# So modding video game consoles is actually illegal?



## Stephano (Jun 24, 2019)

So modding video game consoles is actually illegal?


For about 5 years, I was under the mindset the modding video game console that you own to play backups that you own and to play homebrew made by others was completely legal. I go to several threads of people asking if this is legal or if that is illegal and on every thread I get the same three responses...


we don’t talk about piracy
Modding your console is legal
It only breaks Terms of Service

For the longest time I accepted these notions without thought. A long while ago, I asked about the legality of homebrew and was pointed to several very interesting legal documents that if I recall correctly, pointed in favor of homebrew. But what good is making homebrew legal if the act of Modding and jailbreaking a console is illegal?


For hours, I tried looking for counter arguments to this whole notion of modding specifically gaming consoles is illegal and only found a few things that potentially contradict, particularly the comments in this thread I found very interesting: https://gbatemp.net/threads/is-modding-the-3ds-illegal.387054/


But this thread was an exception. The more and more I dug through this website, the more and more I saw these generic responses of its legal and only break terms of service. I want to believe this but I need to admit when I am wrong. I’m a very broken person.


The DMCA, from what I have read, clearly states that it is illegal to circumvent protective measures in a system. There are exceptions to this like HVAC systems and cell phones, but none exist for Video Game Consoles. This is due to the idea that modding a video game console would only be used for piracy. While I don’t think any of us deny that there are people who mod consoles to pirate games, that is certainly not the only use. Some examples that come to mind are Project M, Gamecube Controllers for Mario Kart 8, Region Free 3DS, Gamecube Memory Card Backups, other generic game mods. 


These are all things that I have done because I have modded my consoles with none of the things I’ve mentioned having anything to do with piracy.


So why do I say all this? It’s because I need questions answered and some generic answer with no source. I understand I am in the US, but I want to know everything even outside the US. 



Emulators
Emulators have been proven to be legal as shown in the court cases between BLEEM/VGS VS Sony. I get that and the cases make sense to me. My confusion comes from this statement. “So I can play an emulator on my computer, but I can’t on a modded system.” I think most people would agree that emulation can be associated heavily with Piracy. I know many of us don’t have access to equipment capable of ripping roms/ISOs of games. I own a copy of Fire Emblem 7 for the GBA but I have no way of playing rom hacks of it without finding one online. But Emulators still remain legal. So this is my issue, why is it legal on a computer, but heaven forbid I do it on a console because I am not aloud to mod a console.


2.) Terms of Service

That’s what they always say, it violates TOS. According to the DMCA, it’s more than just that. It’s illegal. I know no none ever reads those things but if there was a clause stating, “you’re f***ed if you mod our sh*t,” then I believe it would have been pointed out and people would be more frightened by the act of modding consoles. I boldest community I know is the Linux community with their never ending quest to get Linux on everything from a potato to the Xbox 720. So I guess my question is, is there some TOS out there that says something about legal action? And if there is, why is no one frightened


3.) These communities

Wololo, Reddit, GBATemp, Se7en Sins, etc. all of these websites contain people and software that allow users to modify their consoles. And this right here, is the reason why I am so confused. There are hundereds if not almost a thousand threads on how to mod this or how to mod that. If the DMCA clearly says that we can not mod the things we paid for, the why is the website still up? Why is it aloud to host content that mods consoles? Why are people like SchiresM and various other developers not incarcerated because of their hobby? I know SchiresM did not want his exploit to be used for piracy which is great and all, but it still violates US law. Yes I know many of these people are not from the US and may live in places where it’s okay but that still doesn’t answer the question of why can I still access this site? If GBATemp truly hosts illegal material and is run by people who’s names are publicly known, why hasn’t steps been taken by companies to get it shut down? Why hasn’t Nintendo yeeted this website off the internet or at least from the eyes of US citizens if it truly is a violation of US DMCA laws? Nothing is adding up.




I don’t want to sound like I am against modding consoles because I’m not. It’s one of my favorite things to do, but I need a definitive answer to the questions I have asked. 


My moral compass points towards freedom although I am told to abide by the laws of the land. Give to Ceaser what is Ceasers, But this is a law that to me seems unjust and against other laws such as fair use, right of first sale, and other things.


Please, I need answers. No cookie cutter response of “it’s legal.”

I want someone to show me its legal. I want it to be legal. 

I don’t care about my reputation in this site anymore.


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## Superbronx (Jun 24, 2019)

Stephano said:


> So modding video game consoles is actually illegal?
> 
> 
> For about 5 years, I was under the mindset the modding video game console that you own to play backups that you own and to play homebrew made by others was completely legal. I go to several threads of people asking if this is legal or if that is illegal and on every thread I get the same three responses...
> ...


I do not have the answer to your question but I have one guess. 
I think that this may fall into what is referred to as "the gray area", it seems as though it's not exactly illegal to mod your console as long as you do intend to engage in piracy. Of course, anyone who intends to engage in piracy would not publicly state that to be their intention. 

Also, I would imagine that sites who provide the information necessary to mod consoles would only promote such undertakings to be used only for legal purposes and not openly encourage discussions of piracy. If they wish to remain relevant and still in business. 

It's my guess, if you were to have a friend that you could talk to in private and not on a public forum, and this friend was the administrator of a hacking modding community, he might talk to you more openly about topics such as piracy, the legalities of modding, etc.


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## stitchxd (Jun 24, 2019)

Here is an answer from a lawfirm / insurance broker: (Site: https://www.tfwinsurance.com/2016/05/02/is-it-legal-to-mod-your-own-hardware/)



> Physically modding your console is fine, you can go ahead and gut your Xbox One and put it in a custom Super Nintendo body if you like, but you’re not allowed to alter the firmware that prevents the console from playing pirated games (another ruling we owe to the DMCA).
> {/QUOTE]


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## Alexander1970 (Jun 24, 2019)

LEGAL - The console manufactures tells YOU what is ALLOWED to do on HIS (in the mind of the manufactures License Agreements is the Video Device still HIS property) Video game Device.

