Mods Vs Lockers: Region Coding And The Legal Dilemma

Mods Vs Lockers: Region Coding And The Legal Dilemma

The price and release date of the Nintendo 3DS has been unveiled, and while plenty were surprised by the $349.95 price point, some would still prefer to import at the lower US price, but for one issue – region locking. We decided to take a deeper look into the legalities of region locking – and where the Australian law stands on the issue.

It’s 2011 and playgrounds across Australia are swarming with children, huddling around their DSes – versing one another at Mario Kart and trading Pokémon. It’s a sight that would suggest that the Nintendo DS, as the highest-selling console of all time, is one of the major drivers of software sales in this country.

But it’s not – far from it.

Dwindling numbers have driven most third parties to abandon the Nintendo DS – in droves. Not because there isn’t an incredibly large user base, not because gamers have discarded their DS in anticipation of the impending 3DS juggernaut – no, the problem is piracy and, more specifically, the use of R4 cards.

Circumventing the security of the DS – allowing users to store large amounts of games – the R4 cards has become an accessory to ludicrous amounts of piracy. Tragically, Australians are one of the biggest offenders, for two major reasons – firstly, we traditionally pay more for games, and, secondly, a court ruling in 2006 rendered the legalities of owning a circumvention device such as the R4 card a genuine legal grey area, helping spread the misconception that mod chips and R4 cards are legal in Australia.

Post the announcement of the Nintendo 3DS, however, most of the discussion around circumvention devices revolves around one important issue – region locking, and the consequences of companies such as Nintendo utilising region locks in order to control the influx of imports; an influx that has become an increasing problem for retailers and distributors in this country.

Even today confusion reigns over this issue, and rightly so – it is a confusing issue. But perhaps the most important point is the fact that piracy, in all shapes and forms, has always been illegal – it’s merely the devices themselves that were within the bounds of Australian copyright law. Circumvention devices existed in order to override a company’s ability to manipulate specific markets through region locking – the fact they were also used by software pirates was deemed irrelevant by the courts.

“The mod chip was judged as not being an illegal circumvention device in 2006,” claims Melchor Raval. “Kirby J of the High Court ruled that the mod chip did not at all facilitate reproduction because, in fact, reproduction already occurred before the use of the mod chip.”

Melchor Raval is a PhD student, a researcher at Monash University currently writing a dissertation on this complicated subject – it’s an area of law that has evolved considerably over the years. Initial rulings, such as the one referenced above, tended to fall on the side of the consumer – as mod chips were deemed a necessary tool for those looking to override region locks placed by distributors.

That was especially relevant with regards to the PS2 Mod Chip case.

“Any deterrent attempt such as regional coding was considered irrelevant,” claims Melchor, “because according to Kirby J, one of the purposes of Sony’s regional access codes was non-copyright related, namely to enforce ‘global market price differentiation’.”
Essentially the ruling was enforced to protect consumers and promote fair-trade. Region locked consoles, according to Kirby J, existed solely to gain unfair “market advantage”, and, as a result, circumventing that mechanism was deemed fair – regardless of whether or not that circumvention made it easier to access pirated content.

But that was then – and this is now. Australia is a country bound by issues of delayed releases, and overpriced of goods and services. The US, however, is not, and has little need to circumvent any kind of device as a result of region locking. So when the Australian Government decided to enter into the Australia-United States Free Trade Agreement (AUSTFA) in an attempt to ensure greater access to the US market for Australian products, one of the conditions was that Australia tighten the reigns when it came to the definitions of what was ‘legal’ and ‘illegal’ when circumventing aspects of hardware.

“The whole thing is basically about the protection of copyright,” claims David Brennan, a Professor at Melbourne University specialising in copyright law, “and that can be with regards to a product, component, or software.

“When Australia entered into the Free Trade Agreement with the United States, the US weren’t too happy about the earlier ruling and they wanted to tighten up protections against access to these kinds of things.”

As a result, Australia’s policy was to treat R4 cards, mod chips, or any other means of circumvention in an similar way to the US. The changes to the law were minor – but significant enough to remove the need to prove that circumvention devices encouraged piracy. Now all Sony or Nintendo need do is prove that that the device in question – be it software, mod chip, or R4 Card – interferes with any Technological Protection Measure (TPM) put in place on the console to protect copyright.

“This may not sound too exciting,” states Melchor, “but Nintendo now only has to prove that the device circumvents the access control TPM of the DS to prove that the R4 card is an illegal circumvention device. This is in contrast with the Sony case, where Sony had to argue that the device facilitated illegal piracy. This burden of proof is not as important as it was because of the amendments.”

Yet, interestingly enough, as a result of the last Nintendo case being settled out of court, there is still no real legal precedent to this.

