What is the legality of homebrew and Console Hacking

[Stephano]

This has been on my mind for a while. What exactly is the legality of hombrew and hard/soft console modification? Can anyone tell me about it or better yet, any articles ect. about it?

Whether it be broad or specific, I'm very interested in knowing everything.

 

[FAST6191]

That depends entirely upon where you are in the world.

For the US though, ignoring state level and circuit court level and merging it all together.

Basic principle is "your device, your rules, your choice of actions", and is the basis for most sites like this*. That however gets modified by many things.

The original ruling that most went off (for a lot of electronics actually) was sega vs accolade ( http://digital-law-online.info/cases/24PQ2D1561.htm ), where accolade worked around Sega's protections and the courts said that is cool. Another with galoob vs Nintendo ( http://www.museumofintellectualproperty.org/features/game_genie.html ) are also worth considering as it covers some things for the game genie and thus game modification (short version is the parent company for game genie asked the court to say yay or nay, a so called declaratory judgement, and they said yay). In these discussions Atari Games Corp. v. Nintendo of America Inc. ( http://digital-law-online.info/cases/24PQ2D1015.htm ) comes up but that is more that Atari obtained the means by some kind of deception or falsehood rather than simply working around it like Accolade.

This was pre DMCA though, most people that look at it consider the DMCA a horrid piece of law but it is a piece of law and thus gets to be discussed. One of the bigger provisions of the DMCA was that bypassing protections, even if they are weak as you like, is not cool. This would then appear to stop a lot of things that might be acceptable under other circumstances, including under the case law mentioned above.

However there are exemptions to the DMCA. More recently there were a bunch added and some of those change things we see and deal with around here
https://library.osu.edu/blogs/copyright/2015/12/30/new-dmca-exemptions/
Some of those however would appear to not cover game consoles as they are presently known, and have typically been known in the US since Nintendo appeared with the NES (there was no crash in Europe, the C64 was doing fine and the amiga was also very much present in all this), by virtue of them being somewhat limited purpose devices.
Some more https://www.eff.org/issues/dmca-rulemaking

The console makers however would have you think you are the scum of the earth for considering such a thing. This matters little but knowing how your opponent thinks is not necessarily a bad thing. Most find Nintendo's wonderful document on the matter to be good reading
https://www.nintendo.com/corp/legal.jsp . Said position has however been seen to have a bit of a stifling effect on emulation of older NES titles in some instances, http://www.gdcvault.com/play/1023470/-It-s-Just-Emulation covers some of it in passing.
End User agreements actually mean something in the US (many other places tear them up if they are presented after the point of sale) but not an awful lot as far as this discussion goes, unless you want to consider warranties (gets complex if a ruling like "did the mods cause failure? No, fix it anyway then" comes into play wherever you are at).
Flash carts and mod chips seem to get struck down fairly often within the US, though customs, border protection and the like really don't seem to care -- never heard of an individual getting stung going through customs/immigration (I have personally travelled several times to the US with such things and not heard word one, even got singled out for an extra special talk once**) and it is rare enough that should a shipment of a crate of the things get stopped in customs it tends to make the news around here. Ignoring basic customs stuff then the only times we really ever see them get tooled up and kick down doors is when the would be mod shop is also copying games to the devices at the same time, see also people downloading as much as they like but it is the uploading they care about. That it seems to have to happen for every console coming out says much to me as it has been years since the PS1 and longer since the SNES which also had commercially available copier devices says much to me.

*some will do different things with different things, for instance here we don't tend to see console/device keys shared, save for unique per console things (you want to get banned then that is your problem sort of thing). Other places have no such qualms, even places with far stricter "no piracy discussions" rules. There does not seem to be a good basis for this, though lot of it happened around the time the HD DVD keys were leaked, so for the most part I tend to call it "don't poke the bear", or when being chased by a bear you only have to run faster than your friends. As it does not tend to add much to the discussion and keys are easy to find then nobody seems to mind so much.

**I will note though that it never even occurs to me to think they are in any way wrong. Some members, typically somewhat younger, actually believe they have some kind of illicit device for whatever reason and that might change something somewhere.

Homebrew vs region locking vs copied commercial games can complicate all this further. For the latter there is a reason "backups" is often used as a term as it one of the basis upon which such things are allowed (part 4 of https://w2.eff.org/IP/eff_fair_use_faq.php for a start), region locking has not been smacked down despite apparently flying in the face of international trade law (a purposeful restriction on global trade) but is generally seen as a legit thing (you might want to look into the no backups PS1 chips that did region locking and homebrew), and homebrew has been covered a bit already but as it usually gets put in the exemptions above, and counts as a good entry for "substantial non infringing uses" (a choice legal phrase in matters like this) when discussing all sorts of things (emulation being a good one) then yeah.
ROM hacking would be another facet in all this but there is precious little legal paper out there on this -- prior to the final fantasy type 0 thing (not sure what basis but more likely competition as they were releasing the same game before too long, not to mention released in a very poor fashion), and pokemon prism (pretty clearly trademark related if you read the docs https://drive.google.com/file/d/0B0f-_m_8on7BLVhuYnV2a2tuR3M/view ), the only actionable stuff we really had to look at was the 2005 case of tecmo vs various dead or alive volleyball hackers ( https://www.theregister.co.uk/2005/02/10/tecmo_sues_xbox_game_hackers/) which was dropped in short order ( http://www.theregister.co.uk/2005/05/27/tecmo_drops_ninjahacker_suit/ ). There were a few other notices over the years (Chrono Trigger being one of the more notable) but nothing really worth considering -- getting a lawyer to so much as have a chat with you tends to cost about as much as food for the week, if you are lucky, so most just capitulate.
Let's play legal guidelines for various places also issued some things that might pertain to hacking, though again most of it appears to be trademark (apparently endorsed footage of hacked games potentially causing all sorts of troubles and confusion among consumers). Microsoft's being the most overt ( http://www.xbox.com/en-gb/developers/rules ), though Nintendo's were not too far behind ( https://r.ncp.nintendo.net/guide/ ).

