[HN Gopher] Nintendo's big piracy case is a sad story
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       Nintendo's big piracy case is a sad story
        
       Author : danso
       Score  : 119 points
       Date   : 2022-06-08 11:46 UTC (1 days ago)
        
 (HTM) web link (kotaku.com)
 (TXT) w3m dump (kotaku.com)
        
       | rjh29 wrote:
       | Has anyone actually looked at the Switch piracy situation? There
       | are dozens of people running pirate eshop clones run of Google
       | Drive hosting all games and DLC, people just connect a client to
       | it and download whatever they want. The domains are on
       | bulletproof TLDs and the Google accounts rotate, often using free
       | university accounts with terabytes of storage.
       | 
       | I guess Nintendo don't care because the number of hacked Switch
       | devices is pretty low, and targeting hardware modifications is
       | easier than going after the elusive software end of things.
        
         | [deleted]
        
         | smoldesu wrote:
         | Believe it or not, that's actually legally very difficult to
         | prosecute. NSP and XCI files are unusable without a signing key
         | that attests the owner has purchased the game, which makes them
         | a perfect candidate for the "backups and archives" clause of
         | the DMCA act.
         | 
         | On the other hand, what Bowser did was pretty much indefensibly
         | a crime. He distributed Nintendo's private signing keys to
         | customers for a profit, something he knew was privileged IP,
         | but he continued to sell them anyways.
        
           | Retr0id wrote:
           | > He distributed Nintendo's private signing keys to customers
           | 
           | No, he didn't.
        
             | smoldesu wrote:
             | The TX mod was designed to use XCI files, which required a
             | signing key to run right? Their firmware had no way to
             | launch software without keys.
        
               | Retr0id wrote:
               | They patched out the signature checks from the firmware.
               | 
               | Nintendo's private keys are stored in HSMs, theres very
               | little chance of them getting stolen.
        
       | danuker wrote:
       | Nintendo will never see my sponsorship ever again.
        
       | mproud wrote:
       | Thanks to Mr. Bowser, Nintendo was forced to release a new
       | Nintendo Switch? Do they really mean chip or firmware
       | modifications?
        
       | aasasd wrote:
       | Idk how I'm expected to read anything on that site when a lot of
       | unrelated junk keeps occupying the screen instead.
        
       | xivzgrev wrote:
       | I can't believe this guy's last name is Bowser. This is exactly
       | something King Koopa would do.
        
         | austinprete wrote:
         | Interestingly enough the president of Nintendo of America is
         | Doug Bowser. So this case is basically Bowser v. Bowser
        
           | bobbyi wrote:
           | The lawyer who defend them in Universal City Studios v.
           | Nintendo was John Kirby.
           | 
           | Although that one's not a coincidence because they named the
           | character after him
           | 
           | https://en.wikipedia.org/wiki/John_Kirby_(attorney)
        
       | zzzeek wrote:
       | is this everyone on HN's first time reading that prison is not
       | very good for people? kids get longer sentences for stealing
       | candy bars. the entire prison system is state organized torture
       | and it basically shouldn't exist.
        
         | aaron695 wrote:
        
         | Synaesthesia wrote:
         | We arrest criminals, throw them.in a torture chamber for years
         | and then are surprised that they aren't rehabilitated.
         | 
         | If harsher prison sentences "deter" people from crime, why does
         | the US not have a lower crime rate than Europe or Japan?
         | Clearly other factors are at play, including, I think, the high
         | degree of alienation in our society.
         | 
         | I think it's important that we think abour abolishing orisons
         | and looking at the brutality ans arbitrariness of the system.
        
           | MetaWhirledPeas wrote:
           | > I think it's important that we think abour abolishing
           | orisons and looking at the brutality ans arbitrariness of the
           | system.
           | 
           | I'm all for doing _something_ , but what do you use to
           | replace the prison system? Just don't arrest people?
        