ILLEGAL - The console "USER" <-- YOU  (in the mind of the manufactures License Agreements is the Video Device still HIS property) do with HIS buyed Video Device what he wants because he PAID for it.

Highly logical,isn´t it ?


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## stitchxd (Jun 24, 2019)

alexander1970 said:


> LEGAL - The console manufactures tells YOU what is ALLOWED to do on HIS (in the mind of the manufactures License Agreements is the Video Device still HIS property) Video game Device.
> 
> ILLEGAL - The console "USER" <-- YOU  (in the mind of the manufactures License Agreements is the Video Device still HIS property) do with HIS buyed Video Device what he wants because he PAID for it.
> 
> Highly logical,isn´t it ?



US law allows hardware modifications in anyway you like btw. It's not Illegal to mod a console, unless you modified the firmware of said console to play illegal copies of games.


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## Alexander1970 (Jun 24, 2019)

stitchxd said:


> US law allows hardware modifications in anyway you like btw. It's not Illegal to mod a console, unless you modified the firmware of said console to play illegal copies of games.


As you say - US law.


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## stitchxd (Jun 24, 2019)

alexander1970 said:


> As you say - US law.


According to https://en.wikipedia.org/wiki/Modding#Legal_issues (take with a grain of salt I suppose.) Modding in the EU is legal as well as long as you do not include pirated games or firmware to play said pirated games.


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## Stephano (Jun 25, 2019)

stitchxd said:


> US law allows hardware modifications in anyway you like btw. It's not Illegal to mod a console, unless you modified the firmware of said console to play illegal copies of games.



I’ve actually read both of the links you posted before I created this thread. But still things don’t make sense. Yes the law is written out clear as far as far as firmware goes, but why is homebrew legal if involves a consoles firmware being violated? Why is it so rare that legal action is taken to prevent stuff like modding? If it truly is illegal, then do so many sites and videos on YouTube that host the tools needed to mod consoles still remains up? There are videos on YouTube encouroging people to mod their SNES Classics with a good amount of views. Why and how is this all up? Is there actually any legal threat? It really doesn’t look like it to me...

I’m sorry, I just don’t understand these backwards laws.


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## osaka35 (Jun 25, 2019)

It'll vary from country to country. Big companies want to make it illegal so they can control more. But it's inherently legal. You've got to separate "code" from "hardware" in your head.

Nintendo and Sony recently lost a lawsuit where opening up a console voided the warranty. I forget the details.

Basically, they own the code and own its distribution. When you buy something, you own the physical goods, including the hardware and the right to use the code. Think of it as if you were buying a book. You own the physical book, and can read it as much as you like. And you can't copy the words or rewrite using the same words and sell it or reuse the words as if they were your own. But you can certainly make some art out of the pages/words out of the book, or resell the book. They don't have the right to tell you how to use the pages, even if it does have their words on it, except the limits i just talked about.

The breaking of the "lock" is illegal, but it's a bit fuzzy. Mainly because it has to adhere to what I said above. They're protecting their software and its distribution, thus why  you can't "circumvent protections". They want to make it seem like breaking their locks is the equivalent of trying to mess with their distribution. Which is a bit silly, but they're trying to protect their ability to distribute in a world of pirates and super easy to duplicate digital stuff. That struggle aside, you still own the hardware and have rights to usage of the software. You can't redistribute their code or call it your own, but you should be able to do whatever else you want with it. So there's a bit of argumentation on how to appease both sides.

So as far as homebrew goes, since you're running your own code, it's perfectly legal in most places. You own the hardware and the rights to use their software on that particular piece of hardware. running homebrew is the equivalent of writing notes in the margin of a book you bought.  You can do it and resell it just fine, as the licenses are attached to the hardware/book. But you can't use their code and distribute it, because that's more like copying pages from a book and selling those.

Just don't confuse "legal" with "moral"  some places give companies far more rights than they should for whatever anti-consumer reasons. Hope I'm making sense.


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## stitchxd (Jun 25, 2019)

Stephano said:


> Yes the law is written out clear as far as far as firmware goes, but why is homebrew legal if involves a consoles firmware being violated?



I am not able to truly speak beyond basic understanding of laws, HOWEVER the firmware can be "violated" as you put it so long as the copy-right protection is not bypassed and the firmware (or part of) is not distributed as part of the hack. Homebrew by itself cannot bypass copy protection.

an example of this is the switch (without Signature patches) will not install or launch pirated games but can launch homebrew all day. Signature patches are provided separately from the CFW (which does not share code with / from OFW). 

Then you have stuff like FreeShop. FreeShop provides fake tickets to download illegal copies of games directly from Nintendo. This kind of homebrew is actually illegal because it directly bypasses copy-protection.

--------------------- MERGED ---------------------------



osaka35 said:


> It'll vary from country to country. Big companies want to make it illegal so they can control more. But it's inherently legal. You've got to separate "code" from "hardware" in your head.
> 
> Nintendo and Sony recently lost a lawsuit where opening up a console voided the warranty. I forget the details.
> 
> ...



This, this is a PERFECT answer.


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## Jayro (Jun 25, 2019)

If you buy it, it's yours to modify until your heart's content.


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## kuwanger (Jun 25, 2019)

Stephano said:


> The DMCA, from what I have read, clearly states that it is illegal to circumvent protective measures in a system.



The short and long of it is, while the DMCA seems pretty clear on the case, so far virtually all DMCA cases have involved going after people either (1) selling circumvention technology or (2) selling pre-modded hardware with either pirate games or actively encourage the pirating of games.  This is in large part because the US legal system works fundamentally on precedent and judicial interpretation.  Hence, few companies have actively sought to go after the seemingly illegal when it's clear that if they lost, it'd set the precedent that not only the DMCA but any future created laws would likely strictly allow bypassing protection.  It's simply better to go after clear infringement or commercial enrichment over DMCA bypassing than to risk near-permanent enshrining over gray area subjects that prevent most people from involving themselves.

To look at how the DMCA has been abused and how the courts have generally fallen on the side of common sense, look at ink cartridges and the current battle Apple is having with right-to-repair which may in law spell out the limitations of things like the DMCA.  There's nothing magical about a game console vs a PC and nothing inherent about disabling signing that's equivalent to encouraging piracy.  That sort of logic fails quickly in much the same way book contracts and the MPAA's crusade against VHS tapes.

