Note: I am not a lawyer – but hear me out.
Considering the recent squabble between Pointcrow and Nintendo, almost everyone has heard of the “DMCA Takedown.” The DMCA is a huge (and arguably unconstitutional and 70% stupid) law that has a ton of sections, with Section 512 dealing with takedowns.
However, there’s another section in the DMCA many people don’t know: DMCA Section 1201. It deals with what it calls “Technological Protection Measures.” It’s basically a 90s term for what we would now call Digital Rights Management, or DRM, but a little more widely-applied. The Library of Congress summarizes the section:
The Digital Millennium Copyright Act (“DMCA”), codified in part in 17 U.S.C. § 1201, makes it unlawful to circumvent technological measures used to prevent unauthorized access to copyrighted works, including copyrighted books, movies, video games, and computer software. Section 1201, however, also directs the Librarian of Congress, upon the recommendation of the Register of Copyrights following a rulemaking proceeding, to determine whether the prohibition on circumvention is having, or is likely to have an adverse effect on users’ ability to make noninfringing uses of particular classes of copyrighted works. Upon such a determination, the Librarian may adopt limited temporary exemptions waiving the general prohibition against circumvention for such users for the ensuing three-year period.
So, there you have it, in short. Breaking any digital lock / TPM / DRM, without an exception being created during the rule-making every three years, is illegal. Even for fair use cases, like repairing a tractor, or jailbreaking your smartphone. DMCA Section 1201 takes precedence before any “Fair Use” claim. This point cannot be overstated – even if everything you do is otherwise legal and even protected by law as Fair Use, if you cross DMCA Section 1201, it’s illegal.
You might ask – wait a minute, jailbreaking my iPhone is illegal? Well, it actually used to be, but an exception was created for jailbreaking smartphones and tablets. However, guess what doesn’t have an exception yet: video game consoles. Well, they do have one exception – you can break digital locks, only to replace a broken disk drive, as long as you then put the digital lock back afterwards.
So, believe it or not, modding your Nintendo Switch in any capacity, under DMCA Section 1201, is actually illegal in the United States. There is historical precedent for Section 1201 enforcement as well, making it not just a theoretical issue. RealNetworks lost a lawsuit for Section 1201 violations when they made DVD ripping software, and Psystar went bankrupt partially from violating DMCA 1201 for making macOS run on unapproved hardware by bypassing Apple’s lockout. Guess which law Gary Bowser was convicted (among others) of violating, that sent him to prison with a 40 month sentence, for selling Nintendo Switch modchips. He now owes Nintendo about $14.5 million in part for violating this law, and he will have his wages garnished by about 30% until the debt is paid in full (which, almost certainly, will never happen).
This leaves Pointcrow and game modders like him in a quandary, legally, before even getting into copyright issues, or whether Nintendo’s Terms of Use (which say no reverse-engineering) are enforceable. How did he obtain a copy of the game to start modding? There’s only two ways:
- Piracy (Copyright infringement – illegal)
- Jailbreaking his Switch to get a game dump (DMCA Section 1201 – illegal)
So, before even talking about whether he’s violated Nintendo’s copyrights, or violated Nintendo’s Terms of Service that came with the game, he could have committed a crime with up to five years in prison and $500,000 in criminal penalties. This is also why anyone saying, “but he was clearly Fair Use, Nintendo is just using illegal DMCA takedown notices!” doesn’t know what they are talking about – this exact thing is what DMCA takedowns were originally designed for!
You might also be thinking right now, “but wait a minute, what about where it started? With NES and SNES modding?” Well, curiously enough, that’s not a Section 1201 violation because the NES and SNES don’t have encrypted ROMs or qualifying TPMs / DRM. This is also why you can rip a CD with your computer legally (because it has no encryption), but cannot legally rip a DVD in most cases despite the encryption algorithm being breakable with just 7 lines of Perl.
Welcome to the United States, land of “freedom.”
Read the act, not just the news!
First, this is about *selling* mods and modkits, not modding at home. “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, [_primarily_ designed to circumvent copy protection].” 17 U.S.C. § 1201(a)(2).
Second, fair use is fair game. “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” 17 U.S.C. § 1201(c)(1).
Third, you can jailbreak if necessary to run independently created software. “[as long as they don’t sell the mods], a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis [of hidden APIs], or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability…”17 U.S.C. § 1201(f)(2).
With respect to the terms of service stuff, you’re going to pretty quickly run into the first sale doctrine.
Interesting, as I am not a lawyer, the fair use defense is useful there. However, “fair use” is still just a defense, not an authorization, which is determined only after a lawsuit. However, I would ask, if you are downloading a cracking tool of some kind, why would that not violate the “import” part of the act?
> With respect to the terms of service stuff, you’re going to pretty quickly run into the first sale doctrine.
I could be wrong, but as far as I can tell from US Jurisprudence, a EULA overrides first sale doctrine. This is because the EULA almost always states that “This software is licensed, not sold.” This is also why it is actually not legal to rent out software licenses in the US. The hardware is sold and under first-sale and can be sold or rented otherwise.
This also is why a EULA, as far as I can determine, overrides reverse-engineering. You’ve signed a contract saying you will not reverse-engineer the software when you obtained your license to use the (licensed but not sold) software, but there is no contract for just buying a piece of hardware.