You did not mention emulation but I brought it up in passing earlier, here the main case of any merit is the Sony vs Bleem https://www.law.cornell.edu/copyright/cases/Sony_v_Bleem.htm which most had Bleem on track to win, only to succumb to that old problem of money (if getting a lawyer to speak to you is expensive then getting one to go speak in court is even more so, so much so that "drag a legal case on for long enough until your opponent is bankrupt" is a well documented, and highly effective, legal strategy).

 

[Stephano]

@FAST6191 sorry for the late response, I had a lot of reading to do. That aside, thanks so much for this information. The articles you gave me were honesty really fun to read and very informative. I haven't read the one on nintendos page yet. I'm saving that for later. XD
But seriously, thanks a lot for all of that. I honestly wasn't expecting so much information.

 

[FAST6191]

I did add a few more links just now to clarify some points, nothing major but probably should say.

Yeah Nintendo's stuff is pretty amusing, perhaps not quite as nice as their infamous "grey market" statements quite a while back (SNES or N64 era I think) concerning the import of games but still worth it if you need a giggle.

Forgot to also mention that if you like this sort of thing you might like
https://www.youtube.com/user/ljfrench009/videos
Guy is an actual copyright lawyer, not always doing games stuff but usually covering the sorts of things most people following along here might actually care for. Even if not it is probably something you will see in an area you might care for one day (the "Marijuanaville" Trademark stuff that is the latest as of posting this is not particularly relevant here but I can absolutely see that happening in games tomorrow, let alone in 5 years).

A nice talk on some of the fundamentals of the US system, as it would be understood by hackers (hence the title of the talk)


and why not make it an even three links

The speaker there does all sorts of talks, good stuff from all those I have seen from him.

 

[Stephano]

@FAST6191 Thanks for the update, ill check them out right away. How did you become so knowledgeable about this stuff. I tried doing my own research on some of this stuff and i couldn't find much.

 

[FAST6191]

I am somewhat trained in intellectual property law matters for job purposes, though that is almost all UK and EU based nuts and bolts style engineering. Easy enough to follow along with US stuff though if you have that though. Much of it is because I am an old man and was there as it happened. Equally a lot of the world watches the US legal system with various amounts of open mouthed horror* and popcorn, with a knowledge that they will then try to take the results on tour.

*the US has software patents and what passes for prior art in patents over there is a farce. Other than Japan most of the rest of the world considers software patents an abomination and contrary to some of the fundamental principles of patents, that being you can not patent maths and code is maths.

Sega vs accolade really was a big deal in electronics and software -- I don't know if you are familiar the idea of case law and precedent (short version is after all the bill is passed stuff you saw in a cartoon in school it enters the world, for a lot of things though it is only when a judge, and then maybe an appeals court, figures out how it should apply that it becomes a law people know how to play to and it can be cited in further cases, give or take jurisdictional issues. Not all countries do this, France being the usual exception people start with, but in the US it is a very big deal, and this ruling was a big deal even among those.). The other two are more curios that I learned about along the way. I think Nintendo rattled a sabre some time in the early GBA days/late GBC days so the extent of its applicability there was often discussed. Or if you prefer there is a reason some GBA homebrew you will need to add a header for yourself as some sought to play it extremely safe.

I like ripping DVDs so I got to be fairly familiar with the DMCA when it was used to take out tools I liked using, not to mention it kind of eclipses most previous bits of law so you can use it as a jumping off point. The updates to it are mainly as I keep an eye on it as it gets progressively defanged as the years roll on.

The differences in hacks stuff stems from music and film backup and format shifting. Also it was a passing remark but a lot of discussion was had during the PS1 days about the mod chips that appeared which did not do copied CDs but did do region unlocking and homebrew (probably still known as PD roms, PD = public domain, at this point).

Sony vs Bleem I saw unfold at the time it was all going on. By this point I had been doing emulators for several years so it caught my interest. Sony were also ones to go after various people at times (Sony and Bung, Sony and Lik Sang and though it is for the UK then Sony and electricbirdland concerning the simple import of psps that had not yet been released in the region).

The ROM hacking stuff has the legality as a constant... I can't say worry as nobody really stays up at night or dreads the day a letter from a law firm drops through their postbox -- you do your hack and release the end result as a patch rather than a modified ROM image. The knowledge that you are creating what is effectively known as derived work though informs a bit of how it all plays out, and how some communities work (romhacking.net is one of the major hubs and won't do current consoles and very much frowns upon providing direct competition to commercially viable products). I would then be one of those that keeps their ear to the ground for anything sort of applicable to it. It is not the main reason I read the let's play stuff, that was mainly because the debates over it all got fairly heated and thus it made sense when something official arose, but being one of the few general pieces of legal paper to even mention it means it stuck in my head.