[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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