So modding video game consoles is actually illegal?

[WG481]

So modding video game consoles is actually illegal?


For about 5 years, I was under the mindset the modding video game console that you own to play backups that you own and to play homebrew made by others was completely legal. I go to several threads of people asking if this is legal or if that is illegal and on every thread I get the same three responses...

1. we don’t talk about piracy
2. Modding your console is legal
3. It only breaks Terms of Service

For the longest time I accepted these notions without thought. A long while ago, I asked about the legality of homebrew and was pointed to several very interesting legal documents that if I recall correctly, pointed in favor of homebrew. But what good is making homebrew legal if the act of Modding and jailbreaking a console is illegal?


For hours, I tried looking for counter arguments to this whole notion of modding specifically gaming consoles is illegal and only found a few things that potentially contradict, particularly the comments in this thread I found very interesting: https://gbatemp.net/threads/is-modding-the-3ds-illegal.387054/


But this thread was an exception. The more and more I dug through this website, the more and more I saw these generic responses of its legal and only break terms of service. I want to believe this but I need to admit when I am wrong. I’m a very broken person.


The DMCA, from what I have read, clearly states that it is illegal to circumvent protective measures in a system. There are exceptions to this like HVAC systems and cell phones, but none exist for Video Game Consoles. This is due to the idea that modding a video game console would only be used for piracy. While I don’t think any of us deny that there are people who mod consoles to pirate games, that is certainly not the only use. Some examples that come to mind are Project M, Gamecube Controllers for Mario Kart 8, Region Free 3DS, Gamecube Memory Card Backups, other generic game mods.


These are all things that I have done because I have modded my consoles with none of the things I’ve mentioned having anything to do with piracy.


So why do I say all this? It’s because I need questions answered and some generic answer with no source. I understand I am in the US, but I want to know everything even outside the US.

1. Emulators

Emulators have been proven to be legal as shown in the court cases between BLEEM/VGS VS Sony. I get that and the cases make sense to me. My confusion comes from this statement. “So I can play an emulator on my computer, but I can’t on a modded system.” I think most people would agree that emulation can be associated heavily with Piracy. I know many of us don’t have access to equipment capable of ripping roms/ISOs of games. I own a copy of Fire Emblem 7 for the GBA but I have no way of playing rom hacks of it without finding one online. But Emulators still remain legal. So this is my issue, why is it legal on a computer, but heaven forbid I do it on a console because I am not aloud to mod a console.


2.) Terms of Service

That’s what they always say, it violates TOS. According to the DMCA, it’s more than just that. It’s illegal. I know no none ever reads those things but if there was a clause stating, “you’re f***ed if you mod our sh*t,” then I believe it would have been pointed out and people would be more frightened by the act of modding consoles. I boldest community I know is the Linux community with their never ending quest to get Linux on everything from a potato to the Xbox 720. So I guess my question is, is there some TOS out there that says something about legal action? And if there is, why is no one frightened


3.) These communities

Wololo, Reddit, GBATemp, Se7en Sins, etc. all of these websites contain people and software that allow users to modify their consoles. And this right here, is the reason why I am so confused. There are hundereds if not almost a thousand threads on how to mod this or how to mod that. If the DMCA clearly says that we can not mod the things we paid for, the why is the website still up? Why is it aloud to host content that mods consoles? Why are people like SchiresM and various other developers not incarcerated because of their hobby? I know SchiresM did not want his exploit to be used for piracy which is great and all, but it still violates US law. Yes I know many of these people are not from the US and may live in places where it’s okay but that still doesn’t answer the question of why can I still access this site? If GBATemp truly hosts illegal material and is run by people who’s names are publicly known, why hasn’t steps been taken by companies to get it shut down? Why hasn’t Nintendo yeeted this website off the internet or at least from the eyes of US citizens if it truly is a violation of US DMCA laws? Nothing is adding up.




I don’t want to sound like I am against modding consoles because I’m not. It’s one of my favorite things to do, but I need a definitive answer to the questions I have asked.