             | stefantalpalaru wrote:
        
       | boomboomsubban wrote:
       | The Axios piece linked gives an entirely different view of the
       | case. Like the judge saying
       | 
       | >"What do you think?" Lasnik asked Nintendo's lawyer at one
       | point. "What else can we do to convince people that there's no
       | glory in this hacking/piracy?"
       | 
       | https://www.axios.com/2022/06/06/nintendo-hacker-court-trans...
       | 
       | The anti-circumvention aspect of the DMCA is absurd.
        
       | fxtentacle wrote:
       | What a coincidence that the guy's last name is literally the name
       | of a famous Nintendo antagonist.
       | 
       | TLDR: Apparently he was involved with Xecutor selling modchips.
        
         | superdisk wrote:
         | How on earth is selling mod chips illegal?
        
           | TAForObvReasons wrote:
           | In this case, advertising the ability to pirate games removed
           | any plausible deniability
        
           | boomboomsubban wrote:
           | He pled guilty to violating the DMCA.
        
         | mlyle wrote:
         | There's a lot of Bowsers that pop up in correlation with
         | Nintendo. Doug Bowser is the president of Nintendo of America.
        
         | owlninja wrote:
         | Somewhat related, the President of Nintendo of America is Doug
         | Bowser.
        
         | bitwize wrote:
         | NOA's current president has the same last name (but doesn't
         | appear to be a relation). A fact which Nintendo played off of
         | in Nintendo Directs: https://m.youtube.com/watch?v=9dsfr0q1wSc
        
       | philips wrote:
       | > I personally haven't got the vaccine, and the reason, I am
       | skeptical with my medical condition, how it will affect me, and I
       | haven't been able to actually have proper medical treatment
       | because I haven't been able to have a one-on-one with a doctor to
       | see if the vaccine would be possible with my health conditions.
       | When I first got arrested, I was 410 pounds. I had to use a
       | wheelchair.
       | 
       | The lack of proper healthcare for someone in custody is an
       | embarrassment to the country.
        
         | bena wrote:
         | First: He's probably been told that he can get the vaccine just
         | fine which is why he puts the condition of having a "one-on-
         | one" there. He was likely told based on a doctor reviewing his
         | medical history and condition.
         | 
         | However, healthcare for the incarcerated in general is pretty
         | poor. In this regard, he's not really outside the norm.
        
           | giraffe_lady wrote:
           | what hn imagines: a nurse or prison paramedic taking the
           | concern seriously and relaying it to a doctor familiar with
           | the patient's charts and medical history "I checked with your
           | doctor and he said it's fine"
           | 
           | reality: a prison guard with his own health problems from a
           | TBI in iraq who did AED cert for the extra $.50/h just
           | meeting this patient for the first time "I checked with your
           | doctor and he said it's fine"
           | 
           | Yeah I'm gonna trust the prisoner's estimation of how
           | trustworthy the medical advice he's receiving is.
        
             | gamblor956 wrote:
             | Reality: a nurse relays the inmate's concerns to a doctor
             | overwhelmed with patients who is not familiar with this
             | particular inmate's medical background, unless that inmate
             | is already a regular in the infirmary.
             | 
             | Prison doctors are actually doctors. But like most doctors
             | these days, they're usually too overwhelmed with patients
             | and too underwhelmed with resources to do much more than
             | triage.
        
             | gowld wrote:
             | You are going to catch covid. I am going to catch covid.
             | Everyone is going to catch covid. At 410 lbs, life is a
             | death trap, prison doubly so, vaccine or not.
        
               | pessimizer wrote:
               | You're right, there's no need for health care for the
               | fat. They're going to die anyway. The sicker people are,
               | the less we should take care of them.
        
           | philips wrote:
           | Yeah I agree we don't know the full circumstances. But the
           | data coming out of the pandemic in particular has been a
           | mess. Like the stories of inmates having to improvise masks.
           | 
           | https://www.cnn.com/2021/01/11/us/jails-prisons-vaccine-
           | prio...
        