“Nintendo has been quite successful in arguing that the sale, manufacture, and marketing of the R4 cards are illegal because it has no other purpose other than to enable or facilitate the circumvention of the DS’s TPM,” continues Melchor. “However, the case was settled out of court, hence it does not create a precedent.”

But would you really be willing to challenge Nintendo on this? We wouldn’t recommend taking the chance.

But how does this effect region locking and, more specifically, the 3DS? Again, it’s a complicated, multi-faceted issue. When Nintendo first announced that the 3DS would be region locked, the initial outcry centred on the presumption that region locking the device would result in more piracy – but that’s probably not the case. After all – piracy was rampant on the DS, which was initially a region free device.

By region locking the 3DS, however, Nintendo are playing things close to the bone. Hypothetically speaking, if someone was to create a device that managed override Nintendo’s region lock, without subverting the 3DS’s Technology Protection Measures, that device would technically be legal.

“There are some exceptions to the rule,” begins Brennan. “If a Technological Protection Measure exists purely to stop people from playing games imported from another country, it’s legal to circumvent that – provided that same technology does not allow you to play pirated game.”

Melchor agrees and expands upon the point.

“One could argue for the interoperability exception. This exception basically allows users to circumvent technological measures to install independent programs, like homebrew, to devices without the authorisation of the owner.”

Chances of success using that argument, however, are limited.

“There are problems with this,” Melchor concedes, “because from what we’ve seen in international cases regarding mod chips, courts are more willing to see that the proportion of gamers who use the mod chip only use it for piracy and not for homebrew or creating interoperable applications for gaming consoles.”

Simply put – the widespread nature of piracy makes it difficult for courts to accept that circumvention devices can be used for anything but the illegal distribution of content. Tragically, they’re probably correct in that assumption.

But regardless of semantics, the question remains – why region lock the 3DS? Considering the fact that it opens up the circumvention debate to minor loopholes, wouldn’t it be safer for Nintendo to simply go region free? The law is, after all, set up to protect Nintendo from piracy.

Nintendo’s official response is predictably vanilla: “Nintendo has developed different versions of Nintendo 3DS hardware to take into account different languages, age rating requirements and parental control functionality as well as to ensure compliance with local laws in each region. Nintendo 3DS also offers network services specifically tailored for each region.”

While we’re sure that there is truth in that statement, region locking has always been about maximising revenue in specific territories, and this has become increasingly important in recent years given the rapid explosion of the handheld import market. It’s difficult to charge a premium for games sold in Australia when they can be easily imported from other regions.

But this is precisely why mod chips were made legal to begin with. Previous precedent states that protection measures set up solely to maintain “market advantage” are not protected under copyright law – yet we still exist in a legal grey area where it is not illegal for companies to create region locks.

And this is where Nintendo has been clever – you can legally disable region locking on a console, if you can find a way to disable it without affecting any of the other Technical Protection Measures. The only problem is, with the way modern console firmware is set up, this is practically impossible.

“If the regional access codes are intertwined with the access control measures,” explains Melchor, “and each function cannot be circumvented independently, then the access control measures, along with the regional codes, would be considered only one access control TPM.

“Nintendo will likely program and develop their TPM this way to escape the regional coding loophole.”

Consumers, it seems, are locked into some bizarre legal paradox.

But, on a pragmatic level, if we want to play games from other regions on our 3DS, what can we really do? It remains extremely unlikely that a legal method of circumventing region locks will be created. So what next?

Our only realistic option, according to both David Brennan and Melchor Raval, is to make region locking a trade practices issue, and take that complaint to the Australian Competition and Consumer Commission (ACCC).

“It is honestly possible for consumers to complain to the ACCC about this,” claims Melchor. “The ACCC has been against regional coding since the beginning, even arguing against Sony in the Sony v Stevens case.”

David Brennan concurs. “The policy of the ACCC has been to open up the market for legal imports – in fact, the previous leadership had a real interest in this stuff.”

Sadly, nowadays, the ACCC has taken a far less prominent role in this debate.

The ACCC has been silent about regional coding for quite some time now,” states Melchor, “probably because this issue isn’t in the top list of priorities right now.”

Until the ACCC takes notice, it’s very unlikely that this situation will change in the near future.

“Despite the fact that regional coding isn’t protected by copyright anymore,” reflects Melchor, “corporations are simply unwilling to change standards to reflect this – they still persist in using NTSC and PAL formats even though they’re now completely obsolete. Until a court or the ACCC creates a motion stating that forcing consumers to buy games in one region alone is unlawful, it doesn’t give companies like Nintendo much motivation to change.”

Once again, it seems, consumers must bear the brunt – and the cost – of indifference.


  • I simply purchase most my games from offshore sites like Play-Asia. I can get the Asian (not Japan) version of pretty much any game and it works on my Australian consoles. $60 a game including postage is a lot better than $100-$110 from the thieves at EB Games.

