FAQ: Is freeShop legal?

Discussion in '3DS - Homebrew Development and Emulators' started by Lilith Valentine, Apr 29, 2017.

  1. Lilith Valentine
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    Lilith Valentine GBATemp's Wolfdog™ ☠️Grunt☠️

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    Disclaimer!
    I don't normally add tags like to a thread, but I feel it's necessary for the subtopic I have to include to eliminate the rumors around TheCruel's situation. What happened to him has no connection to freeShop nor any of his other projects. However not including this detail would be a disservice to freeShop. That being said, this is not the topic to talk about TheCruel nor his crimes. Any further comments must be post in the separate thread made for that topic. Any and all comments related to his crimes will be treated as off topic and reported. If that thread is locked and or removed, that does not open the door to bring the conversation to this thread. This will be the only warning I will give.
    Right! We all good now?

    So one of the most common questions when addressing freeShop is, is it legal? Does freeShop itself violate any actual copyright laws?
    TL: DR version

    Long version for the nerds
    So is it legal? This question really depends on what you mean by "legal?" Homebrew legality itself is really subjective to different countries and their copyright laws. Technically in the US hacking your system is actually in violation of the DMCA, even if it's a never enforced policy. But that doesn't answer the question is freeShop itself a legal homebrew? And the simple answer is actually yes. FreeShop is based on free and open source software no longer containing any of Nintendo's code (turns out 3DS bootsplash wasn't a default feature of launching applications on the 3DS ¯\_(ツ)_/¯.) Being that it contains no actual copyrighted code, it doesn't violate any actual copyright laws. FreeShop did run into some legal issues when it turned out the 3DS bootsplash was actually copyrighted code and included without legal permission from Nintendo. This resulted in freeShop getting a DMCA takedown noticed and the repos being pulled from github with the following noticed posted in regards to reason for the takedown.
    So does this actually make freeShop illegal? The answer isn't so black and white, but let me breakdown the notice. The DMCA notice does indeed target the potential piracy uses for freeShop, but that's not completely the reason why it was taken down nor does that make it illegal. Arguing that potential piracy uses makes something inherently illegal only opens the door to arguing that every single web browser, download manager, torrent downloader, usenet, etc. are all inherently illegal as well. Each and every one of these tools can be used to illegal piracy and or circumventing security systems. Which is also why Nintendo actually removed it for the copyrighted code it contained. The 3DS bootsplash is indeed Nintendo's own code and was included without legal permission from Nintendo, straight from the takedown notice
    With that said, the bootsplash was indeed included unethically and Nintendo had the right to remove the repo for that reason. But this also meant that simply removing the bootsplash completely resolved Nintendo's legal grievances with freeShop. This doesn't mean it resolved the piracy fears from Nintendo, but at the same time Nintendo would have prove that freeShop was made and distributed with piracy in mind. This is where freeShop technically wins the "legal" argument, as freeShop was never made with piracy as the main intent.

    But isn't freeShop intended for piracy?
    Nope, in fact right from the description of freeShop
    Now once again this does actually get into some legal grey areas. Technically backing up your own games (or in this case tickets) has always been a bit of a legal kerfuffle, but ultimately has never been declared outright illegal. In most cases so long as you are the only one benefiting from this backup and not actually distributing the files, Nintendo has very shaky legal ground to stand on. Which brings up the question, is it ok to use this ticket to redownload my games from the eShop? While this is also a bit of a legal grey area as well. Nintendo says, "No," but at the same time would actually have a hard time trying to prove why it's illegal. Nintendo actually does not encrypt their servers to who can and can't access them. You can actually download eShop games right now from Nintendo's server through your web browser. You can also make purchases completely anonymously. You can actually buy an eShop card from a store and buy games without a NNID nor any other form of information given to Nintendo (minus your ZIP code for tax purposes.) With this in mind, Nintendo would have to argue how freeShop is actually violating the laws if it's your ticket and you are downloading your game from a market that doesn't lock down their games. If Nintendo had put a paid online service or accounts only service on the eShop, this could be a completely different story. As it stands now, freeShop is not actually doing anything illegal accessing these servers. Despite what Nintendo claims, it's actually completely on their end to have setup measures to prevent these kinds of transactions from happening. Nintendo would have to defend why they didn't setup any form of security on their end to prevent a service like freeShop from accessing their servers. This is most likely why Nintendo presented the actual copyright for the 3DS bootsplash, but failed to provide what copyright laws were broken. This is also why it was worded as
    Note that Nintendo only "believes" that it can be used for piracy, which can not actually be used as a "legal argument" without proving it to be intended for piracy. As well can not be used for the reasons I mentioned above. Basically Nintendo's poor security and inability to prove intend for piracy only harms them more than it would harm freeShop. Thus as it stands now, the code is legal and so is the legal usage (as in downloading your own legally bought games.)