       | if_by_whisky wrote:
       | I used to work for an expert witness who testified on valuations
       | in IP infringement cases. I really lost faith in the way the US
       | handles IP infringement in that job. I know patents are
       | contentious in tech, but sometimes I think copyright is just as
       | bad. I know it's not a popular opinion, but seeing how things
       | actually play out really made me feel for defendants in those
       | cases.
       | 
       | Regardless of what you think of the effectiveness of IP
       | protection, the way damages are calculated (and ultimately
       | determined by courts) is just awful. I haven't looked at the
       | specifics of that $65M calculation, but if the real number were
       | closer to $650k I wouldn't be surprised-- 2 orders of magnitude
       | was a pretty typical spread between plaintiff and defendant
       | expert witnesses' valuations in the IP cases I worked on.
        
         | efitz wrote:
         | There is a very real cost to society to provide patent and
         | copyright. We have to have additional law enforcement, court,
         | and prison capacity. It's not clear at all to me that society
         | is getting its money worth in defending essentially rent
         | seeking behavior from big business. It's also not clear that
         | either patent or copyright in their current form actually
         | "promote progress in the useful arts".
         | 
         | I hate the terms "intellectual property" and "piracy" because
         | patent and copyright are not much like property at all, and
         | because actual piracy is a crime of violence and nothing like
         | infringement. And it's not clear to me that the punishments
         | inflicted are reasonable given the impact of the "crime".
         | 
         | Given that, I believe that we would be better off without
         | patent or copyright, or with only a very modest time period of
         | a couple years.
        
           | ChadNauseam wrote:
           | How would you fund things like the discovery of new drugs, or
           | the creation of big-budget movies, without parents and
           | copyright respectively?
        
           | willcipriano wrote:
           | It isn't 1900 anymore. With things with additive
           | manufacturing and other innovations you can go from prototype
           | to product faster than ever. A few year head start should be
           | sufficient reward for most innovations. Perhaps you could
           | handle the special cases (ie. somebody spends a billion
           | dollars to invent a engine that runs on water) as one offs.
           | 
           | Same with movies, television shows and music. They just don't
           | have the impact they used to. You can do special effects for
           | a few grand that cost a million dollars a few decades ago. As
           | it is faster and easier than ever to make a movie, we don't
           | need to offer such a long period of time for exclusivity.
        
         | fxtentacle wrote:
         | Well in this case, we're talking about a industry espionage and
         | modchip crew that has been around since the first Xbox. I
         | personally know people who used their products and (as the
         | result) never ever purchased a game that they played. So my
         | experience would suggest that Xecutor modchips were really
         | popular. I'm pretty sure $65m is a rather conservative estimate
         | of the lost sales that they caused.
        
           | shakes_mcjunkie wrote:
           | If the chips didn't exist though would they have actually
           | bought every one of those games? Would they have bought the
           | console? I doubt this is information that could actually be
           | gathered and calculated accurately as damages.
        
             | fxtentacle wrote:
             | There's likely millions of people in a situation like me.
             | If each of them only didn't buy one single $60 game because
             | of the modchip, then that sums up to $60 mio.
             | 
             | I agree that pirated copy != lost sale. But if you play 20+
             | games and buy 0, I'm pretty sure without modchip it would
             | even out at maybe buy+play 5 games. Plus there's games like
             | the Zelda series that every hardcore fan will play. So for
             | those games, I think it is fair to assume 50% of piracy
             | would have been a lost sale.
             | 
             | And lastly, how do you know that people didn't "buy" their
             | cracked games? When I was traveling Asia, you could buy a
             | modchipped Switch and bootlegged games in the same store.
             | So then you still pay $5 for a new Switch game, it's just
             | that the money goes to some Chinese counterfeit group, not
             | to Nintendo.
        
               | gowld wrote:
               | > But if you play 20+ games and buy 0, I'm pretty sure
               | without modchip it would even out at maybe buy+play 5
               | games.
               | 
               | This is absolutely absurd.
               | 
               | Look at the modern internet. "Free" is consumed at rates
               | far more than 4x of "paid equivalents that existed before
               | the free option".
        
               | BiteCode_dev wrote:
               | > There's likely millions of people in a situation like
               | me
               | 
               | Unlikely. Most console users don't even know what modding
               | mean, and among the few that do, fewer even make the step
               | to do it. It's not trivial.
               | 
               | It's very niche, at least in the occidental markets.
        
