Nintendo secures $2M settlement against Switch modder | Hacker News Reader

Nintendo secures $2M settlement against Switch modder

tomshardware.com

50 pointscebert30 comments

While I completely agree with the general hacker consensus that you should be able to do whatever you want with your hardware, up to and including buying and selling mod services, I cannot for the life of me understand this guy's thinking.

He's running a business modding people's devices, Nintendo catches on and sends him a cease and desist, and so he stops. Congrats, you have narrowly avoided certain financial ruin, and made a bit of cash in the process!

All forms of business and economic-self-preservation logic would tell this guy to continue ceasing and desisting, but he opens the shop back up shortly after and Nintendo, as they are known to do, sues his ass off.

What exactly did he think was going to happen here?

I'm inclined to agree with you. I modded my Switch. I steal from Nintendo whenever possible. I think they are a terrible company, but this guy should have known better.

I really want to see the DMCA shuttered altogether. Right to repair should trump all of these things.

So manufacturers can remotely brick, downgrade, and spy on us, but modifying our own devices is illegal. Consumer rights are in an unbelievably sad place.

2 million seems like a lot; but he was selling kits to enable piracy, this wasn’t just some hacker playing with his own electronics.

They mention another guy in the article who has to pay nintendo 25-30% of his salary for the rest of his life too. Bananas.

The right to modify one's own device includes the right to hire someone else to do it. Meanwhile corporations don't pay a dime for all the fair use and interoperability their DRM prevents, and whatever the hell we want to call the printer ink and tracking dot situation.

As clever as this sounds, this wouldn’t work as a defence.

I'm making a moral case, not a legal one. I'm well aware of how subverted the law itself has become.

Yeah, companies that treat customers this way earn a permaban from me. I got my whole family into Switch back in 2016. Now? We're all on Steam. The store actually loads properly, the selection is better, games are cheaper, I don't worry about being able to play my games on the next console, and I can hack my Steam Deck to my hearts content, and I can play games from flatpak and GOG.

It's a mad world that Switch 2 is the best selling console of all time.

So what if he was selling kits?

It's legal to sell kits along with instructions for modifying a firearm from semi-automatic to automatic fire, and the results of that have been several mass shootings.

So modding your console or selling tools to do it ought to be legal as well. The damage from that is far, FAR smaller than even a single mass shooting.

A YouTube got 5 years in federal prison in 2023 for selling kits to convert a semi automatic rifle into a full automatic. In some cases you can be prosecuted just for possessing all the component parts to covert your rifle, much less selling them with instructions.

A tiny plastic 3d printed “glock switch” is itself actually classified as a machine gun under the law.

A modded fully auto is likely less dangerous in practice, because you will burn through all your ammo without being able to aim properly.

This isn't to handwave away the horror of mass shootings, but most mass shootings are gang related, and largely by those already breaking a number of laws including owning a firearm illegally for those with felony history.

I don’t think that’s the case actually - there was a case recently where someone got sentenced to jail time just for selling a template that could be used to do so: https://www.justice.gov/usao-mdfl/pr/youtuber-and-auto-key-c...

“Enable piracy” in the same way someone selling music cassettes back in the 90s was “enabling piracy”.

Eh not quite the same. This guy was getting paid to specifically make it possible to play pirated media, and he ignored a cease and desist.

If you scaled this up to a large percentage of Switch consoles, no one would want to make Switch games anymore.

Nintendo is an evil, shitty company that weaponizes the courts, but I love good games/movies/etc. and want creators to be able to profit from them.

From the article:

> Daly, who sold devices like the MIG Switch and MIG Dumper

So, he just sold the devices that allowed you to make copies of Switch cartridges. Similar to someone selling cassette tapes or CD-/DVD-Rs and CD/DVD burners. He didn't sell illegally copied games or anything that tampers with Nintendo's IP. But as we all know, in front of US courts it's not about who's right but who has more money. And Nintendo has plenty of that.

It's not even just the US, that just happens to be where most of these companies register their copyrights, and therefore, where the "infringement" occurs.

Many Western countries subscribe to some form of "contributory infringement" law, where someone can be fined tens of thousands per-work-infringed for simply developing or distributing a tool that can be used by someone else to infringe copyright. It's absurd.

What he sold circumvented the technology protection measures which is covered under the DMCA. This is substantially different to reading and writing generic media.

See 28 in the original complaint: https://regmedia.co.uk/2024/07/02/modded_hardware_complaint....

Also 29c:

In order to achieve this, a MIG Switch circumvents Nintendo’s TPMs by tricking the Nintendo Switch console into treating unauthorized, pirated copies of Nintendo Switch games as authorized, official Nintendo Switch game cartridges.

The idiotic thing is he kept doing this even after a cease and desist.

Ok. He was getting paid to modify the device owned by someone else. A device NOT OWNED by Nintendo.

Nothing wrong with that. The problem is with people playing pirated media but its not feasible to go after everysingle person for the cost of a game so they had to trample over consumer rights. This is another case of rights being trampled to protect businesses where they dont need protection.

Cassettes don't circumvent protection measures.

If I put a fence around property that isn't mine, climbing over that fence isn't illegal. Resisting unjust restraint isn't illegal.

Hilariously, the same cannot be said for digital protection measures.

The MIG Switch isn’t circumventing anything either. It’s presenting the copied cartridge to the Switch exactly like the original. The Switch doesn’t have to be modified at all, so there can’t be any form of circumvention.

Then why not use the cartridge directly? Hm let see:

https://regmedia.co.uk/2024/07/02/modded_hardware_complaint....

28c)

That gibberish is - again - just talking about "unauthorized, pirated copies". I.e. a copy Nintendo doesn't want you to be able to make. The MIG Switch is not circumventing anything. It's just presenting an exact copy of a cartridge to the Switch. There's no "trick" involved.

In essence, Nintendo game cartridges are designed to be non fungible, this is because they are bestowed with a unique digital certificate which the Switch uses to authenticate that it is playing an official game cartridge. The provenance of the certificate is in the game cartridge. These certificates aren't just a simple serial number either, they are sophisticated in the sense that Nintendo uses it to detect multiple use of a game across many of its consoles, so it is a valid technology protection measure. This also prevents a counterfeit market. Just because you present the same exact bits of a game cartridge to a console in a different form factor doesn't mean the TPM isn't being violated.

I'm sure we could get into the weeds with technicalities and ifs and buts, but it isn't really about being technical or clever, it is about the spirit of the law and what the DMCA Section 1201 is about.

But having said that, DMCA 1201 (2) (a) and (b) is what you want.

The technical details don't matter in this case. You're doing a 1:1 copy/clone. You're not manipulating anything and thus you're not circumventing anything. No special care is taken about the certificate or anything else.

Just because the Switch can't tell the difference between an original cartridge and a cloned one doesn't make it illegal per se. (What's the protection measure that was circumvented there?) It's just that the law is "broken" as it was made by those people making money from it.

The technical protection measure is the digital certificate and possibly even the proprietary game cartridge form factor.

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

In my opinion (A) is violated because the non fungibility of the game cartridge is violated by copying the certificate to present an inauthentic cartridge as genuine.

(B) is pretty straightforward.

But I don't know, maybe I'm wrong, maybe Nintendo lawyers are wrong, and this guy could've fought this specific charge over a technicality. Reminds me of how Sov Cits always get out of traffic infringements because they're "traveling".

A sad day for software freedom

how kind of them...

disgusting the way they go after people

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