I believe it is a huge part in evaluating prosecutorial discretion. However if a prosecutor does decide to prosecute you, the reasons don't matter. Also, it is both a criminal and civil case. Nintendo could sue at any time for over it, for any reason. Does anyoen think nintendo cares about intent when the software is used downstream to pirate their system? NOPE.
The issue here isn't one of black letter law. The vast majority of reverse engineering operates in a gray area where prosecution could occur, but will not for <long list of reasons>. Console reverse engineering does so too, but it's not any more shady than what we see with iOS, where companies with million dollar valuations are buying stolen Apple prototypes from China as the level of access said prototypes provide is essential to the job these companies do. Zero prosecutions. Zero have occurred, zero will occur.
Nintendo isn't going to be the one to risk getting a chunk of DMCA slapped down by an appeals court. Companies do not push their luck on this specific issue for a very good reason. There are better ways to deal with the piracy than to make every security researcher (and associated organizations) your blood enemy.
TX is not Atmosphere. TX sells warez for money. TX makes products intended to enable piracy. That's everything.
Last edited by blahblah,