Nintendo has just won a court case in the UK, in which certain internet service providers must restrict users from accessing certain webpages related to pirating content for the Switch. The case, which took place in the England and Wales High Court, requires that Sky UK, British Telecommmunications, EE Limited, TalkTalk, and Virgin Media must all impede or block access to a set of specific websites that give information on how to illegally obtain games, or give instructions on how to modify Switch hardware in order to play said games. The four websites are as follows:
- sxflashcart.com (R4)
- xecuteros.com / stargate3ds.org (Stargate)
- Regrettably, third parties discovered that there was a way to circumvent the TPMs by installing custom firmware on the Nintendo Switch. NCL implemented a change to the Nintendo Switch to prevent this in June 2018, but there remains a very substantial number of the earlier, vulnerable Nintendo Switch consoles in circulation and there is evidence of active attempts being made to circumvent the TPMs even on the post-June 2018 Nintendo Switches.
The circumvention devices
- The circumvention devices consist of the SX Pro, which comprises a USB dongle and a jig tool, together with software called SX OS. Having purchased an SX Pro from a reseller, the user downloads SX OS from the first of the Target Websites onto a blank microSD card which the user inserts into his or her Nintendo Switch together with the SX Pro. The user then goes to the second of the Target Websites and, using a licence key stored in the SX Pro, obtains a licence for SX OS, which is then operable on the user's Nintendo Switch.
The Target Websites
- Copies of screenshots of the Target Websites are annexed to the Particulars of Claim. For present purposes, the following features are pertinent.
- The first Target Website, which is located at the URL team-xecuter.com, is shown at pages 12-34 in Annex 2:
i) In a green bar at the top of the home page shown on page 12 are hyperlinks in yellow that link to various other parts of the website and, in the case of that entitled "SX Family Portal", link to the second Target Website discussed below.ii) In the middle of the home page there is a headline "SX OS v2.8 Beta Announcement" below which is a picture of the screen of a Nintendo Switch with SX OS installed on it. The central icon of three icons displayed on the screen is NCL's Joycon logo.iii) On the left-hand side is a box headed "where to purchase" that has the SX logo on the left and proclaims on the right: "If you are looking to buy our SX Family of Team Xecuter products, then please check out our Where To Buy page, listing all of our many valued local and worldwide resellers, as below is just a short recommended list by us."iv) Below this on the left-hand side there are adverts for resellers in various countries such as Canada, and (on page 13) France, Germany, and Spain.v) Turning to page 18, at the bottom of the page just above the video box, in a section headed "SX OS v2.7 Beta Announcement", there is a statement "Of course, behind the scenes we are also still working hard on our solution for those 'unhackable' switches. Good progress is being made, so hang in there!".vi) Page 24 shows the "About Us" page. On the left is a PayPal Instant Delivery advert that offers "USA/EU shipping". The About Us section explains:"Team Xecuter have developed hardware and software for the Xbox Scene since 2001. The initial roots of the group were based on the Xbox homebrew hacking scene, however where we started as a small group of hardcore enthusiasts dealing with extremely gray area market products, we have now grown into a large electrical manufacturer that develops products for many companies around the world.Our heart still lies within the games console community and we are always active in developing new and innovative products that we ourselves use in our gaming lives. Whereas we have long digressed from trading in areas that have now been made illegal in most countries over the years, our ambition is to continue to product quality items at an affordable price."vii) Page 27 show the "Where to Buy" page. This explains, in the middle of the page, that "On this page you will find a updated list of all our authorized resellers around the world that have available our latest Xecuter SX Family Products". Below that is listed a reseller that is said to offer "Shipping worldwide".viii) Starting at page 29 is a "List of Resellers operating within Europe (choose the one best for your area for shipping rates)."ix) On page 30, beside an Irish flag, are listings for "Stores Based in Ireland" that includes, as the first listed, the fourth Target Website (Stargate).x) On page 32, beside a Union flag, is a list of "Stores based in the United Kingdom". The second link down is to the third Target Website (R4).
- The second Target Website, located at the URL sx.xecuter.com, is shown at pages 35 to 41 of Annex 2. This Target Website is accessed by clicking on the hyperlink on the first Target Website entitled "SX Family Portal". It is at the second Target Website that a user obtains a license for the SX OS. The link to do this is at the top right of page 35 labelled "Activate SX OS". It is also possible to download updated versions of the SX OS, as can be seen from page 36. NCL contends, and I accept, that it can be seen that, in this and other ways, the two Team Xecutor Websites operate in conjunction with each other. In addition:
i) On page 35 there is statement "Introducing SX by Team Xecuter The ultimate solution for jailbreaking your Nintendo Switch has arrived".ii) Turning to page 37, in the middle of the page there is a heading SX OS, below which it is explained that "SX OS is our revolutionary Custom Firmware for Nintendo Switch". In the images below this is shown, as the top picture, the screen of a Nintendo Switch onto which SX OS has been installed, with, in the central picture, the Joycon logo displayed. Around the images are various pieces of information about SX OS. At top left it is explained that it works "with every Nintendo Switch console released before June 2018". On the left at the bottom of the page it is explained that you can "Play All Games!"iii) On page 38, under heading "Homebrew Games & Apps" it is stated that "Using SX OS homebrew menu launcher you can enjoy all the quality games and software by independent developers".iv) On pages 40-41 are instructions for the use of SX Pro and SX OS. Installing the SX OS promises, as stage 5, that the user can "Enjoy the latest games and homebrew!".