             | deweywsu wrote:
        
           | p1necone wrote:
           | There have been periods of my life where I pirated almost
           | every game I played. If it wasn't for piracy... I wouldn't
           | have bought any games, because I didn't have any money to
           | spend on them.
           | 
           | Then Steam and Actually Having a Job happened and I didn't do
           | that any more.
           | 
           | I still pirate games, but it's only ones that aren't being
           | sold any more, so I don't see who's missing out there.
        
         | shakes_mcjunkie wrote:
         | Isn't it also just generally impossible to say if a sale was
         | lost because of piracy? A pirated copy may never have actually
         | been a sale and how would anyone know?
        
           | jonny_eh wrote:
           | You could say the same of a stolen DVD. Would the thief have
           | otherwise paid for the DVD? At least in the case of a
           | physical good, you could argue that the item being stolen
           | "may" have prevented someone else from buying it, but even
           | then there's no guarantee.
        
             | entropicdrifter wrote:
             | And in the case of the stolen DVD, the DVD is physically
             | gone from where it was. In the case of digital copies,
             | nothing is lost besides the _potential_ for one particular
             | sale.
        
             | tshaddox wrote:
             | That's a totally different, much simpler question. A stolen
             | DVD is very clearly a reduction in the number of DVDs the
             | seller can possibly sell.
        
               | jraph wrote:
               | Devil's advocate, it's not that simple. Producing a DVD
               | is cheap, the seller can produce them for almost nothing
               | per unit (not zero though).
               | 
               | It could be that this stolen DVD allows N people to
               | discover its content and buy the DVD. The seller wins
               | from this stealing even for a small N. N could be bigger
               | than when downloading the movie instead, because the DVD
               | can be seen in a shelf for example.
               | 
               | Is it fundamentally different? (it's a genuine question,
               | I have not studied anything on the matter).
               | 
               | The only difference I see is that almost nothing = zero
               | when downloading the DVD's content instead of stealing
               | the physical object.
               | 
               | edit: I actually see a difference, there's no guarantee
               | that a stolen DVD does produce any sale, and so there is
               | a loss even if it is small, but I think the question is
               | still not simple to answer.
        
               | tshaddox wrote:
               | > Producing a DVD is cheap, the seller can produce them
               | for almost nothing per unit (not zero though).
               | 
               | That's true, although I was thinking more about retailers
               | who presumably pay much more than the marginal cost
               | (though still much less than the retail price). It's also
               | probably true that copyright laws are responsible for the
               | vast majority of the commercial value of physical copies
               | of digital media. Perhaps an easier way to see the
               | fundamental difference is that when you're downloading a
               | copy of a movie from BitTorrent, all the parties actively
               | involved are willing participants.
               | 
               | > It could be that this stolen DVD allows N people to
               | discover its content and buy the DVD.
               | 
               | This is also a real possibility, and is a strong argument
               | for copyright holders to rethink their business models
               | (and, in my view, for societies to rethink copyright
               | laws). But I don't think it's a strong argument for
               | treating the theft of a physical DVD and someone
               | torrenting a movie as being remotely comparable.
        
               | [deleted]
        
               | thaumasiotes wrote:
               | > A stolen DVD is very clearly a reduction in the number
               | of DVDs the seller can possibly sell.
               | 
               | But that's not true; you would have to assume that the
               | number of DVDs the vendor orders is independent of the
               | number of DVDs the vendor loses to all forces including
               | both sales and theft. That assumption is obviously false.
               | If you run a store, you're not limited to ordering a
               | single shipment of whatever DVD; if it sells well, you
               | can order additional shipments.
        
               | fcsp wrote:
               | Not if it's stolen from a person who bought it, instead
               | of a warehouse
        
             | duped wrote:
             | If the DVD was taking up shelf space and no one was buying
             | it the thief might actually be saving them money
        
               | jonny_eh wrote:
               | > If the DVD was taking up shelf space
               | 
               | I think in 2022, that's true of most DVDs.
        
             | lmm wrote:
             | The damages are at least the wholesale price of the DVD
             | (probably half the consumer price) in that case. With
             | piracy that becomes harder because the marginal cost is
             | zero.
        
