Homebrew FAQ: Is freeShop legal?

[Funkymon]

An interesting note, I covered that in the OP.
But I can still break it down. Nintendo actually doesn't protect their servers and actually allows everything from Anon transactions to even downloading games from your web browser. Their lack of proper security would raise more questions for Nintendo than anything else.

The DMCA act doesn't actually require the protection to be good though. They've shown that in numerous cases. Even easy to bypass protection counts. Suggesting that because it's easy to bypass (by allowing any connections) makes it legal, simply isn't true.

 

[The Catboy]

The DMCA act doesn't actually require the protection to be good though. They've shown that in numerous cases. Even easy to bypass protection counts. Suggesting that because it's easy to bypass (by allowing any connections) makes it legal, simply isn't true.

The DMCA actually doesn't cover a situation like this as freeShop is not actually circumventing any security measures. I am not suggesting that this makes it completely legal, but it also doesn't make it illegal as the law does not actually cover a situation like this.
Things that would be illegal would be say, if the eShop required an account and freeShop bypassed that account requirement.

 

[Funkymon]

The DMCA actually doesn't cover a situation like this as freeShop is not actually circumventing any security measures. I am not suggesting that this makes it completely legal, but it also doesn't make it illegal as the law does not actually cover a situation like this.
Things that would be illegal would be say, if the eShop required an account and freeShop bypassed that account requirement.

The security measure is the encryption. Nintendo's method of using the encryption is requiring the use of the eShop to decrypt the software. Accessing Nintendo's servers directly bypasses the protection of the eShop, as easily demonstrated by the fact that you can decrypt software you don't own. The DMCA couldn't be clearer on this point "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Was the eShop a technological measure that effectively controls access? Yes. Was it circumvented? Yes.

It defines them even clearer further in the act:

(3) As used in this subsection—

(A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
​

There's no question that in the ordinary course of it operation, the eShop is meant to be required to access the work. This bypasses the eShop.

 

[chrisrlink]

as for torrents there is a legal use an example is Linux distros (the free ones) use torrents it's essentially much faster than http/s i agree with the freeshop argument cause as in open source but it's like building a nuclear weapon w/o the nuclear material included how you get it/use it is up to you not the devs

 

[Funkymon]

as for torrents there is a legal use an example is Linux distros (the free ones) use torrents it's essentially much faster than http/s i agree with the freeshop argument cause as in open source but it's like building a nuclear weapon w/o the nuclear material included how you get it/use it is up to you not the devs

That's a different argument. Torrents don't bypass protections as defined by the DCMA. There's no question, that without the DMCA, freeShop could have legal uses. However, the DMCA doesn't require uses to be otherwise illegal to be in violation of the Act.

 

[chrisrlink]

yeah but the DMCA is US LAW we're not a central governmet under this law (some countries don't have copyright laws at all or very loose) the US thinks they OWN the internet and all their laws apply (look at TPB who's hosted in a country solely where piracy is legal and the US tries (and fails) to knock the site offline ppl who dumbly host stuff like this on US servers are breaking the law by hosting which gave me a good question to ask if you live in a country not goverened by any copyright laws and host a file (like warez) on a US file hoster can you get slammed?

 

[The Catboy]

The security measure is the encryption. Nintendo's method of using the encryption is requiring the use of the eShop to decrypt the software. Accessing Nintendo's servers directly bypasses the protection of the eShop, as easily demonstrated by the fact that you can decrypt software you don't own. The DMCA couldn't be clearer on this point "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Was the eShop a technological measure that effectively controls access? Yes. Was it circumvented? Yes.

It defines them even clearer further in the act:

(3) As used in this subsection—

(A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
​

There's no question that in the ordinary course of it operation, the eShop is meant to be required to access the work. This bypasses the eShop.