Now, maybe things in the gray will turn out differently if it goes to court.  If that day does happen, the economic repercussions would be enormous.  It's hard to believe that in such a situation the legislature wouldn't act at the behest of many technology companies to rectify such a thing as they realize the ramification of legal-based enforcement of personal/commercial property use. 

tl;dr - Most laws could be read a way that makes most things illegal, but that's really not how the law tends to work.


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## Ryccardo (Jul 4, 2019)

Stephano said:


> I know many of us don’t have access to equipment capable of ripping roms/ISOs of games. I own a copy of Fire Emblem 7 for the GBA but I have no way of playing rom hacks of it without finding one online.


Most people do own, or have ready access to, a system capable of dumping PS1/PS2/... games - GBA may not be to that level but comes close (DS/Lite + flashcard) - with the added legal bonus that most GBA games do not haven anything that could be called in good faith deliberate copy protection (as opposed to a genuine technical requirement that must be satisfied by the system running it)



Stephano said:


> But Emulators still remain legal. So this is my issue, why is it legal on a computer, but heaven forbid I do it on a console because I am not aloud to mod a console.


The emulator is still legal, running it on the console is another question (since often the big deal is modding the console regardless of what you then run on it) even though said emulator may be especially designed for that console



Stephano said:


> That’s what they always say, it violates TOS.


Yeah, which is a private contract, which can set pretty much any non-discriminatory conditions - even then it's an adhesion contract (one where one party doesn't have a true negotiating ability) which are for this reason often of reduced value; they also may only apply to online services (as is the case with most Nintendo consoles); and of course they generally can't override the law



Stephano said:


> If the DMCA clearly says that we can not mod the things we paid for, the why is the website still up?


1- The DMCA is a chiefly American law (that's 1 out of approximately 194 countries in the world, despite the fact of said country being rather bullish when it comes to international relations, and other foreign websites/hosts voluntarily implementing similiar abuse reporting principles), and GBATemp was until rather recently hosted in France

2- The USA, on the other hand, takes the right to free speech quite seriously, and discussing how to perform illegal activities is not by itself a crime (though something can be said about the alleged richest-wins-in-court system) - and actually distributing pirate items on GBATemp happens to be forbidden in the first place 



Stephano said:


> Some examples that come to mind are Project M,


Nintendo probably hates that (and homebrew, and youtube, and free speech, ...) more than piracy - it's more a matter of maintaining absolute dictatorship over their platform!


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## The Real Jdbye (Jul 4, 2019)

Stephano said:


> So modding video game consoles is actually illegal?
> 
> 
> For about 5 years, I was under the mindset the modding video game console that you own to play backups that you own and to play homebrew made by others was completely legal. I go to several threads of people asking if this is legal or if that is illegal and on every thread I get the same three responses...
> ...


SciresM is actually not violating the DMCA. Signature patches are not included with or made by SciresM or the ReSwitched team. There is no copyright protection circumvention built in to Atmosphere. That also means that as long as you are only using CFW to run homebrew you are not circumventing copy protection, so it's 100% legal. When you run games (whether they are your own dumps or pirated), then it would be illegal under the DMCA, keep in mind that the DMCA is a US law and while some other countries have similar laws, some don't. Whereas general copyright protection is worldwide.

The problem with the "circumventing of copy protection" is that it's so vague, it's not entirely clear what it applies to and what it doesn't. Does it apply to emulators for example? They aren't removing the copy protection that's already there, they simply don't have copy protection to begin with, but they still enable loading backed up or pirated games. It could be argued that they are still illegal based on that.
Back when that whole Bleem thing happened I don't think the DMCA was a thing yet. So what may have been legal back then may not be now. Still there haven't been any more court cases to confirm or deny it one way or the other.

Anyway, hosting _information_ on how to circumvent copy protection is not actually illegal to my knowledge. Such a thing was done with the DVD encryption key, and while companies tried to get it taken down from the internet as a whole, they were largely unsuccessful and to my knowledge no legal action was ever taken. Why is this? Maybe because of how vague the DMCA is on some points the companies don't think they would win, but that certainly won't stop them from using scare tactics to get their way without involving the courts. I guess that's why they don't try to prosecute sites like GBAtemp as well.
Hell, it's even hosted on Wikipedia these days: https://en.wikipedia.org/wiki/AACS_encryption_key_controversy

DMCA pretty much overrides fair use where applicable, to my understanding. Fair use these days is almost nonexistant.

FYI, playing a downloaded ROM/ISO even if you own the game is still copyright infringement. It has to be your own dump.


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## Captain_N (Jul 5, 2019)

So what if its illegible. You ever j-walked? Ever downloaded a song u did not buy? big deal.


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## Stephano (Jul 5, 2019)

osaka35 said:


> It'll vary from country to country. Big companies want to make it illegal so they can control more. But it's inherently legal. You've got to separate "code" from "hardware" in your head.
> 
> Nintendo and Sony recently lost a lawsuit where opening up a console voided the warranty. I forget the details.
> 
> ...



While I think your answer is a very, very good and I agree with it 100%, the whole "Breaking the lock" thing I find interesting. Let me use the PSP as an example. The PSP is what got me into modding consoles. I put sooooooooo much homebrew on that thing that I had to have 4 memory cards for it all. However, while the only thing I put on it was homebrew, wouldn't installing CFW Pro 6.60 by DMCA be illeagal, or just a bit fuzzy as you said?



stitchxd said:


> I am not able to truly speak beyond basic understanding of laws, HOWEVER the firmware can be "violated" as you put it so long as the copy-right protection is not bypassed and the firmware (or part of) is not distributed as part of the hack. Homebrew by itself cannot bypass copy protection.
> 
> an example of this is the switch (without Signature patches) will not install or launch pirated games but can launch homebrew all day. Signature patches are provided separately from the CFW (which does not share code with / from OFW).