    But doesn't the name "freeShop" imply piracy?
    FreeShop from what I can tell is actually a pun, mixing the words "free" from the Free Software Movement and eShop. One could argue that the name is implied for piracy and getting free games, but that's really more about perspective. Either way, the naming doesn't really matter when it comes down to it. It could easily be named something like "CIAngel" or something along those lines and still not have anything to do with piracy.

    TheCruel got arrested! Does this have anything do with freeShop and am I safe?!?
    This is a topic I can't avoid, but I am going to do my best to distance his real crimes from the speculations. First, you can read about his crimes here and like I said at the start of the thread, keep it to that thread. Now to answer the question, did freeShop have anything to do with his arrest? And the answer is just a flat NO! His case dates back to 2012, long before he became part of the 3DS scene. Outside of the DMCA takedown notice, freeShop has not been under any other form of legal issues as they had removed the offending content. There is no connection between his crimes and freeShop. Proof being that freeShop's original source code is still available and since his arrest freeShop has been forked. Downloading, forking, and using freeShop will not get you under any form of legal troubles. Nintendo will not go after you for using freeShop as it would be a complete witch hunt on their end to do so. This doesn't matter how you are using it, the likelihood of facing legal charges are slimmer than winning the lottery.


    So in closing, is freeShop legal? Mostly, the code is legal and accessing Nintendo's servers despite being frowned upon isn't completely illegal. Are you safe using it? For the most part, yes, it's extremely unlikely you will face legal charges unless you do something stupid. By stupid I mean like walking up to a Nintendo executive and being like, "LOOK AT ALL MY PIRATED GAMES! LOOK AT ME PIRATING GAMES!" Does it have anything to do with TheCruel's arrest? Nope, stop asking and stop spreading rumors. Was there a point to this thread? Yes, because legal stuff! ^_^
     
    Last edited by Lilith Valentine, Jul 16, 2017
  2. proflayton123
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    Apr 29, 2017
  3. kikongokiller

    kikongokiller Custom Title

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    This will hopefully put an end to all of the legality questions involving freeShop, huge props to you.
     
  4. pixelmasher

    pixelmasher Gaming Gamer

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    IANAL, but I believe making backup is legal. The copyright owner just not want that. Breaking security to make that copy would be DMCA violation.
    https://www.law.cornell.edu/uscode/text/17/117
     
  5. Lilith Valentine
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    Lilith Valentine GBATemp's Wolfdog™ ☠️Grunt☠️

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    It's basically why I put "grey" because on one hand, it's legal to make your own backup on the other hand, DMCA says cracking isn't legal.
     
  6. proflayton123

    proflayton123 Undeclared Shitposter 2.1

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    Would sharing your said backup be considered illegal also? With other people than yourself
     
  7. Lilith Valentine
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    Lilith Valentine GBATemp's Wolfdog™ ☠️Grunt☠️

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    That is completely illegal to share your personal backups.

    — Posts automatically merged - Please don't double post! —

    But I forgot to add that though not everything involved can be deemed completely legal, this less about those and more about answering the question of "is freeShop itself legal." Of course not everything around it is completely legal, but that's kind of the nature of homebrew itself. Often walking a tightrope of legality.
    In all technicality, installing Homebrew launcher is technically a violation to the DMCA.
     
    Last edited by Lilith Valentine, Apr 29, 2017
  8. BARNWEY

    BARNWEY Legen-wait for it-dary

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    Well, now I have something to point to whenever people ask questions about FreeShop. Thank you @Crystal the Glaceon for making this!
     
  9. arc13

    arc13 SPAAAACE !