This does indeed bypass the eShop and arguably violate the DMCA. But that still doesn't completely make freeShop illegal, the application itself is still a legal application with legal uses. Of course the DMCA does bring up security violations, but even Nintendo didn't press on that, as they removed freeShop for the copyrighted code that it contained at the time.
FreeShop does walk the legal tight rope and of course the DMCA frowns upon it, I am not arguing that. Just simply hacking your system is a violation of the DMCA. But it also still boils down to what Nintendo wants to push when enforcing copyright policies. Nintendo did include suspicions of piracy, but did not press that as the actual reason for the takedown. They instead presented the copyright for the 3DS bootsplash as reason for the takedown.
Basically Nintendo's own takedown was focused on the law they saw broken and less on DMCA violation they could have pressed on. If Nintendo had actually pressed on that issue, we would have removed freeShop from the Temp, much like when we banned the Gateway website.

 

[Dionicio3]

Man, why are so many people trying to bash freeShop?

 

[Funkymon]

This does indeed bypass the eShop and arguably violate the DMCA. But that still doesn't completely make freeShop illegal, the application itself is still a legal application with legal uses.

That was demonstratively proven to be untrue with the DVD circumvention software. DVD playing software which merely allowed you to play DVDs in an unlicensed player was held to be in violation of the DMCA.

The legality is much more simply defined as:

While Nintendo has claimed the software to be in violation of the DMCA, those allegations have not been proven in court.​

 

[The Catboy]

That was demonstratively proven to be untrue with the DVD circumvention software. DVD playing software which merely allowed you to play DVDs in an unlicensed player was held to be in violation of the DMCA.

The legality is much more simply defined as:

While Nintendo has claimed the software to be in violation of the DMCA, those allegations have not been proven in court.​

Yeah basically, freeShop has yet to be proven illegal in an actual court of law and Nintendo has yet to actually push any actual lawsuits to challenge freeShop. Thus as it stands, it removed the offending copyright code and still falls through a legal grey zone until Nintendo actually press it.

 

[Funkymon]

Yeah basically, freeShop has yet to be proven illegal in an actual court of law and Nintendo has yet to actually push any actual lawsuits to challenge freeShop. Thus as it stands, it removed the offending copyright code and still falls through a legal grey zone until Nintendo actually press it.

Right. That's not the same as 'legal' though. It's the same grey area everything exists in until proven by a court. Currently, the only person taking on risk is arc13. If it's later held to be in violation of the DMCA, they'd be held responsible and suffer the consequences; the file host would be protected by the DMCA takedown provisions.

As for users, it would largely just depend on if Nintendo went after them. Historically, they haven't. That's about all we know.

 

[The Catboy]

Right. That's not the same as 'legal' though. It's the same grey area everything exists in until proven by a court. Currently, the only person taking on risk is arc13. If it's later held to be in violation of the DMCA, they'd be held responsible and suffer the consequences; the file host would be protected by the DMCA takedown provisions.

As for users, it would largely just depend on if Nintendo went after them. Historically, they haven't. That's about all we know.

There you go, you actually broke down my entire thread to the meat of it. It's legal because Nintendo hasn't pushed to make it illegal. That is the point the wall of text.
Also Nintendo would have to work with EU and French laws with him. Something I can't speak on behalf of because I don't know them

 

[Parallax2814]

As for users, it would largely just depend on if Nintendo went after them. Historically, they haven't. That's about all we know.

I find it hard to believe that Nintendo would go after the users of Freeshop, CIAngel and/or similar programs.

(That by no way means anyone who uses those programs should feel 100% safe though. So people should use those programs at their own risk.)

Just think of the sheer amount of people who use programs similar to these....hundreds of thousands....but more than likely a million or more. The news of such programs has spread over social media and youtube etc, so there probably is a very large user base. (But probably only about less than 1-2% of the total Nintendo user base, which in the long run is super low anyhow.)

It would be a massive financial and legal undertaking that could take years or even decades to finalize. And in the end there is no guarantee that Nintendo would be able to get everyone who used such programs (for legal or illegal usage) and win a legal case against them. Some people might use VPN's or be using free public wifi connections that make it harder to track users down. That would be money Nintendo could be potentially spending for nothing and could be better spent elsewhere.

