The never-ending legal battle that sees Nintendo face off against the latest copyright circumventing piracy device continues with two brand new lawsuits. On May 15th, Nintendo filed a couple of lawsuits involving entities responsible for reselling devices used for the "sole purpose of which is to hack the Nintendo Switch video game console in order to allow people to play pirated video games." The first lawsuit is against a group of websites and their respective "John Doe" owners, for anxchip.com, axiogame.com, flashcarda.com, mod3dscards.com, nx-card.com, sxflashcard.com, txswitch.com, and usachips.com, while the second suit specifically targets Tom Dilts Jr. and their company Uberchips.

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF OHIOWESTERN DIVISIONNINTENDO OF AMERICA INC.
Plaintiff
,v.
TOM DILTS, JR.
and
UBERCHIPS, LLC, d/b/a UBERCHIPS.COM

Plaintiff Nintendo of America Inc., by and through its counsel, on personal knowledge as to its own actions and on information and belief as to the actions, capabilities, and motivations of others, hereby alleges as follows:

What all these sites have in common is that they sell Team Xecuter's SX dongle, which allows users to bypass the protection on the Nintendo Switch in order to load custom firmware. Nintendo alleges that these products are used purely for piracy. In the past, Nintendo's taken on TX multiple times, perhaps most notably in 2018 where they won a lawsuit against several people who were selling hacked NES Classic systems and SX chips for the Switch on Offerup.

Nintendo is seeking compensation for "irreparable" damages to the company, as all of the websites have warehouses within the United States, and thus fall within the confines of the law. The monetary demands amount to $2,500 per violation of 17 U.S.C. 1201 (a DMCA provision), as well as $150,000 per violation of Nintendo's rights under the U.S. Copyright Act, in addition to possibly requesting profits the resellers received from selling the offending devices.

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[HideoKojima]

Two years from now there will be people on this forum arguing about which exploit is better for the new Nintendo console ...

 

[8BitWonder]

@HRudyPlayZ & @8BitWonder

They will sue Atmosphere too because they didn't make the proper security features on their CFW to block piracy.

You mean like in Atmosphere v0.11.0 where they reflected the changes to HOS 10.0.0 that moved ACID checks into loader?

 

[Deleted User]

I'm slightly surprised at how quickly Nintendo's acted but I guess it's not totally unexpected.

These devices will just end up on aliexpress - what can Nintendo do then?

 

[Rahkeesh]

Possibly, but it could also be obtained through reverse-engineering, which can be permitted. Although, as SX is obviously closed-source, there's no way to be completely sure...

Its not "possible", TX is absolutely using Nintendo code in their XCI loader, not sure how most here forgot that. Nintendo may not be able to prove it in court, but such things have happened in the past, BnetD comes to my mind when Blizzard claimed they could reproduce some bugs from their code in BnetD's server emulators and they won.

 

[Deleted User]

You mean like in Atmosphere v0.11.0 where they reflected the changes to HOS 10.0.0 that moved ACID checks into loader?

What does that mean in layman's terms?

 

[Technicmaster0]

Shouldn't it be easy to argue that SXOS isn't an actual operating system? I mean it's just patches and partly reimplementations for the official OS.

 

[8BitWonder]

What does that mean in layman's terms?

People need to recompile loader without the check, or make loader patches alongside sigpatches to circumvent the changes.
Otherwise (illegitimate) installed content won't work.

 

[Goku1992A]

You mean like in Atmosphere v0.11.0 where they reflected the changes to HOS 10.0.0 that moved ACID checks into loader?

Atmosphere should just stop making CFW all together because honestly it's for piracy. Let SXOS be the face of piracy. When it comes down to them being in court they can say that they stopped producing CFW

Besides these end users are not loyal anways lol once atmosphere stop supporting future CFW its going to lead people into getting SXOS anyway if they want to continue to enjoy future games

 

[Deleted User]

People need to recompile loader without the check, or make loader patches alongside sigpatches to circumvent the changes.
Otherwise (illegitimate) installed content won't work.