        • This comment in my opinion completely misses the point as to why its crap nintendo did this

          so you import a US 3DS, great. What if something comes out in Japan you want? tough.

          What if something comes out exclusively in europe? tough

          the fact of the matter is TONS of awesome games have come out in Japan and US only for DS that you now miss out on no matter where you import.

          Unless you have 3 3DS, and play those while driving your ferrari and park in your harbourside mansion of course.

          • Personally I believe that is Nintendo’s agenda.
            They really are making it harder and harder for an avid gamer to legitimately play all the games out there without importing, modding or possibly even pirating.

          • Yeah that’s why I think it sucks. Most of my DS games are imported.

            This region locking means we’ll have to buy games from stores and Australian online stores, which shouldnt be a problem except for the fact that most stores only sell crap DS games, like ‘Cooking Adventures’ or ‘Bratz Play Dolls’ or something.

            The only times I’ve ever bought DS games in store was when I found good deals in the pre-owned section…

        • Or buy an R4 and have free games, region free.

          The question comes down to a view on the morality of stealing – moral justification of actions.

          Does the positive of actually paying for this product outweigh the negative of pirating it. If it doesn’t, then morally you feel justified in piracy.

          Take into account the fact that the subject (piracy) is still in debate, that piracy is seen as being somewhat acceptable in Aus (see: Movie, TV and Music), the region locking makes Australians feel disenfranchised and the prices inflated with an equal dollar, the delays in getting physical products here and finally the ease offered by a mod

          Now the equation looks different.

          Its not a justification, just facts. Thats whats happening, can you not see people feeling this way and going all Robin Hood on a giant multinational?

      • YES YOU CAN! There is absolutely nothing stopping anyone from importing a 3DS (or any other console) and games via the web.

        Just remember if you buy a jap console you will only be able to buy jap games.
        Oz console means only oz games.
        US console means only us games.

        Three reasons why I have been importing for many years now:
        1. Games almost always get released months before we get it, and sometimes we just don’t get them at all!
        2. It’s almost always cheaper to import, even with priority courier delivery (when you order multiple games at once).
        3. If the websites can buy their stock at retail in jap/Usa and the retailers are making money, and the website is making money onselling to me, and I STILL save money, even though its being shipped all over the world to get to me -why do I want to support GREEDY Aussie retailers and publishers?! If they treated us with respect (decent prices, faster releases, better service, etc)
        I would buy local.

        • It’s not the Australian Retailers fault that prices are at the level that they are. Most retailers have to rely on the pre-owned market to stay afloat. Although between this and the R18+ debate developers are finding more and more reason to steer clear of the Australian market

    • Don’t pirate for one. Don’t buy a 3DS for another. For everything else Tired of getting ripped off locally? Shop (literally) globally!

      [VOUCHER] Exclusive $5 off when you spend $50 $-5.00
      Grand Theft Auto GTA Episodes From Liberty City Game Xbox 360 $24.49
      Forza 3 Ultimate Edition Game Xbox 360 $24.99
      Call Of Duty 5 World At War Game (Classics) Xbox 360 $27.99

      and FREE postage!

      • Such recent games for such low prices. I simply must visit ye olde ozgameshoppe. Are you the Suprise spruiker perchance?

      • be interesting to see what there price is for the 3DS because if it’s too cheap it won’t be the Aus version which could screw some people over

    • It doesn’t surprise me at all that Nintendo want to keep region coding in place – they invented it, after all (the SNES was the world’s first region-locked console IIRC).

  • I think just waiting to see what the pricing on games between regions is going to be like first is a good idea.

    And if they’re cheaper from another region, just order a DS from there as well, since it’s not like the DS has to be compatible with anything else (except maybe power for it’s charger), and chances are it will also be cheaper too.

  • hey mark

    “As a result, Australia’s policy was to treat R4 cars” missed a d in there

    Nice article BTW, shame that in this day and age they still essentially force us to import(to take advantage of the lesser of 2 evils)

    and considering the games are 40US it doesn’t bode well for there AU prices at release, something one would consider counter intuitive in the league of reducing piracy(seems more like a strategy to milk the legitimate customers to counter the loss’s attributed to piracy)

  • Sorry Ds owners you brought in on yourselves, I work in retail including selling DS stuff and the ammount of ppl buying consoles and not games, because they have or are getting the flash cards, is alarming. I dont blame 3rd party companies for not making ds games.

    • You know for a fact that all these people were using R4 cards?

      And you know for a fact that all of these people were using them for piracy?

      And you know for a fact that 100% of the NDS user base was doing this and therefore can’t complain about the measures Nintendo is taking?

      People are innocent until proven guilty. I’m sure there aren’t that many people using the R4 cards, I know half a dozen DS users and only one of them has even considered it but that is only to play japanese games he can’t otherwise play.