           | midasuni wrote:
           | In many cases copyright infringement doesn't result in a lost
           | sale. If the copyright holder refuses to sell the product,
           | then surely the damages are zero.
           | 
           | The majority of copyrighted material is not available for
           | purchase
        
           | vanderZwan wrote:
           | A lot of early studies on piracy suggested that it actually
           | promotes sales more than it removes them. It's just that this
           | is mainly on the side of the less famous musicians, artists,
           | etc, because it gives them more reach (in the case of music
           | people were less likely to try out their stuff if they only
           | had a limited budget to buy records and little opportunity to
           | listen to albums beforehand). It's mainly the biggest
           | mainstream acts that see reduced sales.
           | 
           | Personally I don't have much of an issue with that. Of
           | course, this was before streaming was a thing so who knows if
           | the effects of piracy on sales have shifted again as a result
           | of that.
           | 
           | And then there is of course the angle that we're artificially
           | limiting supply of digital goods anyway, but that's an
           | entirely different can of worms.
        
       | dubswithus wrote:
       | > I personally haven't got the vaccine, and the reason, I am
       | skeptical with my medical condition, how it will affect me, and I
       | haven't been able to actually have proper medical treatment
       | because I haven't been able to have a one-on-one with a doctor to
       | see if the vaccine would be possible with my health conditions.
       | 
       | He talks as if he's one of the first obese persons to be eligible
       | for the vaccine.
        
       | racl101 wrote:
       | Of course Mario will stick it to a guy named Bowser.
        
       | I_am_tiberius wrote:
       | Nintendo should be ashamed.
        
         | danuker wrote:
         | They probably lobbied for the law. I know I'm boycotting them.
        
       | ydnaclementine wrote:
        
       | rsync wrote:
       | What is the crime here ?
       | 
       | Is this a DMCA violation for using modchips to defeat an IP
       | protection scheme ?
       | 
       | I am not up to date on the current jurisprudence here - if I
       | clean-sheet reverse engineer (Nintendo hardware) is it considered
       | illegal to create and market modchips based on that ?
       | 
       | Or did they have proprietary code/firmware/loaders copied into
       | them ?
        
         | rhexs wrote:
         | I believe they were selling software packages that ran due to
         | the modchips that were advertised to enable piracy.
         | 
         | Had they not shipped code-signing patches and advertised this
         | as a way to private games, I'm curious if the defense would
         | have been easier. What'd they get him on -- the DMCA?
         | 
         | "Conspiracy to Circumvent Technological Measures and to Traffic
         | in Circumvention Devices"
        
         | boomboomsubban wrote:
         | He pled guilty to the anti-circumvention part of the DMCA. Any
         | attempt to bypass DRM is illegal, save for a number of
         | exemptions listed by the Library of Congress every two years.
         | So yes, your reverse engineering would be illegal.
        
           | izzydata wrote:
           | How can that be possible? What if I made the worlds worst DRM
           | and then sued everyone who bypassed it? How can bypassing DRM
           | even be illegal? If someone owns their hardware then you can
           | do any hardware or software modifications you want to it.
        
             | Retr0id wrote:
             | I believe the wording used is "effective technological
             | protection measure". So it's presumably up to the courts to
             | decide whether the DRM was "effective" in the first place.
             | (I am not a lawyer etc. etc.). I suspect it largely comes
             | down to intent. To make an analogy, you'd still be on the
             | hook for breaking-and-entering, even if your victim's front
             | door was made of cardboard.
             | 
             | > How can bypassing DRM even be illegal?
             | 
             | Same way anything else can be illegal, they made a law
             | saying so.
        
               | boomboomsubban wrote:
               | The law includes a definition of that term
               | 
               | >a technological measure "effectively controls access to
               | a work" if the measure, in the ordinary course of its
               | operation, requires the application of information, or a
               | process or a treatment, with the authority of the
               | copyright owner, to gain access to the work.
               | 
               | So bypassing trivial DRM is still a crime.
        
             | d_meeze wrote:
             | You may want to support the EFF in their challenge to this
             | law: https://www.eff.org/press/releases/eff-asks-appeals-
             | court-ru...
        