My moral compass points towards freedom although I am told to abide by the laws of the land. Give to Ceaser what is Ceasers, But this is a law that to me seems unjust and against other laws such as fair use, right of first sale, and other things.


Please, I need answers. No cookie cutter response of “it’s legal.”

I want someone to show me its legal. I want it to be legal.

I don’t care about my reputation in this site anymore.

I've thought long and hard about a loophole in this.
The terms of service is in effect once you agree with it, however, most preinstalled OS'es (3DS, Wii U, whatever the shet you want to mod) force you to sign Terms and Conditions before access to things like SD are given. If someone manages to rip open a hole in the ToS or TaC, thus, you are not breaking any laws by modding the shet out of it.


I might petition the DMCA or some mo'fricking piece of the Gov't to allow stuff for consoles because, let's be fair, we bought the systems. I never saw on my receipt the words "this console can be repossessed by Nintendo. Unlicensed modification is not allowed." To heck with that. Aren't there some consumer rights that I have with the product? I own every minute piece of hardware within that system.

If I modify it without agreeing to terms, I have plausible deniability that I never saw them. In fact, I never agreed to them or declined them. You can't sue me.

Modifying things you own should be a consumer right. The European Union has cut down on certain freedoms (like bundling Edge with Windows), and America should do the same. Let me edit my BIOS, let me flash my NAND, let me do what I want with the shet I own because you are a bunch of conglomerate jerks when it comes to this stuff. Last I remember, you make these updates for security. 99% of the time, it's for your OS'es security, not ours or our data's.

Sorry for that rant there folks, but can we agree we're feeling that way?

 

[AkikoKumagara]

I've thought long and hard about a loophole in this.
The terms of service is in effect once you agree with it, however, most preinstalled OS'es (3DS, Wii U, whatever the shet you want to mod) force you to sign Terms and Conditions before access to things like SD are given. If someone manages to rip open a hole in the ToS or TaC, thus, you are not breaking any laws by modding the shet out of it.


I might petition the DMCA or some mo'fricking piece of the Gov't to allow stuff for consoles because, let's be fair, we bought the systems. I never saw on my receipt the words "this console can be repossessed by Nintendo. Unlicensed modification is not allowed." To heck with that. Aren't there some consumer rights that I have with the product? I own every minute piece of hardware within that system.

If I modify it without agreeing to terms, I have plausible deniability that I never saw them. In fact, I never agreed to them or declined them. You can't sue me.

Modifying things you own should be a consumer right. The European Union has cut down on certain freedoms (like bundling Edge with Windows), and America should do the same. Let me edit my BIOS, let me flash my NAND, let me do what I want with the shet I own because you are a bunch of conglomerate jerks when it comes to this stuff. Last I remember, you make these updates for security. 99% of the time, it's for your OS'es security, not ours or our data's.

Sorry for that rant there folks, but can we agree we're feeling that way?

Biden signed an executive order on Right to Repair recently that may help this cause at least a little bit. I know it's not exactly the same thing, but having the right to open up and repair your devices is vital to modification thereof. Plus, like I have said previously, most of those things in the EULAs aren't really legally binding.

 

[KleinesSinchen]

Imagine believing this, lmao. America is far from being free but even farther from being Communist.

The way these terms of use agreements and EULAs work are thus: by simply using the product, your agreement is implied, however these agreements are rarely ever legally binding. You actually will see a EULA screen when you set up most consoles for first time use which require agreement to proceed. They can be used in court but might just be ignored if brought up depending on the infraction. Modding your console is not illegal here in the US, anyway, assuming you're not distributing something copyrighted or breaking piracy laws or something.
In someplace like Japan (a more conservative nation, to counter your 'Communism' point), console modding is illegal, as well as many forms of software modification.