    • Paul, Don’t blame the consumers, blame the companies that set the prices. If every DS game was $30 at most you would’ve seen a lot more software sales. Mum and Dad would think ‘oh go on then grab a game or 2, their only 30 bucks’

      It’s simple business practice, lower the price and sell more volume, enought to offset the reduction. More units out there being played and seen by others potentially creating even more sales.

      Anyway, Nintendo and the rest can run their businesses how they want and i’ll continue to source my games by whatever means necessary at the cheapest possible price.

      • Exactly. I start to get reluctant about buying DS games when they release for nearly as much as the regular and/or discounted price of console games.

    • I have to agree with Paul. I have found the exact same thing. Every second DS I sold was without a games, and every third customer I asked why stated that they have a chip which has a hundred games on it and they are “legally free” to download from this website.

      I reckon that if this is to stop piracy go ahead. Maybe the mobs will start treating the pirates as the criminals they are.

      I do regret that this will effect my importing of games. But that is how pirated effect us all.

    • in my case i’ve gone through about 7 DS handhelds

      so apparently everytime i was pirating.

      i have a stack of games and only 5 of them were bought in australian stores for one reason or another

  • Before Nintendo started region locking their consoles I would buy local and import games, subsequently increasing Nintendo’s overall sales.

    Now that they have chosen to use region locking I no longer have this option but I can tell you that the number of games I consume will not diminish, just Nintendo’s sales.

    • well yes i get told a lot they are using flash cards (usually calling them r4) and u will never convince me that the large majority of users of r4 type cards are using them for just homebrew – give me a break, i have been a involved in games since the late 70s and have been a home gamer since the early 80s, even in my atari st days there were ppl pirating games and copying everything. The argument of game prices has some merits but ppl would rather pay nothing than something. I talk to my customers and i know that is happnin out there and in my own circle of my friends and all my kids friends i cant think of anyone that has a ds that doesnt have a Flash card. The gaming comunity is its own worse enemy sometimes, looked what happend to the original xbox.

      • I call BS on that.

        Look at Steam. PC games are the most pirated in the world aren’t they, and yet Steam is making a monsa, why? Well because you can get games cheap. Over christmas I picked up soooooo many games for under $30(AU) its not funny. And that is with me refusing to buy the games that are more expensive than the US release.
        I like owning games, I like supporting the companies than make great games, but I have a mortgage, car loan, 2 kids a fiance and a dog. And only my income. I cannot afford to pay $100 for a game. It is as simple as that.
        The Publishers need to drop the prices. The distributers need to put pressure on the Publishers to drop their prices. Australia is sick of being charged extra for no extra gain. The old school arguements no longer hold true, but the corporations won’t change unless the government forces them to.

        • Why do you have the right to have games if you cannot afford them? If you cannot afford a game you don’t buy it. It is that simple.

          Games are a luxury. You never need to have them. If you pirate them because you cannot afford them doesn’t in anyway separate you from criminals. You should be punished to the fullest extent of the law.

          When there are no pirates there will be no need for region locking. Until them I fully support hunting them down and treating as the social misfits that they are.

          • LeGambit: see my comment way up above re how I can import via a website, who buy from jap/usa retailers, then transport the stock to the websites country, then priority courier to me in my country (oz) -and I still save, usually around $20 per game!!!!!

            Now compare Sony PSP game pricing to Nintendos published game pricing on the DS. You can go into just about any Oz retailer and you will see PSP games around $17 compared to Nintendos DS games around $50!!!!!!!

            Some publishers in oz, and some retailers also, are absolutely making a killing !!!!!!!!!!!!!!!!!!!!!!!!

            So, while I don’t condone piracy, I can understand why some aussies do it.

            I do condone importing -go for it!!!

            If Legaqmbit or anyone disagrees, clearly you work for one of these greedy companies.

          • Technically, you are seperated from criminals as downloading pirate software (or movies, music, any copywrited material) IS NOT A CRIME.

            It is, however, a civil infringement.

      • some people use them as a way to not carry around all there games.

        As opposed to putting them at risk of getting lost or damaged.

        If nintendo offered a way for me to get all my purchases onto a single cartridge i’d pay extra for that

    • Ditto.

      It will be awesome playing a real handheld again after years of TRYING to play games on my iPhone without physical controls or non-gimmicky games.

      Seriously, how can the iPhone be considered a competitor to the handheld title when the games generally sucks balls and the controls are worse again.


  • “All that is necessary for the triumph of evil is that good men do nothing.”

    Surely some ground swell from Kotaku 3DS owners all making complaints to the ACCC will help. I find it odd that in news articles, often the ACCC is quoted as saying that they have recieved no complaints about a matter.

    Addmittedly it’s unlikely I’ll be picking up a 3DS but surely those who do could flick a letter the ACCC’s way.