             | [deleted]
        
         | smoldesu wrote:
         | It's an interesting story, I used to be part of the modding
         | community so I can lend some insight here.
         | 
         | In the early days of Switch hacking, there were mostly people
         | just poking and prodding at different parts of the console to
         | see if it would spit out interesting stuff. Fairly rudimentary
         | stuff, like checking for secret Amiibo with custom NFC tags,
         | hacking together Joycon drivers and even opening the device to
         | play with the exposed hardware: all of it perfectly legal.
         | Eventually though, someone found the secret switch on the
         | bookshelf (shorting out one of the physical controller
         | connector pins if you're curious), and the community was off to
         | the races to design a custom bootloader/firmware like they did
         | on the 3DS and Wii.
         | 
         | This is where the problems start, as I'm sure most people here
         | would know. Messing with software is a dangerous thing (legally
         | speaking), and so effectively 2 camps were formed:
         | 
         | - Team Xecuter, a close-knit circle of devs who intended to
         | hack the Switch come Hell or hard-modding. They had no
         | stipulations against using leaked code, directly profiting off
         | their customerbase or inflaming their community, when it came
         | down to it.
         | 
         | - Team Atmosphere, an open-source project that went with the
         | "slow and steady" approach, attempting to find an ethical
         | softmodding solution that could easily be applied to any Switch
         | without fear of legal repercussion.
         | 
         | Both of these teams would fight each other viciously over the
         | course of 2 or 3 years. Team Xecuter was first to figure out
         | game piracy, but Atmosphere had a working warmboot before
         | Xecuter did. Atmosphere was able to install games locally
         | before Xecuter could, but Xecuter figured out booting from
         | attached storage before Atmosphere did. The groups traded blows
         | like this continually until, like Napoleon looking out on the
         | Mediterranean, there were no more features to conquer. Xecuter
         | had an easy-to-install commercial hardmod that was almost
         | exclusively designed for piracy, while Atmosphere had polished
         | off a more difficult but rewarding softmod, with emulation and
         | homebrew capabilities (and eventually piracy, too).
         | 
         | So, what was Team Xecuter's crime? Putting the signing keys in
         | the hardmods they sent out. With every successive Switch
         | firmware update, Nintendo would issue a new list of attestation
         | keys that came with each game purchase. To allow unsigned games
         | to be booted, TX packed in these keys (and offered them on a
         | monthly basis afterwards to hardmod owners), which really sent
         | Nintendo off, leading to arrests like the one mentioned here.
         | Atmosphere remains thankfully untouched today, and even though
         | the odds looked stacked against them, they have delivered the
         | most polished Nintendo Switch modding experience you could ask
         | for. It's quite wonderful stuff, especially if you've ever
         | wondered "how would this Python script run on Switch...?"
         | 
         | ...oh, and the Switch modding community was absolutely _insane_
         | for those few competitive years. There were a few other
         | noteworthy community villains like Blawar, but that 's a story
         | for a different time.
        
           | roastedpeacock wrote:
           | I said in a previous discussion
           | 
           | > Nintendo have had a conflicted stance about community
           | projects over the years. From threatening UltraHLE (early
           | Nintendo 64 emulator) developers back in the late 90s to
           | largely ignoring the Wii exploits and homebrew scene in the
           | mid-to-late 2000s to attempting to hire private investigators
           | to identify and implicate 3DS homebrew developers in
           | 'illegal' activities.
           | 
           | Ultimately I think if Xecuter did not have their product so
           | closely intertwined with enablement of piracy and
           | distribution of copyrighted content it would leave Nintendo
           | less legal ammo to use against them and potentially make it
           | not worth pursuing.
           | 
           | Important to note the RCM exploit only works for the first
           | revision of Switch units. This does not justify other
           | potential crimes Xecuter may have done but certain previous
           | mod-chips for certain previous consoles have been open-source
           | in a clean-room design not including copyrighted content by
           | the original vendors thus potentially removing issues of
           | copyright infringement. Sad the Switch scene could not be the
           | same.
        
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