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    Thanks for making this thread, it will be added like I said in my thread in a bold red blue, if it's red it's not really a link ;), it's really complete and I hope that freeShop users will not be worried anymore by legal uses of this software.

    Oh and, the best part:
     
    Last edited by arc13, Apr 29, 2017
  10. NexoCube
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    Apr 29, 2017
  11. arc13

    arc13 SPAAAACE !

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    -snip-
    freeShop is designed to use title keys you own (it's even wrote in the OP, in my thread and in the original thread, and in freeshop.pw...), this is why it's considered as legal, after that I'm not responsible if people use it to download games they don't own.
     
    Last edited by Minox, Apr 29, 2017
  12. ov3rkill

    ov3rkill GBAtemp Maniac

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    On one hand, freeshop by itself is a legal homebrew. On the other hand, how the users used it is the grey area of legality. If you use it to download games you don't own, then that's obviously illegal because it's piracy. If you used it using your own title keys or games you bought, then it's definitely legal. Then again, most people who used this homebrew obviously uses it download games for free. :rofl2:
     
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  13. NexoCube

    NexoCube stop using piracy :(

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    Yup, i know, Cruel and you made a great job here, but i'm not going to lie, but i only use it to get some games i don't own because i'm a prick
    And yeah, you should add a notice when laucnhing the app so people know you haven't made this homebrew for illegal usage.
     
  14. Lilith Valentine
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    Lilith Valentine GBATemp's Wolfdog™ ☠️Grunt☠️

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    That's actually the entire point of this thread. To explain that freeShop itself, the homebrew, is legal. Then explaining how it's legal.
    FreeShop is just like a torrent downloader. Just because it can be used for something illegal, doesn't make it illegal.
    I know it's a wall of text, but I do go into great details why freeShop itself is legal. I am referring to the homebrew itself. How it is used is a completely different topic.
    Again, refer to my torrent downloader example.
     
    Last edited by Lilith Valentine, Apr 29, 2017
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  15. SoslanVanWieren

    SoslanVanWieren GBAtemp Advanced Fan

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    it allows piracy though and some flashcards are illegal in some countries due to that.
     
  16. Lilith Valentine
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    Lilith Valentine GBATemp's Wolfdog™ ☠️Grunt☠️

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    Read the wall of text.
    Torrent download argument though. qBittorrent allows me to pirate software without question or regulation, but that does not make qBittorrent an illegal piece of software. The same thing applies for freeShop.
    I went into great detail for reason.
     
  17. Felek666

    Felek666 retarded memekid which no one likes

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    Everything is legal as long as you own the downloaded content.
     
  18. SoslanVanWieren

    SoslanVanWieren GBAtemp Advanced Fan

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    Do you remember mega upload it got shut down because people uploaded pirated stuff to it even though you could use it legally even if some things legal they will go after your program if most people use it for piracy because its the only way to stop the pirates since so many people do it
     
    Last edited by SoslanVanWieren, Apr 29, 2017
  19. Felek666

    Felek666 retarded memekid which no one likes

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    Nope. It got shutdown because it didn't pay employees, purchased himself alot of stuff instead of paying servers and for profiting off warez content.
     
  20. Lilith Valentine
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    Lilith Valentine GBATemp's Wolfdog™ ☠️Grunt☠️

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    Actually it was shutdown for ignoring takedown requests, not paying employees, and profiting off their illegal content.. That is not the case here as freeShop does not provide illegal keys, does not explain, endorse, or even suggest the use of illegal keys. FreeShop is intended for you to use your keys that you dumped. If you choose to use illegal keys, it's not freeShop's fault and does not make freeShop illegal.
    Again, this would be like calling Firefox "illegal" because I can use it to visit that iso site and download me some games.
    Please actually read the OP
     
    Last edited by Lilith Valentine, Apr 29, 2017
  21. SoslanVanWieren

    SoslanVanWieren GBAtemp Advanced Fan

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    Well it downloads stuff from Nintendo's server without their permission only the eshops meant to access it
     
    Last edited by SoslanVanWieren, Apr 29, 2017
  22. Felek666

    Felek666 retarded memekid which no one likes

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    It's Nintendo's fault for not securing their eShop server to not allow downloads from other sources.