Which makes piracy more difficult, right?

 

[8BitWonder]

When it comes down to them being in court they can say that they stopped producing CFW

Again, Nintendo is not going to take them to court because Atmosphere does not outright enable piracy or use copyrighted code.

Besides these end users are not loyal anways lol once atmosphere stop supporting future CFW its going to lead people into getting SXOS anyway if they want to continue to enjoy future games

Funny you say that, considering more than half of SXOS compatibility updates are ripped straight from Atmosphere.

That aside, Atmosphere is open source. There have been plenty of forks and if active development were to come to a close I can assure you another group would pick it up pretty fast.

Which makes piracy more difficult, right?

Yes.

 

[HRudyPlayZ]

Atmosphere should just stop making CFW all together because honestly it's for piracy. Let SXOS be the face of piracy. When it comes down to them being in court they can say that they stopped producing CFW

Besides these end users are not loyal anways lol once atmosphere stop supporting future CFW its going to lead people into getting SXOS anyway if they want to continue to enjoy future games

If you really want to turn this thread into another SXOS VS Atmosphere post, Atmosphere has sysmodules and support for more homebrew. XCI can also be installed legitimately by using a custom made extractor instead of Big N's code. Also, there's a high chance that A, Atmosphere will continue to update to future firmwares, as Nintendo cannot patch the vulnerability on older switches, B, a lot of people might just use multiple emunands for higher FWs anyways and C, Atmosphere isn't SX, and where SX is objectively illegal by their marketing and their use copyrighted code, Atmosphere is still in the gray area of console hacking, like i said, if Nintendo attacked Atmosphere, they wouldn't have a lot of arguments as the keys and sigpatches aren't included in it, which means that it doesn't allow piracy, which also means that they would lose the case and would make console hacking legal, which Nintendo doesn't want.

 

[BaamAlex]

ah, a young one
let me tell you of ye olde times
Lik_Sang

Not young. 25 years old dude.

 

[Goku1992A]

@8BitWonder & @HRudyPlayZ

This isn't a who's CFW is better im only saying Nintendo would sue either of them. Technically speaking you are not supposed to use sigpatches with atmosphere because its not included people are not using atmosphere as intended. Atleast with SXOS you know what you get vs Atmosphere some people have to dig a tunnel (sigpatches) to use a CFW that isn't intended to be used. Atmosphere isn't designed to run piracy but its manipulated to run it so it makes thier group liable for legal action. If no piracy could be enabled on their CFW nintendo wouldn't care about them because they aren't a threat. I'm a pirate and I understand the game I have no issues with SXOS all I'm saying don't be surprise if Atmosphere step out the scene like Kosmos when people feel the heat they drop out.

 

[kingaz]

This case seems to be an isolated case, which is old by atleast 5 years old at this point.
The problem was that the defendant's side failed to come with arguments to counter Sony's words, although, Sony's words where countable. The argument was made that unlocking especially allows for piracy, and while this is true, a counter-argument would be that the piracy stays illegal (obviously) and that the legality of pirating games doesn't matter to a lot of pirates anyways...

We need a proper case made for that, with good arguments. Though it won't be this one... And might not be in the near future... As you can see Nintendo only goes after SX because if they attack Atmosphere which doesn't include keys or doesn't even allow the unlocking of piracy by default, they know they're gonna lose and make console hacking legal.

Edit: You can see that this special exception request was declined, but it wasn't declared illegal.

1) This isn't "an isolated case." This is a regulation, and it has the weight of law behind it. It can be challenged, and it undergoes periodic review, but this ruling has been upheld and is in effect to this day.

2) "The special exception request was declined, but it wasn't declared illegal?" What does that even mean? The reason that an exemption was being sought in the first place is because the practice of jailbreaking is presumed to be illegal under the DMCA without one.