What you said about the switch is perfectly sound as it has no conflicts with the DMCA. But what I did to my PSP circumvents that protection correct. Don't get me wrong, I don't care if it did break the law, I just want everything to be crystal clear to me.



kuwanger said:


> The short and long of it is, while the DMCA seems pretty clear on the case, so far virtually all DMCA cases have involved going after people either (1) selling circumvention technology or (2) selling pre-modded hardware with either pirate games or actively encourage the pirating of games. This is in large part because the US legal system works fundamentally on precedent and judicial interpretation. Hence, few companies have actively sought to go after the seemingly illegal when it's clear that if they lost, it'd set the precedent that not only the DMCA but any future created laws would likely strictly allow bypassing protection. It's simply better to go after clear infringement or commercial enrichment over DMCA bypassing than to risk near-permanent enshrining over gray area subjects that prevent most people from involving themselves.



I know there do exist court cases that prove this but my search efforts haven't lead me to a concrete example. I want to find one but I need someone to point me in the right directions. 
But I agree, it does makes sense to go after clear infringements like that one guy leaking the PS3 keys and selling modded consoles on the internet with preloaded games.



kuwanger said:


> To look at how the DMCA has been abused and how the courts have generally fallen on the side of common sense, look at ink cartridges and the current battle Apple is having with right-to-repair which may in law spell out the limitations of things like the DMCA.  There's nothing magical about a game console vs a PC and nothing inherent about disabling signing that's equivalent to encouraging piracy.  That sort of logic fails quickly in much the same way book contracts and the MPAA's crusade against VHS tapes.
> 
> Now, maybe things in the gray will turn out differently if it goes to court.  If that day does happen, the economic repercussions would be enormous.  It's hard to believe that in such a situation the legislature wouldn't act at the behest of many technology companies to rectify such a thing as they realize the ramification of legal-based enforcement of personal/commercial property use.
> 
> tl;dr - Most laws could be read a way that makes most things illegal, but that's really not how the law tends to work.



I agree



Ryccardo said:


> The emulator is still legal, running it on the console is another question (since often the big deal is modding the console regardless of what you then run on it) even though said emulator may be especially designed for that console



I should I worded myself better. I know emulators are legal (Sony VS BLEEM/VGS) and I'm all for it.



Ryccardo said:


> Yeah, which is a private contract, which can set pretty much any non-discriminatory conditions - even then it's an adhesion contract (one where one party doesn't have a true negotiating ability) which are for this reason often of reduced value; they also may only apply to online services (as is the case with most Nintendo consoles); and of course they generally can't override the law



I do know that. It like how a state law can't overturn a national law. I don't care about breaking a companies TOS. I don't trust them enough to make me happy and provide things I would like... Nintendo...



Ryccardo said:


> 1- The DMCA is a chiefly American law (that's 1 out of approximately 194 countries in the world, despite the fact of said country being rather bullish when it comes to international relations, and other foreign websites/hosts voluntarily implementing similiar abuse reporting principles), and GBATemp was until rather recently hosted in France



I worded this statement pretty badly. I meant to convey "Why would this website still be accessible to american viewers." But yes, I am aware.



Ryccardo said:


> 2- The USA, on the other hand, takes the right to free speech quite seriously, and discussing how to perform illegal activities is not by itself a crime (though something can be said about the alleged richest-wins-in-court system) - and actually distributing pirate items on GBATemp happens to be forbidden in the first place



This is true and I failed to consider that teaching someone how to do something is not illegal. My mistake, thank you for the correction.



Ryccardo said:


> Nintendo probably hates that (and homebrew, and youtube, and free speech, ...) more than piracy - it's more a matter of maintaining absolute dictatorship over their platform!



This get's my blood boiling. I could rant on Nintendo about this stuff for thousands and thousands of words, but no one would want to read that. R.I.P in peace, Project M, you sweet prince.



The Real Jdbye said:


> SciresM is actually not violating the DMCA. Signature patches are not included with or made by SciresM or the ReSwitched team. There is no copyright protection circumvention built in to Atmosphere. That also means that as long as you are only using CFW to run homebrew you are not circumventing copy protection, so it's 100% legal. When you run games (whether they are your own dumps or pirated), then it would be illegal under the DMCA, keep in mind that the DMCA is a US law and while some other countries have similar laws, some don't. Whereas general copyright protection is worldwide.



SciresM was a VERY bad example to what I was saying above and I would like to apologize. I am well aware that everything he has done is legal. Thank you for pointing out my mistake.

I do know that the DMCA is a US law, and I was hoping for both US answers as well as hoping to become knowledgeable over other countries laws as well. I should have made that clearer. While I manly care about US law, foreign laws interest me as well and I wanted to them as well.



The Real Jdbye said:


> The problem with the "circumventing of copy protection" is that it's so vague, it's not entirely clear what it applies to and what it doesn't. Does it apply to emulators for example? They aren't removing the copy protection that's already there, they simply don't have copy protection to begin with, but they still enable loading backed up or pirated games. It could be argued that they are still illegal based on that.
> Back when that whole Bleem thing happened I don't think the DMCA was a thing yet. So what may have been legal back then may not be now. Still there haven't been any more court cases to confirm or deny it one way or the other.



I would asume that they would stay legal since there has not been a challenger as of yet to overturn those rulings. Since Homebrew in and of itself is legal, an emulator that does not use any code from the console itself would also be legal. It may be a dumb example, but what about 3rd party accessories. Nintendo makes Switch cases, but I can by a case from a 3rd party. They are not stolen, were probably made in their own factory, and they probably didn't steal CAD Models and such. 



The Real Jdbye said:


> Anyway, hosting _information_ on how to circumvent copy protection is not actually illegal to my knowledge. Such a thing was done with the DVD encryption key, and while companies tried to get it taken down from the internet as a whole, they were largely unsuccessful and to my knowledge no legal action was ever taken. Why is this? Maybe because of how vague the DMCA is on some points the companies don't think they would win, but that certainly won't stop them from using scare tactics to get their way without involving the courts. I guess that's why they don't try to prosecute sites like GBAtemp as well.
> Hell, it's even hosted on Wikipedia these days: https://en.wikipedia.org/wiki/AACS_encryption_key_controversy



You are right, and I corrected myself in one of the replies above this one.



