arguably it would be better if this were an established industry body, not a company that once issues cease and desist orders to twelve-year-old Pokemon fansite webmasters.’
More on this, as it breaks.
Indeed, according to an open letter from an unnamed director, Lik-Sang states that the case was not decisive, merely a summary judgement and not a final ruling. What’s more, since the suit was issued, Lik-Sang has been taken over, meaning that Nintendo’s beef is not with the company as it stands today.
Lik-Sang, popular with hobbyists and importers, claims that the judge was out of his depth, claiming that his speciality is maritime law. The letter also points out that no intellectual property specialist was employed to oversee proceedings, and that all IP counsel came from Nintendo, arguably irregular given that Nintendo was the plaintiff.
What’s more, there are also claims that several top-flight, market-listed publishers have used Lik-Sang to buy some of the Game Boy back-up and development tools Nintendo is complaining about. It then states that there is no copy protection in Game Boy and GBA software, making Nintendo’s claims that it circumvented protection false.
Here is the letter in full:
‘I hope with the following information I am able to give you a little insight into the recent happenings and about the misleading press release of Nintendo.
Before the Nintendo Press release has been distributed, I have delivered a Notice of Appeal to Nintendo, as well as to the High Court of Hong Kong. I am not exactly sure why Nintendo's press department didn't mention a word about it.
The Judgment was not a real trial yet, it was a Summary Judgment with a single Judge. Usually such Summary Judgments are in case of bounced bank checks where no trial is needed and everything is straightforward.
With all due respect to the High Court of Hong Kong, but no Intellectual Property (IP) specialist was assigned to this case. Already at the first hearing the Judge mentioned that it's a pity Hong Kong has no IP specialist anymore and that he finds the Copyright Law of Hong Kong very confusing. After some research, it looks like the Judge is a specialist for maritime laws. He made several comments during the hearings which seemed to observers like this was his first IP case ever.
The Summary Judgment itself was based on the Section 273 of the Hong Kong Copyright Ordinance about "circumventing a copy protection". No copy protection exists in the Gameboy or Gameboy Advance game cartridges. The Judge didn't hear a specialist or at least an independent third party expert opinion - he took it for granted from the explanations by Nintendo that there is a copy protection.
Furthermore, the Judge found that "by analogy with drugs, it [the section 273] is not aimed at the drug addict but at the drug trafficker". I fail to understand his logic, as this would mean that the drug store selling the injection needles to drug addicts or maybe even the manufacturer of the container where the drug addict keeps the drug could be held liable?
After legal actions in the USA against Bung Enterprises in the late nineties (for selling and manufacturing videogame development and backup equipment) this was the second Court Judgment ever regarding products of this nature. Regarding information made available to me in the Court Room, the case against Bung and its US distributor Carl Industries Inc was brought to an end in their disfavor by Bung not complying with Court Orders and not paying ordered penalties. The actual judgment was written by Nintendo representatives, without the Judge properly going through the arguments. The legality or illegality of the products in question has therefore never been argued in a real trial anywhere in the world. A serious trial, with competent Judges, is now definitely needed to settle the question once and for all. This is why I have decided to appeal.
I am not happy about the direction where this is heading, neither are supporters and legitimate users of the tools. Again, I have to stress once more, that the very same hardware under attack is used by thousands of hobbyist users and even professional developers for legitimate purpose. Very embarrassing for Nintendo: even the large publisher, who made the original game used in Court for demonstrating purpose, bought hundreds and hundreds of Flash Cartridges from my company for beta testing. And so did numerous other top 10 publishers listed in the stock market.
The products I have sold are not circumventing any copy protections, same as a Floppy Disk Drive and a 3.5" Disk doesn't – in fact there is no copy protection existing, as commonly known by the gaming industry.
I completely understand Nintendo's fight against piracy, but I believe they are aiming at the wrong targets. With Digital Media and the Internet nowadays, publishers will have to change their strategy. They just can't win the fight against the Progress without removing our primary rights: presumption of innocence and the right for backup. Nintendo doesn't need to prove you are a pirate anymore, it is assumed you all are if you have the technical means to copy.
Of course, piracy is a blight that need irradiating as it robs hard working games firm of monies they deserve. However, there needs to be a balance between enabling legitimate use of devices that can also be used to inappropriately copy and modify code.
Arguably it would be better if this were an established industry body, not a company that once issues cease and desist orders to twelve-year-old Pokemon fansite webmasters.’
More on this, as it breaks.
Companies:
Nintendo
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