    • The ACCC does not act on 1 complaint

      not even 1000, probably not even 10,000

      they have limited resources so pick their battles. They got involved with Sony’s fight back in the day because that hit the media big time and then they saw it as a company bullying someone and didnt like it.

    • I’d say it’s bigger than 3DS owners.

      DVD’s, and games are region locked too.
      Maybe this is where Gerry Harvey should be screaming… if it’s against the law to region lock devices, then there’s a requirement on manufacturors to sell the same product… which would reduce local costs too.

      Why aren’t retailers and consumers talking to the ACCC about this?

      • FYI its illegal to sell a dvd player in australia which cannot be unlocked via a code or search on google etc

        doesn’t have to be unlocked at the point of purchase but has to have some way to do it.

  • If it wasn’t for region locking, I would have pre-ordered a 3DS weeks ago. I really need more information about games prices, the e-store, local WiFi, etc before I make my decision about importing/waiting.

    It’s a shame that Nintendo have made it difficult for me to part with my money. :/

  • Back during the Standard Definition era, region locking actually made sense, especially when cartridges were also involved. The cart’s circuitry had to be able to interface with the console, and the console had a lot of specific hardware depending on whether it was targeting PAL, NTSC-J or NTSC TVs. Different framerates, different timings, different resolutions, different contrast ratios and all sorts of things. It required specific hardware for each one, and miniaturization of circuitry hadn’t reached the point that you could do more than one easily. Nowadays our cables are all standard, and HD is HD and everything can be done in hardware. Granted, they also leveraged the regioning to segregate the markets etc, but there was actually technical reasons underlying it.

    Region locks for portables never made sense. No previous portables have had region locks. The only reason for region locking is to split the market. There is absolutely zero technical justification for doing so. The same is true of modern ‘HD’ consoles – the hardware is the same. It outputs the exact same standardized signals. Hell, my Japanese PS3 happily runs on 240V power without a stepdown transformer or rectifier in sight.

    I’d actually say that Nintendo are opening themselves by including the lock. It’ll expose them to potential litigation and potentially bite them in the ass if e.g. the ACCC get angry about it.

    The reason I think the ACCC has been fairly quiet on the regioning issue recently has been that the PS3 has no regions, the Wii has software-based regioning that is trivially easy to work around entirely in software and Nintendo haven’t sued anyone over it, the 360 has no effective modchips but just about every US 360 game is available in Australia at around the same time (so there’s no loss of choice) and many of them aren’t regioned, and the portables aren’t regioned.

    Regioning is an anti-competitive practice and should be opposed on principle.

  • Incidentally and as an aside, the whole ‘Free Trade’ agreement with the US has so far turned out to be an absolute furfy as far as I can see. Did we get anything out of the deal at all, aside from retarded, ill-conceived US copyright laws being stealthed into our own legal system?

    • We got a few things, but we could never have predicted the US economy would tank the way it did

      if we could see that we would never have signed it.

  • Is there any reason why one couldn’t just purchase an American or Japanese 3DS and happily import games locked to that system?

    • I don’t know about you, but I’d like to buy games in Australia as well. And possibly import Japanese games that won’t see releases in Australia.

    • Not just what Mark said but you have the issue of he online store, and possibly dlc. We’ve already seen cases on the consoles of imported games being incompatible with dlc bought on the australian online stores. You’ll need to be very careful in that regard.

      Also, how will multiplayer work? Will you be locked into connecting to servers based in the region the console was purchased? Hope you like lag if that’s the case.

      • one could assume that a US Region Locked console only has access to the US Store

        And an AU region locked one with AU Store

        which it the only reason i see an australian Region locking being applied because of senor nazi conroy and his, lets classify everything approach meaning that any content sold needs to be rated even though it technically shouldn’t apply to DSware in the same way iphone games arent rated(but he’s a trying)

        “This Rock was Rated MA, Due to Frequent use in high violence crimes”

    • While we do on average pay more for games, and sometimes suffer horrendous delays. Importing means that when we do get that game early, or a week after, you might still be waiting for it (plus pay for postage).

      Nintendo have been getting much much better at what’s released and when, it’s the inconsistency of it though which makes us all uncertain. Pokémon Black and White are coming out here 4 days after the, but Kirby and Mario vs Donkey got a couple of months delay (in line with Europe).

      Retailers fighting over the cheapest price mean games can be sought in Australia for mere dollars more (or sometime cheaper) than an import on launch. Find a game on sale or in a bargain bin you’ve been wanting to play and never picked up? Can’t play it, you’ll have to import + pay postage. Then wait for it.

      It also means you’re locked out of the European market which does often get games that even the US doesn’t get. (Walk with Me, Jam with the Band, Last Window). If you have an Australian 3DS you have no troubles playing and importing these games. That also means shops like OzGameShop, Zavvi and what not that have sometimes great deals on DS games are useless to you. (AU/EU have the same region for the 3DS).