The Real Jdbye said:


> DMCA pretty much overrides fair use where applicable, to my understanding. Fair use these days is almost nonexistant.



Oof



The Real Jdbye said:


> FYI, playing a downloaded ROM/ISO even if you own the game is still copyright infringement. It has to be your own dump


Sadly, that is true. I don't agree with it but you are correct.



Captain_N said:


> So what if its illegible. You ever j-walked? Ever downloaded a song u did not buy? big deal.



It is not about it being a big deal, its about me trying to figure out what truly is the law and seeing which ones are unjust. I don't care about modding consoles because screw Nintendo. RIP PM.


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## Ryccardo (Jul 5, 2019)

Stephano said:


> the whole "Breaking the lock" thing I find interesting. Let me use the PSP as an example. The PSP is what got me into modding consoles. I put sooooooooo much homebrew on that thing that I had to have 4 memory cards for it all. However, while the only thing I put on it was homebrew, wouldn't installing CFW Pro 6.60 by DMCA be illeagal, or just a bit fuzzy as you said?


That's a question with no answer yet, as far as I know:

1- Sega vs Accolade famously proven that, if infringement (in that case, of a trademark) is the only practical way to run your legal unlicensed software, whoever does that isn't at fault;

2- DS flashcards (and other unlicensed accessories, including the Action Replay which is made by a fairly reputable and identifiable company, and sold in some mainstream stores) have to do the same to work on DSi/3DS - copying fairly large parts of commercial games (though never to the point the game is playable in the common sense meaning of the word)

3- the DMCA, despite its full name, has rather little to do with copyright itself, setting instead some parallel regulations (that even conflict with copyright in some ways, both as written and as commonly implemented - see for example whether or not it is illegal to share keys, which are clearly uncopyrightable due to lacking any human creative effort)

4- I'm not that familiar with the technical details of the PSP, but does CFW bypass what can be called a functional copy protection system for a non-interoperability reason? After all both backups and original homebrews can be in iso/cso/dax/whatever or eboot.pbp format...


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## The Real Jdbye (Jul 5, 2019)

Stephano said:


> I would asume that they would stay legal since there has not been a challenger as of yet to overturn those rulings. Since Homebrew in and of itself is legal, an emulator that does not use any code from the console itself would also be legal. It may be a dumb example, but what about 3rd party accessories. Nintendo makes Switch cases, but I can by a case from a 3rd party. They are not stolen, were probably made in their own factory, and they probably didn't steal CAD Models and such.


That's usually the case. But then you have emulators for newer systems (even going back to the GC/Wii) where they need to include encryption keys in order to read the game data. That sounds a lot like circumvention of copy protection to me.


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## cots (Jul 6, 2019)

Simply injecting a Switch payload violates the DMCA (aka is Illegal) and any tool used to do this with would also be complicit. Atmosphere alone might not violate the DMCA, but if you use it in a manner that does violate the law then it's also complicit. Sorta like how you can buy a knife, but if you use it in a murder it becomes the tool you used to commit the murder with.

Don't kid yourself. If you playing copied games on your Switch you're violating USA laws. That also includes simply bypassing copy protection mechanisms to boot into Ubuntu. Although, I doubt you'd get in any legal trouble for simply running Ubuntu, but pirating games can land you up in some serious trouble.


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## kuwanger (Jul 6, 2019)

Ryccardo said:


> 1- Sega vs Accolade famously proven that, if infringement (in that case, of a trademark) is the only practical way to run your legal unlicensed software, whoever does that isn't at fault;



Admittedly that case was decided before the DMCA, so it's not as trivial as pointing out the notion the interoperability is a defense.  Having said that, it's definitely possible the courts would still side on things like 1st amendment protections as basically an excuse to ignore law they seem as absurd.



The Real Jdbye said:


> But then you have emulators for newer systems (even going back to the GC/Wii) where they need to include encryption keys in order to read the game data. That sounds a lot like circumvention of copy protection to me.



It does to me as well, but see above.  US courts are "funny" in their frequently willingness to ignore blatant legislative action to some effect because they think it wrong as some fundamental level.  The point at which you can't run code on a computer you own without the computer maker's blessing may be one of them.  We really don't have clear precedent, though, one way or the other since the DMCA came after the Accolade case, and i stated above few companies have even remotely tried to use the DMCA to that extreme.  I presume it's because they don't want another Accolade-like ruling.



cots said:


> Simply injecting a Switch payload violates the DMCA (aka is Illegal) and any tool used to do this with would also be complicit.



True enough.  This is the major reason why when the DMCA was drafted and signed into law there was so much protest in the tech community about it.  At the time, they feared it'd turn into a dystopian future where Microsoft Palladium would lock out all competition forever, turning them into information gatekeepers.  Thankfully a whole host of things, including MS's anti-trust trial and the rise of Google, really undermined that future.

Today, I'm a little more hopeful about the future because we've now had a whole generation of computer users who have lived with the DMCA hanging over their head.  Any actual serious use of it could well motivate them to push the legislature to the do the right thing and spell out interoperability as a legitimate basis to violate the DMCA, significantly undercutting its power.  I mean, legally Ransomware authors could argue DMCA violations for people trying to bypass their malware.  It's just absurd.


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## cots (Jul 6, 2019)

kuwanger said:


> True enough.  This is the major reason why when the DMCA was drafted and signed into law there was so much protest in the tech community about it.  At the time, they feared it'd turn into a dystopian future where Microsoft Palladium would lock out all competition forever, turning them into information gatekeepers.  Thankfully a whole host of things, including MS's anti-trust trial and the rise of Google, really undermined that future.
> 
> Today, I'm a little more hopeful about the future because we've now had a whole generation of computer users who have lived with the DMCA hanging over their head.  Any actual serious use of it could well motivate them to push the legislature to the do the right thing and spell out interoperability as a legitimate basis to violate the DMCA, significantly undercutting its power.  I mean, legally Ransomware authors could argue DMCA violations for people trying to bypass their malware.  It's just absurd.



