Funnily enough I've been looking at the details of the recent judgement against Playables Ltd here in the UK to see what potential consequences there are for homebrew.
http://www.bailii.org/cgi-bin/markup.cg ... /1932.html
Firstly I'm not a lawyer so anything I write here should be checked with a lawyer before being used as a defence.
The racetrack logo they refer to is the standard Nintendo logo used as part of the authentication check (
http://www.google.com/images?q=nintendo ... ack%20logo ) the summary judgement linked above says this in relation to it.
The copyright work in issue under (c) is, however, so rudimentary that I consider that it is arguable that copyright does not subsist, particularly as what it is relied on is a modification of a pre-existing work. It follows that summary judgment does not extend to this work.
The section of gbatek you've linked refers to the GBA header which doesn't apply to the DS.
http://nocash.emubase.de/gbatek.htm#dscartridgeheader is the relevant one. The check process during boot is well explained there.
The claims Nintendo is making are somewhat worrying.
Nintendo has implemented a range of security measures designed to prevent the loading and playing of unlawful copies of its games. In the Particulars of Claim at paragraph 21, Nintendo relies principally on the following measures:
i) the shape of the connector arrangement of the slot on the Nintendo DS and the corresponding shape of the game cards designed to fit into it;
ii) the boot-up software permanently stored on the Nintendo DS which checks for the presence on an inserted card of the Nintendo Logo Data File ('NLDF') and prevents execution of programs present on the inserted card if the NLDF is not detected
iii) the use of shared key encryption technology and scrambling to enable the Nintendo DS to detect whether game cards are authentic.
The summary judgment states that if (i) was the only effective technical measure (ETM) then the case would have had to go to trial to determine if the card was infringing. It is my feeling that use of special connectors in order to stifle competition is probably contrary to monopoly laws, especially if third parties are being prevented from manufacturing such connectors. This would prevent things like third party macbook powerbricks and iPod docking stations.
For (ii) the Sega vs Accolade case may have some bearing - there it was held that use of a trademarked logo for a competing product was fair use since it was necessary for a Genesis console to boot a game cartridge. (iii) may possibly be also refuted by this case. Whether or not that can be used as a legal argument outside the US is a question for a lawyer.
http://digital-law-online.info/cases/24PQ2D1561.htm
The basic argument most likely to carry weight against ETMs is probably related to the artificial monopolies enjoyed by game console manufacturers. Is it legal for them to stifle potential competition with ETMs?
It seems that Nintendo's case for copyright infringement rests largely with the argument that their ETMs prevent the loading and execution of commercial game code from storage devices not authorised or licensed by Nintendo. Unfortunately the primary marketing effort related to DS flash cards is aimed at promoting copyright infringement on a huge scale - most, if not all, of the card manufacturers cite commercial game compatibility and give links to sites which illegally distribute commercial game dumps. Some even provide software which will download infringing copies directly to their device on the DS console itself. There's simply no way you can argue that the primary function of these cards is not copyright infringement against evidence like that.
There may potentially be an argument for format shifting which is legal in some countries for movies and music, I don't particularly see why games should be exempt from this. Obviously more needs to be done to discourage wide distribution of games, movies and music for free on the internet. Format shifting should only be legal for the purchaser of an original copy.