      However don’t get me started on the difference between the AU and EU online shop, that’s a problem for the ACB to fix though.

      Not to mention the fact that the Australia/US dollar parity won’t be around forever, well at least there is no guarantee of it.

      As a consumer it’s up to you where your dollar goes, there is both pro’s and cons of importing and buying locally. It can be a gamble either way. The point is you should be able to choose wherever you buy your games from, region locking stops that and until that changes you’ll just have to choose what is best for you.

      Or you could just be a complete idiot like me and have one from every region.

      • “Not to mention the fact that the Australia/US dollar parity won’t be around forever, well at least there is no guarantee of it.”

        One with excess money at the moment could transfer it to US dollars now on paypal(whatnot) and leave it

        if parity drops it will convert back as more money
        and otherwise you already have a fund source for importing

        if the dollar drops back to 60cents even then some stuff will be cheaper over there. Especially if games start coming out here at 80 dollars(which is my guess since there 40 in the US and we basically pay double or more) Which would really increase piracy as well

      • lets get this right australia is only getting 2 games at launch of 3ds cats and dogs and street fighter where as uk get 9 they get resident evil and cause of our dollar its 48.99 au witch is cheaper unlike everyone on here i want a good game at launch and if its cheaper i will buy it.And yes i have an edge card i use it get games that don’t get released here want a good range i do buy games but not here but from overseas region locking is just another borders debacle waiting to happen importing is not the problem control is australias problem we as a nation need to stand up and say no to region locking and getR18 on the books.

  • While the AUSFTA is being mentioned, I’ll once again bring up that Steam’s practices are illegal under it.
    Not that they charge Australians more on our store for the same games, but that they block us from using the US store.
    Of course, it’s not like they give a shit whether it’s legal or not since they’re still doing it despite it being brought up on their forums a number of times.

    I actually emailed the ACCC about it, and their response was along the lines of “We can’t do anything about it.”
    If we want region-locking to get the can then we’ll need a lot of people to make noise about it.

    Maybe get Seamus back off to Sunrise again to rally Kochie and the old patriotic parents that watch it?

        • I’ve brought this up in comments a number of times and even sent it in through the tips mail once.
          I get the feeling Mark isn’t too interested in the subject.

          • Nah you’re wrong – I think that was around Fallout:NV? Right? I remember asking questions about that – but everyone tried to fob it off on someone else. I’ll definitely look into this. It’s purely to satiate retailers since they won’t stock something that’s 30 dollars cheaper on steam. A 110 dollar game actually costs about 80 at cost price, so they can’t compete with steam. This is why some publishers will up the price on steam. (sorry, typing on iPhone!)

          • That was probably one of the times, yeah.
            To save you from trying to find it, the relevant parts are here:

            Specifically 16.4.
            The short of it is that they can’t give preferential treatment (lower/higher prices) to one party (US/Australia) than they do to the other. At least, that seems to be the consensus among those trying to decipher the confounding legalese.

          • Perhaps the extra payment is precluded by tax?

            Art 16.3 states that
            “Neither Party may impose customs duties, fees, or other charges16-[4]on or in connection with the importation or exportation of digital products, regardless of whether they are fixed on a carrier medium or transmitted electronically.”

            However, a footnote to this provision states that:

            “For greater clarity, Article 16.3 does not preclude a Party from imposing internal taxes or other internal charges on digital products, provided that such taxes or charges are imposed in a manner consistent with this Agreement.”

            I’m not sure how digital products in Australia are priced but perhaps the reason for the higher price are these imposed internal taxes or “other internal charges”. Not an economist myself but it’d be neat if someone can clarify this.

  • “Nintendo has developed different versions of Nintendo 3DS hardware to take into account different languages, age rating requirements and parental control functionality as well as to ensure compliance with local laws in each region. Nintendo 3DS also offers network services specifically tailored for each region.”

    That argument simply falls flat though, and I hate how Nintendo think that this is a justifyable reason to region lock it. We’re getting the UK’s console. They have different age ratings, speak the same language, and we’ll have different network services to them, yet we still get their console, so they obviously don’t NEED to have a separate one for separate regions.

    So why can’t we have America’s instead? It’s a pathetic excuse and I wish somebody could have brought it up with a rep at any of these press events and that.

  • I actually ended up with a R4 card by luck and quickly stopped using it for the same reason I don’t pirate movies. The experience isn’t as satisfying.

    However, the only way I have been able to blay Ouendan is by buying japanese copies from local shops because they were never translated. Yes, I bought EBA but Ouendan and the sequel were more fun.

    The only other time I pulled out my R4 was to play games which were never brought to Australia, or even the US, and to use MSN messenger from my DS before I got a laptop.