Indeed. It needs to be either updated or replaced. We've seen jail breaking smart phones given an exemption. I don't see why booting into L4T Ubuntu on your Switch should be considered illegal any longer. While I had my doubts about the DMCA when it passed, the law did serve a purpose and the world didn't end. Like any old law there are flaws and it can sadly be abused. Time to update it!


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## Cylent1 (Jul 7, 2019)

Only if you bought the system from a retail store!
I buy all my systems from a pawn shop so they can shove whatever up their asses if they think they can sue me!

Basically they think they still own the machine.  What happens when someone creates a full blown custom firmware without any video game company code?
They own the firmware not the hardware!

It's like the car dealership sells you a car but tells you are not allowed to change out the stock radio or put a different brand of wipers on it!
I DON'T FLY WITH THAT BULLSHIT!


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## Alexander1970 (Jul 7, 2019)

They want to have it all BLACK and WHITE on the PAPER.

For EU countries (an example):

If CASE 1 (for Example Nintendo WiiU) coincides with TEXT PARTS from Article 34/3 THEN it is illegal.
That would be the nicest and easiest way for the Device Manufacturer.

But "unfortunately" it is not so easy today.EVERY Case is different.
And so Article 34/3 just gets adjusted to Article 34/3/A  (for Nintendo Switch for example).

And when a new Nintendo device comes,Article 34/3/A becomes Article 34/3/A/01 for example.

After the next "government change" there is maybe an Nintendo "hater" in it and after an "government meeting" they decide "Modding an ALL Nintendo devices is BAD" and change

Article 34/3
Article 34/3/A
Article 34/3/A/01

to Article "Modding an ALL Nintendo devices is BAD"  and numbering it EU Article 13 (sorry this is pure *sarcasm   )*


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## The Real Jdbye (Jul 7, 2019)

cots said:


> Indeed. It needs to be either updated or replaced. We've seen jail breaking smart phones given an exemption. I don't see why booting into L4T Ubuntu on your Switch should be considered illegal any longer. While I had my doubts about the DMCA when it passed, the law did serve a purpose and the world didn't end. Like any old law there are flaws and it can sadly be abused. Time to update it!


L4T should be fully legal because it does not rely on or use any Nintendo code to function. I'm not a lawyer though.


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## Alexander1970 (Jul 7, 2019)

A Question please:

"Altering" a original FIRMWARE of an DEVICE is ILLEGAL.
"Putting/adding some Information" into a original FIRMWARE is LEGAL.

Right ?


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## LMSFAN11 (Jul 17, 2019)

What about selling and buying consoles in canada


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## osaka35 (Jul 17, 2019)

cots said:


> Simply injecting a Switch payload violates the DMCA (aka is Illegal) and any tool used to do this with would also be complicit. Atmosphere alone might not violate the DMCA, but if you use it in a manner that does violate the law then it's also complicit. Sorta like how you can buy a knife, but if you use it in a murder it becomes the tool you used to commit the murder with.
> 
> Don't kid yourself. If you playing copied games on your Switch you're violating USA laws. That also includes simply bypassing copy protection mechanisms to boot into Ubuntu. Although, I doubt you'd get in any legal trouble for simply running Ubuntu, but pirating games can land you up in some serious trouble.


That's one interpretation of the law. which is a very convoluted law. You'll notice video game companies don't go after people who do this because it could easily be ruled in a court it does not actually violate the DMCA. Things like GEOhot were settled out of court, and had specific circumstances, but is definitely one of the only cases involved with this sort of thing. The fact they settled out of court shows they wanted it to stop, but weren't overly confidence where the results would be. If they had lost, which they very well could have, it would mean these things could be done very openly and their standing that "any lock we make should not be legal to break" is more tentative. Like I mentioned above, it's currently a tug-of-war between corporations wanting complete control and end-users who have spent money and own the physical hardware (but just the license to use the software). I'd present it's pretty dang illegal of them to lock their software to the hardware and any attempt to use the hardware around their software somehow is your fault. It it corrupting the agreement of ownership of hardware. It should definitely not continue.

it's more akin to buying a knife, but being told if you ever do anything other than cut into brandname(c) products with it, you're illegally using the knife. it's a bit of a silly law.


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## AkikoKumagara (Jul 17, 2019)

Depends on the laws where you live. I'm under the impression, that generally, here in the US, modding is legal for a few reasons (but does come with some downsides such as a voided warranty). ToS are also typically not legally binding and seem to often serve as more of a "gotcha" if they ever do become relevant to some sort of litigation. While not being law, they would be a compelling piece of defense for the company who delivered them to the consumer, and could win a case for them by the simple fact that the consumer agreed to them.

Outside of the facts, and into opinions: I personally believe when you buy something, you should have every right to use it how you wish as long as it doesn't damage anyone else. This means, outside of piracy, I believe all forms of software modification, as well as hardware modification, should be legally protected. I also am very much a staunch defender and proponent of right-to-repair law.

Edit: Furthermore, things like online bans for using modified hardware and/or software are completely justified.


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## DemonicMyst (Jul 12, 2021)

alot of things violate copyright law but is accepted by companies because taking it to court would harm pr take jifs its a industry based on Violating copyright law hell twitch is a grey area in copyright law playing a videogame isnt fair use a few decades ago fan-fiction was commonly taken down by copyright law  alot of things that are ilegal under dmca are culturaly accepted and would cause bad pr for componies to go after u for it. Unless your selling moddefied consoles or modifying them to play pirated games its not worth the bad pr to go after u when its a lawsuit nit a criminal offence unless done with pure intent to pirate or make a profit and what do they have to gain suing consumers who couldnt pay the fine.  

in consoles the software to prevent pirating is in firmware and anti piracy measures prevent custom code on consoles  so the methods of modifying consoles tend to break this law acidently  

physical modifications are not illegal tho


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## stanleyopar2000 (Jul 12, 2021)

just fucking softmod it and don't tell the entire world what you did


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## DemonicMyst (Jul 12, 2021)

as said they tend not to care unless u sell them or are directly causing damages to the company


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## Julie_Pilgrim (Jul 13, 2021)

the fbi breaking into my house because i have a cfw 3ds

--------------------- MERGED ---------------------------



Cylent1 said:


> Only if you bought the system from a retail store!
> I buy all my systems from a pawn shop so they can shove whatever up their asses if they think they can sue me!


that's.... not how it works


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## Cylent1 (Jul 13, 2021)

Scott_pilgrim said:


> the fbi breaking into my house because i have a cfw 3ds
> 
> --------------------- MERGED ---------------------------
> 
> ...