This is surprising to me. I assumed that such implicit contracts would work in the USA, but I completely lack the knowledge there. For expressing the things in the following text, I got a lot of backlash a few years ago. Some people really bring forward crude arguments for explaining why virtually anything big companies do is a) legal b) justified and c) "JUST PROTECTING THEIR IP!!11". And everyone who disagrees, with or without good arguments, is an idiot and just whines because they want to pirate.
==========================





It would be helpful if we got an overview how different countries see this.
Disclaimer: I'm not a lawyer, but I have read quite a bit about such topics, partially written by lawyers, so I will present what I think is truth in Germany – again, I'm not a lawyer:

I'm pretty sure the method "By opening the box, you agree to the terms inside the box." will generally not work here (this includes "You could have read it on the internet before." ). Still there are a lot of people convinced a click on accept is legally binding in any case no matter what is written in the EULA and an accepting click will heal all possible violations of laws. Especially salespersons in retail shops are good defending at this kind of circular reasoning. Not only consoles show an EULA before usage. What salespersons often forget or ignore is the fact that buying a product is considered a purchase contract with the seller, not the manufacturer. There is no contract between manufacturer and customer. Implied warranty is something the seller has to give according to terms the law defines. Manufacturer warranty (with warranty terms by the manufacturer) is completely optional, can be added but does not replace the seller's responsibilities.
Staff in retail shops audibly grind their teeth when you answer this when they tried: "Contact the manufacturer hotline and send it in!" on warranty claims.

(Continued) usage of a device I already paid for does not imply compliance with some "Terms of use". Same goes for licensed, commercial software. Surprising clauses are regularly scraped in court and some contract I get to see after purchasing is null and void.



Back to console modding:
The manufacturer can forbid whatever they want, it is the law the end user has to be concerned of. EULA after purchase? As already mentioned null and void. Executing my own unsigned code is perfectly legal, as well as modifying game saves, no doubt about this. I hope the Japanese laws don't spread across the world. This is horrible!
Now the big question: Copyright laws? Is copyright a possibility to outlaw console modification because it might enable piracy?
"Backups of software may be created if this is necessary to ensure future usability. The right to make such backup copies may not be contractually forbidden. The regulations in [anti-circumvention laws §§] do not apply on software."
Is a backup of a game needed to ensure future usability?
Disc rot. Disc drives failing. Children breaking discs. Modern TV not supporting analogue input requiring possibly expensive add-ons for lag-free digital conversion. Loss/theft of a game I have a license for. 3DS game carts failing recently. I think we got this covered.

I must say I would not dare to offer paid modding services, either hard- or softmod, because somebody might argue such a service was enabling piracy and therefore financially profiting from piracy (and I don't want a ton of allegations because a user tried hex-editing SysNAND with GodMode9)

If manufacturers are able to detect modification, they may ban users from online services (big surprise here: They clearly have the right to make the rules on their own computers/servers. And they insist on this right they want users not to have very much…).
Bricking modified consoles with a forced update on a retail game might be a criminal act (computer sabotage) in addition for the user/victim having the possibility to claim for damages. The hard part is proving it was intentional bricking and not: "We are terribly sorry, but your modification turned out to be incompatible with the update. We don't test third-party modifications in house. Thank you for your understanding." I would consider the Wii 003 brick to be computer sabotage as it directly states to be an intentional brick. Especially problematic since the owner of a region changed Korean Wii might not even be aware of a region change by a previous owner.

 

[WG481]

Biden signed an executive order on Right to Repair recently that may help this cause at least a little bit. I know it's not exactly the same thing, but having the right to open up and repair your devices is vital to modification thereof. Plus, like I have said previously, most of those things in the EULAs aren't really legally binding.

Another loophole is if you're a minor. Since minors can't exactly make a contract, they become voided or honored depending on their decision. Just blindly agree and mess the frick around with it.

Note: I am not a lawyer you should not take legal advice from me.

 

[slaphappygamer]

If only someone has a lawyer friend.

 

[Julie_Pilgrim]

If only someone has a lawyer friend.

and if only that lawyer had a spot on our official podcast

 

[slaphappygamer]

and if only that lawyer had a spot on our official podcast

YOU KNOW OF A LAWYER!!?!??