I think that Nintendo is more likely to ban the further spread of such programs via a DCMA request or something, and/or upgrade their security to prevent those programs from no longer working.

 

[Drakia]

The security measure is the encryption. Nintendo's method of using the encryption is requiring the use of the eShop to decrypt the software. Accessing Nintendo's servers directly bypasses the protection of the eShop, as easily demonstrated by the fact that you can decrypt software you don't own. The DMCA couldn't be clearer on this point "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Was the eShop a technological measure that effectively controls access? Yes. Was it circumvented? Yes.

It defines them even clearer further in the act:

(3) As used in this subsection—

(A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
​

There's no question that in the ordinary course of it operation, the eShop is meant to be required to access the work. This bypasses the eShop.

Downloading titles from the Nintendo servers does not break any laws, as the files are publicly accessible with zero protection (Therefor not covered by the DMCA).
The eShop is also not required to install titles, the AM service is, which FreeShop uses to install things (It doesn't re-implement the service, and does no decryption itself, it just passes data to the legitimate service on the 3DS).

The only illegal part of FreeShop is utilizing someone else's title keys to decrypt content you do not have a license to decrypt. FreeShop does not do this by default, users have to go out of their way to find a title key database that contains keys they are not licensed to use, and it is therefor entirely on the user to break the law using the application.
FreeShop in and of itself does not break the law, nor the DMCA.

Just think of the sheer amount of people who use programs similar to these....hundreds of thousands....but more than likely a million or more.

You're overestimating a little bit there. CIAngel has ~137k downloads total. FreeShop was around 200k when it was hosted on GitHub, I don't have numbers for the new host though. There is also most likely a lot of overlap between the two.

 

[Funkymon]

It would be a massive financial and legal undertaking that could take years or even decades to finalize. And in the end there is no guarantee that Nintendo would be able to get everyone who used such programs (for legal or illegal usage) and win a legal case against them. Some people might use VPN's or be using free public wifi connections that make it harder to track users down. That would be money Nintendo could be potentially spending for nothing and could be better spent elsewhere.

They would just do what every other content provider does, assign the rights to a company that will file the lawsuits on their behalf. All Nintendo would do is turn over server records of users they identified as pirates, and then they'd get a cut of any damages. I don't think they will, but it's not hard.

The eShop is also not required to install titles, the AM service is, which FreeShop uses to install things (It doesn't re-implement the service, and does no decryption itself, it just passes data to the legitimate service on the 3DS).

Look at the bnetd case. They didn't use any copyrighted code, produced the app through legal reverse engineering and hosted their own servers. But because it bypassed Blizzard's intended copyright check, it was still considered in violation. An app like freeShop, which has options to make piracy easier isn't going to win in court.

 

[Drakia]

Look at the bnetd case. They didn't use any copyrighted code, produced the app through legal reverse engineering and hosted their own servers. But because it bypassed Blizzard's intended copyright check, it was still considered in violation. An app like freeShop, which has options to make piracy easier isn't going to win in court.

That would have had to reverse engineer and implement the encryption protocol, thus breaking the DMCA. FreeShop does not, it calls services built into the 3DS that install titles, and does nothing to bypass copyright/signature checks (The CFW technically does that).

 

[Funkymon]

That would have had to reverse engineer and implement the encryption protocol, thus breaking the DMCA. FreeShop does not, it calls services built into the 3DS that install titles, and does nothing to bypass copyright/signature checks (The CFW technically does that).

They had to reverse engineer the calls for the 3DS. Those aren't meant to be user called services.

 

[SoslanVanWieren]

It also has the eshops music in it which is illegal

 

[Joom]

It also has the eshops music in it which is illegal

No it doesn't. It "streams" it from the eShop. The music itself isn't included in the application. It does the exact same thing the eShop does for its music.

 

[Drakia]

They had to reverse engineer the calls for the 3DS. Those aren't meant to be user called services.

Literally all homebrew does that, calls services that weren't meant to be public. Whether it's the DSP, FS, or AM.