Sure it does considering I am old school and never played an online game and never will go on eshop or anything like that!
They have no right since I didn't adhere to their terms and agreements!

I know America is no longer a free country and went communism, but they can send all the goon squad they want, but I will guarantee at least one of them wouldn't make it back out my driveway!


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## AkikoKumagara (Jul 13, 2021)

Cylent1 said:


> I know America is no longer a free country and went communism


Imagine believing this, lmao. America is far from being free but even farther from being Communist.

The way these terms of use agreements and EULAs work are thus: by simply using the product, your agreement is implied, however these agreements are rarely ever legally binding. You actually will see a EULA screen when you set up most consoles for first time use which require agreement to proceed. They can be used in court but might just be ignored if brought up depending on the infraction. Modding your console is not illegal here in the US, anyway, assuming you're not distributing something copyrighted or breaking piracy laws or something.
In someplace like Japan (a more conservative nation, to counter your 'Communism' point), console modding is illegal, as well as many forms of software modification.


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## Julie_Pilgrim (Jul 13, 2021)

Sophie-bear said:


> Imagine believing this, lmao. America is far from being free but even farther from being Communist.
> 
> The way these terms of use agreements and EULAs work are thus: by simply using the product, your agreement is implied, however these agreements are rarely ever legally binding. You actually will see a EULA screen when you set up most consoles for first time use which require agreement to proceed. They can be used in court but might just be ignored if brought up depending on the infraction. Modding your console is not illegal here in the US, anyway, assuming you're not distributing something copyrighted or breaking piracy laws or something.
> In someplace like Japan (a more conservative nation, to counter your 'Communism' point), console modding is illegal, as well as many forms of software modification.


"communism is when joe biden"-stalin, probably


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## Cylent1 (Jul 14, 2021)

Sophie-bear said:


> Imagine believing this, lmao. America is far from being free but even farther from being Communist.
> 
> The way these terms of use agreements and EULAs work are thus: by simply using the product, your agreement is implied, however these agreements are rarely ever legally binding. You actually will see a EULA screen when you set up most consoles for first time use which require agreement to proceed. They can be used in court but might just be ignored if brought up depending on the infraction. Modding your console is not illegal here in the US, anyway, assuming you're not distributing something copyrighted or breaking piracy laws or something.
> In someplace like Japan (a more conservative nation, to counter your 'Communism' point), console modding is illegal, as well as many forms of software modification.


I have been living on this rock for 46 years and never once it was this bad with the left silencing and cancelling conservatives.  
It amounts to digital book burning just like the nazi's did.  Tearing down sculptures of history jiust the Nazi's did.
Trying to disarm citizens just like the Nazi's did.  Also you are no longer allowed to attend church by your own free will without facing reprocussions. Trying to jail political opposotion just like the nazi's did.  And last but not least, your own Government turned on you just like the Nazi's did. So tell me again how USA is not a communist country?


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## AkikoKumagara (Jul 14, 2021)

Cylent1 said:


> I have been living on this rock for 46 years and never once it was this bad with the left silencing and cancelling conservatives.
> It amounts to digital book burning just like the nazi's did.  Tearing down sculptures of history jiust the Nazi's did.
> Trying to disarm citizens just like the Nazi's did.  Also you are no longer allowed to attend church by your own free will without facing reprocussions. Trying to jail political opposotion just like the nazi's did.  And last but not least, your own Government turned on you just like the Nazi's did. So tell me again how USA is not a communist country?


lol, that's hilarious.
Curious what you think Communism means.


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## Cylent1 (Jul 14, 2021)

Sophie-bear said:


> lol, that's hilarious.
> Curious what you think Communism means.


I will not entertain a blind obedient sheep!


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## deinonychus71 (Jul 14, 2021)

Cylent1 said:


> I will not entertain a blind obedient sheep!



No but really though, curious what you think communism means.
Lots of hyperbolic thoughts these days sure but no sign of communism, far from it.

Heck the US can't even get universal healthcare lol. Imagine that for a so-called first world country.


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## CMDreamer (Jul 14, 2021)

I can do whatever I want to my legally buyed/owned console (even if I buyed it second hand), because I've payed for it. I can even. if I want, destroy it completely and the OEM can't do nothing about it, simply because US laws are not universal and only apply in US and its territories (a fact they love to forget about).

Happy me I don't live in the US, so...


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## WG481 (Jul 14, 2021)

Stephano said:


> So modding video game consoles is actually illegal?
> 
> 
> For about 5 years, I was under the mindset the modding video game console that you own to play backups that you own and to play homebrew made by others was completely legal. I go to several threads of people asking if this is legal or if that is illegal and on every thread I get the same three responses...
> ...


I've thought long and hard about a loophole in this.
The terms of service is in effect once you agree with it, however, most preinstalled OS'es (3DS, Wii U, whatever the shet you want to mod) force you to sign Terms and Conditions before access to things like SD are given. If someone manages to rip open a hole in the ToS or TaC, thus, you are not breaking any laws by modding the shet out of it.


I might petition the DMCA or some mo'fricking piece of the Gov't to allow stuff for consoles because, let's be fair, *we bought the systems. I never saw on my receipt the words "this console can be repossessed by Nintendo. Unlicensed modification is not allowed." To heck with that. Aren't there some consumer rights that I have with the product? I own every minute piece of hardware within that system. 

If I modify it without agreeing to terms, I have plausible deniability that I never saw them. In fact, I never agreed to them or declined them. You can't sue me.

