Homebrew Seperating the Legal and Illegal stuff of homebrewing a 3DS?

Gaming Legend

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Hey everyone! I accidently placed this question in the Switch Forums. I apologize if this is duplicating posts.

If I were to homebrew my 3DS without pirating games, is that legal or no? I was thinking of homebrewing an old 3DS for custom themes and being able to play Japanese games with fan translations like the Digimon World De Digitalize. I don't have a interest in pirating games.

I know this forum probably gets a lot of questions about homebrewing being legal or not so I apologize in advance!
 

BigOnYa

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Depends on what country/state you live in, but I think as long as you don't pirate games, or steal they're code, most homebrew is not harassed by the Big-Wigs. I'd still look up your local laws first, if you wanna be for sure safe about it.
 

Kanakops

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If you just want the quick answer : Everything is legal but at the moment you are pirating a game, it is not legal.
If you dump a game and share it online it is also not legal.

But after if you want my opinion it's more a moral question, I don't think you will risk anything in real life if you pirate a 3ds game but of course I don't encourage you.
 

Kanakops

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nintendo is banning 3ds only if you cheat online or if you try to connect to a multiplayer game you are not supposed to have (for exemple taiko no tatsujin, a japanese game with your american console) or if you play an early leaked game.

You will have 0 problem with anyone if you use custom theme
They will not even ban you and it is legal
 

Gaming Legend

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Thank you everyone! There were many questions about this topic on Reddit and Quora. Many people say that homebrewing isn’t illegal but pirating is. There were articles talking about homebrewing was illegal in general but they mentioned the use of piracy and profit. It's a tricky thing to distinguish which gets me nervous. The last thing I need is to wake up to people banging on my door but thats a far fetched thing that could happen.
 

FAST6191

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While I am sure Nintendo, Sony, EA et al would just as soon fit you for a long drop and a short stop for even considering it we do live in a world where "your device, your rules" is largely still intact. In the US two cases, both amusingly enough from games, tending to go here (Sega vs Accolade and Galoob vs Nintendo, aka the game genie case), however there is also the DMCA which came later that tries to make bypassing protections illegal outside an increasingly long list of circumstances (most of which do everything they can to not have game consoles fall into that https://itlaw.wikia.org/wiki/DMCA_Exemptions_to_the_Prohibition_on_Circumvention ). Some other places will also attempt to ban the sale or importation of flash carts and mod chips, the US tending to go the other way and you will hear phrases like "substantial non infringing uses" (such a thing being one of the main things keeping emulation absolutely fine and legal) but that is not so clear cut in all this.

To that end they have to show some form of damages from your actions, which is mostly a civil matter (if you are being sued by someone not the government then probably a civil matter). That means they have to catch you, and care enough to mount a case (win 1 million in court against me and even if you took my entire wages for life and net worth you will not get that).
If you used or distributed copyrighted works without permission then that might count. If you mess with their online services (the freeshop thing seems to be blocked now but that might fall under theft of utilities or something similar as you are using their bandwidth) then that could also count -- using cheats in online games tends not to see people pinged in the US but I can see a path.

If they detect you then they can ban you from their services -- their services, their rules and not much you can do there -- more fool you for buying a device locked into a vendor's network rather than allowing you to run your own servers.


Owning a copy of the relevant work at the time of the use generally means you are not being a pirate. This does however mean plain old homebrew if said homebrew is an emulator or media player playing pirated games/songs/videos/books/... can come into that one.
If you want to get lost in the weeds then it is possible -- some would argue using Nintendo's emulators to play a game you own in cart form without owning a copy of the base emulator would count, and that means many doing injection could fall under it. Some also ponder what different versions mean (having a Japanese copy likely does not entitle you to playing the NA version, however whether you would be allowed a simple bugfix 1.1, though the 3ds has title updates so moot point most likely).
The nature of translations and ROM hacks can also vary (there have been cases for people running subtitle websites, and fan translations would fall under something called derived works even if that is likely to apply more to the hackers that made it) but I have never seen anything there I would deem relevant in this -- some hackers get asked to take translations down when said game is being released for real and one case was a really awfully made patch that contained a good chunk of the game that was not needing to be patched, and for an actual case there was one years ago with some people making hacks was dropped in short order which is about all I have
https://www.theregister.com/2005/02/10/tecmo_sues_xbox_game_hackers/
https://www.theregister.com/2005/05/27/tecmo_drops_ninjahacker_suit/
Fan games might also count in this -- depending upon what goes when the takedown notice comes a lot of them will say "assign us any copyrights to your game" as part of the deal.

Anyway look at me pondering things like it is cool (even law students would deem this a boring and pointless nerd exercise).

Short version. Don't lose any sleep over anything here. As long as you are not dumping games to share online, running a ROM website within a place they control, downloading ROMs from somewhere they can see, selling discs filled with ROMs (what most flash cart sellers/mod chip installers/modifiers tend to get charged with, even if the final press piece does all it can to downplay that) or breaking their online services then of the possibly millions that might have visited this site and our interest in it all if it goes down outside then nobody gets anything other than a naughty boy letter if they are found downloading a torrent of a game without a suitable VPN. If indeed you are installing themes and whatever passes for 3ds homebrew (compared to the xbox, GBA, DS, PSP and Wii then the 3ds is as nothing when it comes to cool and interesting homebrew, though I suppose you could be doing GBA and DS homebrew on it) then Nintendo is even less likely to go after you in case you win the case and thus it becomes clear cut that it is legal rather than the "scares some people and that is good enough" thing that Nintendo and their mates try to cultivate.
"If you hack you lose online" is the generally accepted mindset in all this, any online you do get being but a nice perk and you might have to work for it (hiding from detection methods often blocks things that would be hackers and homebrew types would like to have). That said 3ds bans are unlikely to happen again (it is a dead console after all, would not serve much purpose) and is 3ds online options actually something you truly care about?
 

ClancyDaEnlightened

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Short answer no, unless you're publically distributing copyrighted code, this includes ROMs, system software/firmware, anything that was developed using the offical sdk, is technically illegal, using software developed using open source sdks is fine, as long as they dont contribute to piracy or leaking keys


In the end if your activities either take money from Nintendo, or if your derivative works gets too popular (for example video game rule34 art),expect to receive a c&d and calls from Nintendo's lawyer's
 

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