Warning: This is an old post, written in April 2011.
The (potential) Case Against Nintendo
Since the announcement of region locking on the unit, there has been controversy about the Nintendo 3DS: they threaten to brick any 3DS unit that has been used with unlicensed software or hardware.
As far as I can tell, this is not legal. Please keep in mind, though, that I am not a legal expert; I am simply a college student.
This warning, in case the text is hard to read, states: “Any unauthorized technical modification of the hardware or software, or the use of an unauthorized device, will render your Nintendo 3DS system permanently unplayable and result in removal of unauthorized content.”
Nintendo has had similar warnings for previous consoles, as can be seen here.
In the Wii's case, system updates disabled homebrew, but did not cause modified systems to lose functionality.
This warning applies to any modifications done to the console's firmware, including potential homebrew and the ability to play region-locked games.
Nintendo's statement not only affects those who may modify their console to allow the playing of games from outside of the unit's region, but also unlicensed “hardware”, which could potentially include battery packs and the like. Whether or not Nintendo can tell if one has used an unofficial peripheral, I do not know. However, this would severely affect those who buy third-party battery packs, especially considering the 3DS is currently known to have a rather short battery life.
However, this is not legal: the Nintendo 3DS is a good, not a service. When one purchases a good, it becomes their own; they can do whatever they wish with it. Uniform Commercial Code, the law that governs what constitutes a good or service and what may be done with it, implies that once the contract is fulfilled (in this case, the contract between Nintendo—or even retailers—and consumers to pay $250 for a Nintendo 3DS unit), that good belongs to the consumer; thus, anything could be done to it. The UCC states that the seller can only recall goods if the contract is breached. In the case of Nintendo, if one somehow worked out a plan to pay for the 3DS in installments and could not afford to do so, /then/ they could recall or brick a console. As it is, however, once the 3DS is purchased, anything may be done to it.
Nintendo would be completely allowed to suspend any and all online services from modified consoles, but completely causing a console to cease functionality is illegal. Additionally, copyright law—after the courts declared jailbreaking of iPhones legal—has stated:
(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.
This, if I am not mistaken, informs citizens of the United States that once a console is hacked, provided nothing illegal is done afterward, the console itself is still valid. Basically, this means that should someone hack their 3DS to obtain region-free functionality to play games they purchased in other regions, that is legal; the system legally cannot be bricked as a result. Sony's recent settling of the lawsuit against Geohot, for hacking the Playstation 3, had no legal consequences that I can discern, and thus would not affect this potential case.
The warning also affects the use of flashcarts as a legal backup to carrying around multiple 3DS and DS cartridges; however, that itself could be considered illegal. Copyright law has stated that copying of copyrighted movies is only legal under certain circumstances:
(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.
If the same law is applied to video games, it becomes clear that the law does not allow consumers to create backups of their own media. While I feel it is a little ridiculous that the law does not allow for consolidation of software into one physical format by the user, Nintendo would be completely within their rights to suspend any services they provide to users of flash cards. However, they would still not be within their rights to cause the entire console to cease functionality.
I will not lie and say that hacking the Nintendo 3DS would not potentially allow piracy: it will. However, the modification of a console and its firmware is not the same as piracy. Opening a system to allow for new applications to be run on it is something completely separate, and protected by law. Nintendo would be within their rights to suspend any services to users who have used their devices for piracy.
Copyright law states that, provided nothing illegal is done as a result of it, the modification and hacking of a Nintendo 3DS to enable homebrew and region-free functionality is legal. Nintendo cannot legally cause a Nintendo 3DS to cease functioning; the only thing they may do is suspend any online services offered to users of modified consoles.