Modifying things you own should be a consumer right. The European Union has cut down on certain freedoms (like bundling Edge with Windows), and America should do the same. Let me edit my BIOS, let me flash my NAND, let me do what I want with the shet I own because you are a bunch of conglomerate jerks when it comes to this stuff. Last I remember, you make these updates for security. 99% of the time, it's for your OS'es security, not ours or our data's.
*
Sorry for that rant there folks, but can we agree we're feeling that way?


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## AkikoKumagara (Jul 14, 2021)

WG481 said:


> I've thought long and hard about a loophole in this.
> The terms of service is in effect once you agree with it, however, most preinstalled OS'es (3DS, Wii U, whatever the shet you want to mod) force you to sign Terms and Conditions before access to things like SD are given. If someone manages to rip open a hole in the ToS or TaC, thus, you are not breaking any laws by modding the shet out of it.
> 
> 
> ...



Biden signed an executive order on Right to Repair recently that may help this cause at least a little bit. I know it's not exactly the same thing, but having the right to open up and repair your devices is vital to modification thereof. Plus, like I have said previously, most of those things in the EULAs aren't really legally binding.


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## KleinesSinchen (Jul 14, 2021)

Sophie-bear said:


> Imagine believing this, lmao. America is far from being free but even farther from being Communist.
> 
> The way these terms of use agreements and EULAs work are thus: by simply using the product, your agreement is implied, however these agreements are rarely ever legally binding. You actually will see a EULA screen when you set up most consoles for first time use which require agreement to proceed. They can be used in court but might just be ignored if brought up depending on the infraction. Modding your console is not illegal here in the US, anyway, assuming you're not distributing something copyrighted or breaking piracy laws or something.
> In someplace like Japan (a more conservative nation, to counter your 'Communism' point), console modding is illegal, as well as many forms of software modification.


*This is surprising to me.* I assumed that such implicit contracts would work in the USA, but I completely lack the knowledge there. For expressing the things in the following text, I got a lot of backlash a few years ago. Some people really bring forward crude arguments for explaining why virtually anything big companies do is a) legal b) justified and c) _"JUST PROTECTING THEIR IP!!11"_. And everyone who disagrees, with or without good arguments, is an idiot and just whines because they want to pirate.
==========================





It would be helpful if we got an overview how different countries see this.
*Disclaimer: I'm not a lawyer*, but I have read quite a bit about such topics, partially written by lawyers, so I will present what I think is truth in Germany – again,* I'm not a lawyer*:

I'm pretty sure the method _"By opening the box, you agree to the terms inside the box."_ will generally not work here (this includes _"You could have read it on the internet before."_ ). Still there are a lot of people convinced a click on accept is legally binding in any case no matter what is written in the EULA and an accepting click will heal all possible violations of laws. Especially salespersons in retail shops are good defending at this kind of circular reasoning. Not only consoles show an EULA before usage. What salespersons often forget or ignore is the fact that buying a product is considered a purchase contract with the *seller, not the manufacturer*. There is no contract between manufacturer and customer. Implied warranty is something the seller has to give according to terms the law defines. Manufacturer warranty (with warranty terms by the manufacturer) is completely optional, can be added but does not replace the seller's responsibilities.
Staff in retail shops audibly grind their teeth when you answer this when they tried: "Contact the manufacturer hotline and send it in!" on warranty claims.

(Continued) usage of a device I already paid for does not imply compliance with some "Terms of use". Same goes for licensed, commercial software. Surprising clauses are regularly scraped in court and some contract I get to see after purchasing is null and void.



Back to console modding:
The manufacturer can forbid whatever they want, it is the law the end user has to be concerned of. EULA after purchase? As already mentioned null and void. *Executing my own unsigned code is perfectly legal, as well as modifying game saves, no doubt about this.* I hope the Japanese laws don't spread across the world. This is horrible!
Now *the big* question: *Copyright laws?* Is copyright a possibility to outlaw console modification because it might enable piracy?
_"Backups of software may be created if this is necessary to ensure future usability. The right to make such backup copies may not be contractually forbidden. The regulations in [anti-circumvention laws §§] do not apply on software."_
Is a backup of a game needed to ensure future usability?
Disc rot. Disc drives failing. Children breaking discs. Modern TV not supporting analogue input requiring possibly expensive add-ons for lag-free digital conversion. Loss/theft of a game I have a license for. 3DS game carts failing recently. I think we got this covered.

I must say I would not dare to offer paid modding services, either hard- or softmod, because somebody might argue such a service was enabling piracy and therefore financially profiting from piracy (and I don't want a ton of allegations because a user tried hex-editing SysNAND with GodMode9)

If manufacturers are able to detect modification, they may ban users from online services (big surprise here: They clearly have the right to make the rules on their own computers/servers. And they insist on this right they want users not to have very much…).
Bricking modified consoles with a forced update on a retail game might be a criminal act (computer sabotage) in addition for the user/victim having the possibility to claim for damages. The hard part is proving it was intentional bricking and not: _"We are terribly sorry, but your modification turned out to be incompatible with the update. We don't test third-party modifications in house. Thank you for your understanding." _I would consider the Wii 003 brick to be computer sabotage as it directly states to be an intentional brick. Especially problematic since the owner of a region changed Korean Wii might not even be aware of a region change by a previous owner.


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## WG481 (Jul 14, 2021)

Sophie-bear said:


> Biden signed an executive order on Right to Repair recently that may help this cause at least a little bit. I know it's not exactly the same thing, but having the right to open up and repair your devices is vital to modification thereof. Plus, like I have said previously, most of those things in the EULAs aren't really legally binding.


Another loophole is if you're a minor. Since minors can't exactly make a contract, they become voided or honored depending on their decision. Just blindly agree and mess the frick around with it.

Note: I am not a lawyer you should not take legal advice from me.


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## slaphappygamer (Oct 12, 2021)

If only someone has a lawyer friend.


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## Julie_Pilgrim (Oct 12, 2021)

slaphappygamer said:


> If only someone has a lawyer friend.


and if only that lawyer had a spot on our official podcast


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## slaphappygamer (Oct 12, 2021)

Julie_Pilgrim said:


> and if only that lawyer had a spot on our official podcast


YOU KNOW OF A LAWYER!!?!??


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