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Comment by eznzt | Hacker News Reader

Isn't all of that correct and legal under the DMCA?

As of the date of this document (2013), no. This is technically not legal. The Library of Congress exempted phones from the DCMA but not video game consoles.

I don't believe the ruling has changed since 2015.

> The Register also confirmed that the exemption for gamers should not extend to jailbreaking of console software because such jailbreaking is strongly associated with video game piracy.

https://copyright.gov/1201/2015/fedreg-publicinspectionFR.pd...

Practically, there's nothing stopping companies from intimidating people through surveillance or the threat of lawsuits. It's the chilling effect in action.

Reading the legal documents, it seems like their main case is that the end user isn't legally allowed access to their device, and homebrew is equivalent to gaining access to a device you're not supposed to have access to?

> 10. Article 550bis of the Criminal Code punishes any (attempt) of external hacking, i.e. any attempt to gain access to a computer systems or to maintain such access, by someone who knows he/she is not authorized to gain such access.

> The preparatory documents to the Act of 28 November 2000, introducing Article 550bis into the Criminal Code, as well as the other provisions on computer criminality, define “computer system” as: “any system which allows the user to store, process or transmit data. This includes, in particular computers, chips, smart cards, networks and their components as well as telecommunications systems and their components which use information technology.” The 3DS is a “computer system” in the sense of Article 550bis of the Criminal Code.

> Further, as explained above, it follows from the notifications made by Nintendo to the users, as well as from the 3DS’s shell and protection measures, that users are not authorized to access the 3DS.

> “Neimod”’s statements in the IRC conversations and in relation to the photographs posted on the Internet sufficiently evidence that the defendant has accessed (or at least, has been trying to access) the 3DS. The mere attempt to hack a computer system constitutes a criminal offence under Article 550bis of the Criminal Code.

> As this acting involves breaking user licences, physical and technological protection measures, the defendant can only have acted knowingly. This is also confirmed by the vocabulary used by “Neimod”, which includes clear references to “hacking”, “haxx”, etc.

> Given the fulfilment of all the requirements set out in Article 550bis (1) and/or (4) of the Criminal Code, the offence of “hacking” or “attempt of hacking” must be upheld.

This is the Sony argument again. They tried to argue that the PS3 (as in, the platform itself, not any particular PS3) was a CFAA-protected computer when prosecuting Geohot. It's an insane claim, at least to computer engineers, especially considering DMCA 1201-like anticircumvention claims were also available and far more legally targeted to the exact thing they're trying to stop. This threat is like prosecuting someone selling fake DVDs by arguing that they owned the air inside DVD cases, and that by opening the disc they had trespassed on Hollywood's air rights or something.

If anyone here is an actual lawyer, is there any sort of merit to going after a hacking claim over an anticircumvention one? Remember, they aren't arguing he hacked Nintendo's 3DS, they're arguing that he hacked his own 3DS, which he somehow doesn't have access to? Is there any legal basis for a property owner not having CFAA access to their own property? Or is this just a weird throw-the-book-at-them strategy where because they can claim circumvention, they can also claim ownership over the computer that was circumvented?

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