- The third Target Website (R4), currently located at the URL sxflashcart.com, is shown at Annex 3:
i) At page 43, in the top right, below the box marked "Cart", there is a hyperlink labelled "HACK AMIIBO/SWITCH". In the second row of "new arrivals" on the left there is advertised the "Switch Xecuter SX OS" and "Switch Xecuter SX Pro and OS".ii) On page 44 in the top left there are two more adverts for the circumvention devices. The second of these shows a Nintendo Switch on which can be seen the screen with SX OS loaded and, in the centre, the Joycon logo. The prices are all in sterling.iii) On page 45, middle right, is a section entitled "Hack your Switch 3DS New 2DS by a flashcart." Below the title it states "Flashcard is the best choice to play free games in UK Ireland". The fourth line states "To hack Nintendo Switch, just buy the Xecuter SX Pro and OS". In the bottom right, under "Store Information" it states "SX Flashcart UK".iv) On page 46 is the page reached by clicking the hyperlink "HACK AMIIBO/SWITCH" referred to in the opening sub-paragraph above. In the title box it states "…We support all kinds of Nintendo Switch accessories to play Nintendo Switch games." Below that are further adverts for the circumvention devices including the image of the Nintendo Switch with the custom firmware installed on which the Joycon logo appears.v) On page 47 are various adverts for the circumvention devices. Among them, on the left-hand column and accompanied by an image of the Nintendo Switch, is an offer for "Switch Xecuter SX Pro and OS" with the words "The Nintendo Switch has been hacked already by Xecuter SX Pro and OS" appearing beneath.vi) On page 50 is the page reached by clicking the hyperlink for one of the adverts for "Switch Xecuter SX Pro and OS". The blurb beneath the title states "The Nintendo Switch has been hacked… with this Switch flashcart Xecuter SX the players can enjoy free custom firmware without limits… It can support all the regions…." Similar information is given under the heading "More Info" at the bottom of the page.vii) On page 51 further information about the product is provided. The second bullet point under "Why buy Switch Xecuter SX?" explains "An original Switch cartridge is too expensive, we can save our money to enjoy free games." At the bottom of the page are customer reviews, two of which are from "Ryan P": the top one states "…I ordered from the UK and item was here in 6 days with free shipping method…." The second one states "… I used free postage option to the UK, it took about 8 days to arrive…"viii) On page 52 the second review from the bottom from "Ash B" states "arrived in the UK 05/06/2018".
- The fourth Target Website (Stargate), currently located at the URL xecuteros.com but previously located at stargate3ds.org, is shown at Annex 4:
i) At page 60 is the home page. The website is entitled "Stargate3DS" and next to the title is a ".UK" logo. In the middle of the page there are three purchase options for the circumvention devices, all priced in sterling. The image of the left-hand option shows the Nintendo Switch with SX OS installed and displaying a screen that has on it the Joycon logo.ii) On page 61 in the right-hand column are brief explanations of the Switch Xecuter SX OS "…software to hack Nintendo Switch console…" and the Switch Team Xecuter SX Pro and OS modchip which "hacks Nintendo Switch".iii) On page 63 at the bottom right is "Store Information", which gives an address in "Staybridge UK".iv) At page 65 is the page one reaches by clicking on the option to buy the Switch Xecuter SX OS. The description of the product states "The Switch Xecuter SX OS is a software to hack Nintendo Switch console. It's easy and cheap to pirate a Switch. With Switch Xecuter SX OS, the players can play all kinds of Switch games freely."v) On page 66 the "characteristics" of the product are said to include "Compatible with games outside the regions". Below that is a section headed "Why buy Xecuter SX OS in stargate3ds.org?" The third bullet point promises "All orders in stargate3ds.org are sent free with the tracking number and arrived quickly in UK!"vi) At page 68 is shown the page one reaches by clicking on the option to buy the Switch Team Xecuter SX Pro and OS modchip. The description includes information similar to that shown on page 65 but also states in the final sentence "To pre order a Switch SX flashcart to begin your hack journey in UK and Ireland". At the bottom of the page under "More Info" it explains "The main function of Switch Xecuter SX flashcart is to install CFW [Custom FirmWare] on your Nintendo Switch consoles. After the custom firmware setup on the console you can start to play downloaded free Nintendo Switch games so that we don't need to buy expensive retail cartridge from amazon or ebay."
Additionally, the UKIE, the Associating of UK Interactive Entertainment, agreed with the ruling and had this to say on the matter:
These circumvention devices, which enable the use of unauthorised copies of video games, jeopardise the businesses of those who uphold and rely upon the sales of legitimate products. As such UKIE fully supports the ruling and wishes to reiterate the strong stance of the UK video games industry against illegitimate operators. The case represents one of multiple industry endeavours to prevent bad actors from infringing upon and exploiting the intellectual property rights associated with games.