  • I am against piracy BUT i do own an R4 type device.
    i actually do use it for home brew AND what is in my opinion its best use, the ability to store many games on one card.

    all the games i have on it i own but i hate carying ds carts around, its anoying and the new biggest competitors (smartphones) dont have this problem.

    region locking really annoys me and its the second biggest reason im going to hold off on a 3DS (the first being im not yet convinced its for me)

  • The problem with the R4 and flash cards is that most of the people who use them illegally aren’t actual gamers, it’s the casual market.
    Whenever I see young kids playing their DSs It’s not an actual DS cartiage, it’s an R4.
    The casual market is screwing us over once again.
    If Nintendo is going to region lock the 3DS, they then should release and translate every game that comes out. I am seriously getting fed up with them.

  • For the DS I’ve tended to be more of an impulse buyer, and unfortunately a lot of those impulses go for import games. I bought the Japanese version of Mario Advance 4 (GBA admittedly) when seeing it on the shelves of a local import store (which has sadly closed down). US Mario 64 DS (technically a US DS on release too). US Scribblenauts. US Yoshi. And a fair few others.

    I’m not actually sure which has turned me away more from the 3DS – price or region locking. But I am looking forward to when people hopefully break the region coding. Not so I can pirate all my games, but so I can buy games from where I like and still be able to play them. I’m not a pirate – I know a few people in the games industry. Both my sisters do use R4 cards for their kids’ DS’ (which I disapprove of).

    Simply put, I want to be able to buy a game that I see on holiday in the states, for instance (which I’ve done several times). Or see in a shop that sells the odd import. If not, then to me it’s not a truly portable system.

  • My concern here is Nintendo’s motivation. I don’t plan on importing a game, ever. Not that I wouldn’t, my tastes just lean towards the mainstream and the (normally marginal) savings are not a big enough motivator for warranty and compatibility issues. But I’ll be damned if I can’t have the choice. Nintendo’s justification of parental locks tying into local rating systems is offensive – include other region’s ratings into the firmware (as they must already be coded) and be done with it. No, its a business decision, geared for protecting profit and regional pricing. As a business that’s their call. But by insulting my intelligence with that crap explanation rather than transparency means I’ll make my call. I’ll pass.

    • You said, “It’s their call as a business…”

      Honestly, I do not believe it is a call they should be legally allowed to make. It’s enforcing discrimination, and should be illegal.

      • You know… you’re right, they probably shouldn’t be allowed.

        I don’t think I would go as far as enforcing discrimination though. I can NOT buy their product and thus opt out of their controlled eco-system entirely. Sure, I don’t get some games I want but I also didn’t get a KFC Double Down (I have a vendetta against my body) just because I live in Australia.

        I guess I am talking less from a legal standpoint (where you raise a valid argument) and more from my own pig headed reasoning – It has a feature I find intolerable thus I will not buy it. More there loss than mine. If no-one bought a 3DS because of region locking a non region locked version would be on the market overnight.

  • Bluuuuh, damn region locking. It’d be nice if Region locking was made illegal in Australia, so that all new consoles would be forced into playing games of all regions.

  • So basically… we’re screwed either way.

    Don’t break the ‘law’ and be screwed on prices.

    Or break the ‘law’ and be screwed by… breaking the law.

    While it may be TECHNICALLY illegal, the extremely lax enforcement of software piracy, and their policy of going after distributors instead of individual customers, is probably still incentive enough for many to run modchips.

    I myself owned an R4 cart throughout all of my DS’s lifetime. Because 90% of the games that came out on DS suffered delayed releases in australia (Professor Layton and Phoenix Wright are the biggest perpetrators) I would import my games, and download them to play on my R4.

    That way, i’d be able to start playing the game as soon as it came out, and i’d still be supporting developers because I owned a legitimate copy of the game.

    I will admit, however, that I often used software piracy as a glorified ‘demo’ player. The ammount of demo’s that existed for the DS games i was interested in was dsymal, so my policy was to download the game, and if i liked it, to buy it.

    Bottom line? It doesn’t matter what the ‘law’ says, modders will swarm over the 3DS, chip it, and many average, law-abiding citizens will be forced to break the law to circumvent a bullshit block by nintendo.

    • i believe in australia though one can only be charged for each infringement and not the 3million just cos we can that seems to happen in australia.

      which is kinda a reason why piracy is high, why buy something when you could get away without buying it and even if your caught they can only charge you for each infringement.

      Which is where the guy who uploaded NSMB got screwed over because they then tied any subsequent downloads as infringements on his part

      The Fact is prices are going up with no increase in value for money in most cases, which is going to cause piracy. Because people believe there being charged extra for no apparent reason

      But you can’t really blame them either in this day and age, Companies Give there CEO’s Payrise’s while saying that they need to move operations to a 3rd world country because it’s too costly to manufacture in australia or the US. And in some cases then have the Gall to tell us that because we’re boycotting their brands because of it that were unaustralian because we refuse to buy from a company that “Is Australian Owned” (which now means “was established in australia”)

  • I guess what frustrates me is that whenever is that that Australia is nearly or sometimes par with the American $ and yet we have to pay nearly twice as much for the same game with no added features.

