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.”
FAQs
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.
Is modding a Nintendo Switch illegal? ›
Are they illegal? It is illegal to import, market, sell or distribute circumvention devices (such as game copiers, USB piracy sticks and mod chips). Nintendo has obtained many decisions from criminal and civil courts across the world that confirms this.
Is modding legal in the US? ›
The use of MODs can become illegal when they are used in a way that constitutes a crime under the Penal Code, including the so-called “cheating” behavior.
Why can t the Switch be modded? ›
But modding a Switch voids its warranty, and modified consoles are banned from all online services. Even with the resources available on the web, modding a Switch is far from a simple process, with a good chance the console could be “bricked” and rendered permanently unusable.
Is downloading Switch games illegal? ›
Therefore, the copyrights of games are valid even if the games are not found on store shelves, and using, copying and/or distributing those games violates Nintendo's intellectual property rights.
Can you get banned for a hacked Switch? ›
Do you want to know if your Nintendo Switch account was banned? If you suspect your account has been hacked or if your Switch has mods or is jailbroken, you may have been banned from using Nintendo services.
Is console modding illegal in the US? ›
Doing so violates the Digital Millennium Copyright Act (DMCA), and is therefore illegal. This includes using third-party tools to circumvent security protections, installing alternative operating systems, or making physical alterations to certain parts.
Is modding a crime? ›
Legal status of mods
In the United States context, the mechanisms of how the modder gets into the code of the game to mod it may violate the Digital Millennium Copyright Act or the Computer Fraud and Abuse Act or even simply the end-user license agreement (EULA). Most EULAs forbid modders from selling their mods.
Is modding a game illegal? ›
For example, creating a mod that infringes on the intellectual property rights of a game developer or publisher, such as by using copyrighted material without permission, could be illegal. Additionally, some games may have rules or terms of service that prohibit modding or certain types of mods.
Why do Nintendo switches get banned? ›
Banning your console renders your Switch useless, for all intents and purposes. It can be a jarring experience, leaving many players wondering what they did to merit such a heavy-handed punishment. Hacking, modding, or jailbreaking a Switch are among the most common reasons for Nintendo banning a console.
While some tech enthusiasts have found ways to mod earlier versions of the Nintendo Switch, the OLED model comes with updated hardware and security features that make it tougher to alter. Remember, tampering with your device can lead to unexpected issues or even a permanent ban from online services.
Has anyone gone to jail for ROMs? ›
But no one has ever been prosecuted for it – not even once. Mind you, websites sourcing ROMs have often been asked to shut down.
Does Nintendo Switch allow 18+ games? ›
Selecting “Custom” will allow you to make granular decisions about the content your children will have access to on the Nintendo Switch console: “Restricted Software” – allows you to restrict titles based on the age of your children up to 18+. This will translate to the ESRB rating parameters.
Are ROMs illegal if you own the game? ›
If you own a game physically, you are likely to emulate or own a ROM of the game. However, there's no legal precedent in the United States to say it's illegal. There is no trial on record of any company going to court over emulators or ROMs and their use.
How risky is a jailbreaking Switch? ›
One of the most significant risks of jailbreaking a Nintendo Switch is the possibility of rendering your console inoperable or "bricked." A bricked console becomes entirely non-functional, leaving you with a device that essentially becomes an expensive paperweight.
Is game modding illegal? ›
Legal status of mods
In the United States context, the mechanisms of how the modder gets into the code of the game to mod it may violate the Digital Millennium Copyright Act or the Computer Fraud and Abuse Act or even simply the end-user license agreement (EULA). Most EULAs forbid modders from selling their mods.
Does Nintendo support modding? ›
Nintendo will never support modding in any way. To mod on a switch you have to jailbreak it and then you can't use it online because the Nintendo account will be banned for being on a jailbroken device. Will never come. Console manufacturers have very strict policies about updating, even without considering mods.
Can Nintendo brick your Switch if you mod it? ›
For this reason, the only way to ensure Homebrew is completely removed from your console is to factory reset your Nintendo Switch. But even then, because the files and firmware of your Switch have been altered, you could still be at risk of an eventual update or reset bricking your Switch.