Maybe you or someone else could make a more convincing argument to reverse this ruling, and you are welcome to do so when this comes up for review next year. However, my whole point is that jailbreaking video game consoles is illegal under the DMCA, and your argument that it is legal as long as you don't market it for piracy doesn't have a leg to stand on.

 

[Deleted member 388531]

They aren't doing this to get money, they are doing this in the hopes that the legal fees will force the resellers to shut down.

 

[weatMod]

Pirating is bad

 

[8BitWonder]

Atmosphere isn't designed to run piracy but its manipulated to run it so it makes thier group liable for legal action.

That's like saying if I downloaded/ran Nintendo ROMs on Windows; an OS not intended to allow piracy that mind you, I wouldn't even need to make modifications to, then Microsoft can be sued for my actions.
That's completely asinine.

 

[Astoria]

Seems like a lot of people aren't really understanding why Nintendo does this...

It doesn't matter if it's illegal or not, it doesn't matter if they win at the end of not, Nintendo knows the operators of those websites don't have the money or resources to engage in a legal fight that may last years, they will just choose to settle before any trial begins.

 

[HRudyPlayZ]

1) This isn't "an isolated case." This is a regulation, and it has the weight of law behind it. It can be challenged, and it undergoes periodic review, but this ruling has been upheld and is in effect to this day.

2) "The special exception request was declined, but it wasn't declared illegal?" What does that even mean? The reason that an exemption was being sought in the first place is because the practice of jailbreaking is presumed to be illegal under the DMCA without one.

Maybe you or someone else could make a more convincing argument to reverse this ruling, and you are welcome to do so when this comes up for review next year. However, my whole point is that jailbreaking video game consoles is illegal under the DMCA, and your argument that it is legal as long as you don't market it for piracy doesn't have a leg to stand on.

1) It is an isolated case because it's one of the first and only times where there was an official legal response to it, there was only one court analyzing this case.

2) If it's not forbidden in the law, it is automatically accepted. Jailbreaking your console is still in a gray area because there's still no official law to make it illegal. The case you linked to was about adding jailbreaking as an exception, making it legal. Though, the case ended with a decline of the exception, making console hacking still in a gray area.


I have a lot of counter-arguments but i wouldn't take the risk to face Nintendo and their army of 10 billion advocates, i might write a list here at some point if i have the time...
Please also note that the DMCA can only apply in the US, making all external websites unaffected by it.
And yes my argument that the piracy marketing is what will Nintendo use in the case is pretty valid. Even if you consider hacking as infringing on the DMCA, which as of now hasn't been proved... As SX was marketed as a piracy device, Nintendo will win for sure as it is 100% illegal to promote illegal activities such as piracy, though, Atmosphere which doesn't do that and doesn't even include the keys to do so cannot be attacked as as of now, Atmosphere has a lot of counter-arguments to Nintendo and some of which being that it only aims at running homebrews, and that it still wasn't proved as illegal, where SX can't really be saved as they were proved to purposely market it as a piracy-device.

 

[psxfun]

You have a huge lack of intellectual honesty in this post if you are trying to assert that these aren't being used for 90% piracy, if not more. Also saying that Nintendo is doing this simply for the "money" is highly laughable. You do realize the amount they are suing for is a drop in the bucket for them? That their legal fees themselves aren't cheap to pursue this. They are suing these resellers because they can't sue the creators, so they go after supply. They are trying to protect their intellectual properties, something all companies have to do otherwise they will lose that property in a sense.

And yeah yeah yeah I'm all for users having control over their devices they bought, but don't be so upset when a majority of users ruin that by violating copyright infringements with that ability, and it is SXOS's main selling point. There's a reason Atmosphere is safely sitting on Github and this is being sued, and it isn't because "Nintendo evil! Money give".

Finally someone who can talk sense. I never react on this site cause its flooded with no brainers and kids, but thank you for doing so.
This is gonna be an interesting lawsuit indeed.