Again, they can't prove that I myself hacked it, so they cannot DMCA me. Selling a hacked console, well that doesn't go against any DMCA you provided. The DCMA would just be for the bypassing of the encryption.
It's not black and white, and I do not agree with most of what you have said. Unless I create a YouTube video of myself, hacking my console, for the sole purpose of piracy, Nintendo would have no evidence to take me to court to slap a DMCA at my face. So, they do the next best thing.
Hacking doesn't always equate to piracy, sure. But laws are written based on the majority, so they do apply here.
Advertise your A9LH/CFW console to not be able to play pirated games and to be able to run unsigned content. If Nintendo doesn't DMCA, you are correct. Otherwise, no. Also, how exactly would you go about doing that? Hacking a 3DS for unsigned content but not roms? Oh right, you can't. So since there is no way to differentiate, they make a global assumption on the safe side.
It actually is more black and white than you are making it out to seem.
Lastly, DMCA doesn't cover someone hacking for pleasure. Kthx!
Lastly, if anything of what you were saying were to hold up in court, why did George Hotz get successfully sued and unable to hack or comment on hacking anything Sony for the rest of his life?