    It’s BS.

  • I’d like to point out that importation – which region-coding is explicitly designed to prevent – is not piracy.

    It’s a shame that Kotaku has bought into the industry’s publicity guff that importation and piracy are one and the same.

  • “Hackers Law: If something can be hacked, it will.”

    Piracy has absolutely nothing to do with region locking, or availability of games. If a console can be hacked, especially if it can gain hacker groups a profit (flashcards), then it will.

    You can’t blame gamers for pirating games. After all, we’d be stupid to NOT take advantage of options that save us money.

    Piraters don’t pirate simply because they can’t get certain games in their region. Stupid argument.

    It’s all because it’s free.

  • “that would suggest that the Nintendo DS, as the highest-selling console of all time, is one of the major drivers of software sales in this country.

    But it’s not – far from it.”

    It serves Nintendo right for allowing vast quantities of complete shite onto the shelves with the DS, how many awful non-games about animals ending in Z or babysitting games (really??) or crossword puzzles, crossword puzzles FFS, just buy a paper if you need a crossword!

    And yet whenever a game comes down the pike with the slightest hint of quality, say New Super Mario Bros or Legend of Zelda – that’ll be $70 thanks – $70 is their RRP for an actual decent game.

    High software prices and overwhelming quantities of shovelware are what I’ll remember the DS for – we got about 12 or so games for the thing, but last year stopped buying them and concentrated on the consoles instead cuz most Xbox games a cheaper with a far better replay value.

    More important than Nintendo’s region lockouts is going to be whether they’ve learned the lessons of the DS, their initial game lineup suggests they might have – but the noises they’re making on prices doesn’t fill me with confidence.

  • i don’t see a problem with buying games from shops, i am a young gamer (18) i own an original DS and i don’t have an R4. some of the comments are right about there being mostly bad and crappy games on DS, a few exceptions not counted. what i really have a problem with is all the big game companies, especially the american ones, who choose to charge Australians sometimes double what americans themselves pay. even with the AU dollar even with the US dollar they still do it because until ruling are made and Governments crackdown on this practice it will remain ‘legal’ to charge different prices in different countries. and for all those who’d say the companies need to make money, im not blaming the actual game creators. i blame the Publishers (2 of which spring to mind: EA and Activision). they choose to make obscene profits off games, give some money to the developers but keep most for themselves because they are greedy

  • It’s funny how console manufacturers still cling to region locking. I think one of the greatest successes, ironically, in combatting piracy has been the PS3’s removal of region locking on its games. Until Sony removed the Other OS function there was no real motivation for people to find a way to ‘chip’ their PS3.

    Its just a shame movie studios refused to support Bluray movies until they were guaranteed region locking in order to stagger release dates across the owrld 🙁

  • >>> That was especially relevant with regards to the PS2 Mod Chip case.

    Sorry – whoever reasearched this doesn’t know much… it was a PlayStation (PS1) case… there have been no cases involving PS2 mod chips in Australia… ever 😛

  • >>> “The mod chip was judged as not being an illegal circumvention device in 2006,” claims Melchor Raval

    This Melchor guy doesn’t know much either… this case had judgement handed down on October 6th, 2005… not 2006!

  • >>> “but Nintendo now only has to prove that the device circumvents the access control TPM of the DS to prove that the R4 card is an illegal circumvention device.

    Wrong again – the Nintendo DS does not have region coding – that is why it the R4 is illegal, and the guys settled out of court – they had no leg to stand on.

    If it did have region coding (like the Xbox, 360, PS1, PS2, PS3, GameCube, Wii etc) then the R4 would be legal.

  • >>> it’s legal to circumvent that – provided that same technology does not allow you to play pirated game.

    Wrong – no where in the Copyright Act does it state that!

    Most ACTPMs (note the difference to TPMs – I don’t think the author does!) actually enforce region coding…

    I.e. the region coding sits _behind_ the ACTPM… meaning one MUST break the ACTPM in order to remove the region code… code in point, Blu-ray Disc.

    FFS… circumventing region coding often requires aopying the Blu-ray Disc – and that is LEGAL if all YOU are doing is circumventing the region code!

  • >>> “If the regional access codes are intertwined with the access control measures,”

    As mentioned – the law does not state that you must only circumvent the region code.

    It you back a wall in front of the region code – you are allowed to break through any such wall to reach the region code.

    It’s pretty simple to see why, and the High Court have made their thoughts pretty clear on that matter.

  • If you want accurate information on these matters contact Kim Weatherall at She has law masters degrees from Yale and Oxford and is an expert in IP/IT law. I modded more than 3,000 consoles over a five-year period, and she was provided my main legal advice.

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