Nintendo has been fighting piracy since they started the whole electronic gaming business. Donkey Kong the arcade game itself was a prime target of piracy, with copied arcade boards popping up frequently due to its popularity. The NES / Famicom piracy was massive despite the whole physical cartridge thing, with numerous Asian countries producing copies of the system and selling those systems and games across the globe. Hell, the Soviets / Russians enjoyed Dendy console as their mainline NES copy, with effectively all games being pirated copies of some kind. The SNES saw this practice much less, but few did fall between the cracks, with Super Noah’s Ark 3D being the most known in the West. Now, the N64 barely saw any piracy, as the concentrated efforts had moved to the PlayStation. In some ways, you can determine what system is the most popular in any given system generation by how much effort is there to put piracy into effect and how successful it has been. It’s no surprise then than the GameCube piracy was less enticing than PS2, mostly because a more popular system also has the most games for people to take a crack at. Then we come to the Wii, which wasn’t just a popular system, but a massive success and its piracy wasn’t just easily accessed; it was made into something everyone in the mainstream could do by themselves and take advantage of. Before this most systems required either external carts, an external device plugged in or physical modification to the PCB to make piracy easier. With PlayStation, you could just have your local electronics store install a BIOS chip that jumped over checking if the disc was legit or correct region. Then you could burn PlayStation games willy nilly. There was also an external box that allowed you to boot into a special menu and skip that checking routine. Wii U mostly had piracy because it was easy to implement after the Wii, but it never really had titles people were interested in. There’s a reason why Nintendo kicked it out rather fast and started the 9th console generation well before Microsoft and Sony were putting their systems out.
Seeing Nintendo considers themselves taking a hefty blow in their sales because of piracy with the Wii (in reality, it’s because Nintendo effectively abandoned the system mid-way through its lifecycle and gushed out garbage instead of putting further effort into high calibre titles) they have been taking rather heavy-handed actions against piracy with the Switch. Such things like the Switch having physical traces on the PCB that get burned out with certain updates to effectively suing everyone who might enable the system being cracked open for whatever reason. The latest hit was against Le Hoang Minh, who was selling RCM Loader, a dongle that would enable homebrew to run on the Switch. While Nintendo can’t attack Minh for piracy per se, their attacks as of late have been against groups selling dongles like this, or groups that are offering service that would modify the Switch to run homebrew software. In Nintendo’s eyes, these are all against the rule of law and End User Agreement as well as breaking copyright by circumventing the system’s protections. Nintendo DMCA’s these people often and drags them to court.
I’m not going to dance around the subject and claim that people who are purchasing these items and services have the end intention of running homebrew on their system or other more legitimate methods. It’s rather clear that piracy is one of the many end-goals here and both consumers and corporations have to live with it. However, most actions these hardware companies take to prevent piracy end up damaging the legitimate customers. For example, Sony removed the ability to run Linux on PlayStation 3 because someone managed to find a way to run homebrew through it. Not only a complete element was removed from the system, but Sony ended up paying millions because of that as they had advertised the system with Other OS capability. Now that the Switch destroys physical traces on the system, it might cause troubles down the line. Of course, fighting piracy with online-only systems and digital-only sales is one method of battling piracy as well, both of which don’t do favours for the general customer. If anything, battling piracy has only caused customers to lose control over their games and system, which actually has turned a minor section of these customers looking into homebrew and piracy even more in order to take full control over the products they bought and own.
Is Nintendo in the right in their crusade against these homebrew enablers? They believe so, and they believe their DMCA’ing and taking legal actions to protect their intellectual property that they see is being infringement by circumventing protections. Team-Xecutor, one of the more prolific teams offering homebrew for the Switch, accused Nintendo of legal scare tactics and censorship. There’s little doubt Nintendo wouldn’t try to intimidate groups like Minh and Team-Xecutor first before taking full legal actions, although throwing censorship in there is a dubious claim. However, all these products that enable homebrew can be seen as part of the Right to Repair movement. Apple and Nintendo, and effectively everyone else who offers electronics, is in the same boat here, as third party products, be it goods or services, would take repair and service revenue out from their pocket. In some cases, like with Apple and third-party repair parts, they would lose control over the overall device and its parts. This is under the guise of offering better and more qualified service, which is straight-up bullshit. This total control over the systems has stemmed from customers trying to fix their own devices or had third party members trying to fix it for them and then claiming warranty from the corporation. It was more or less a 50/50 chance whether or not they would repair or replace the product, but more often than not they’d end up replacing it simply because that was the cheaper option. Nowadays large amounts of customers still play the system and claim warranty on functional items. Stores rarely check these products and simply send the supposedly faulty device back and the customer gets a new device for free, and another few years of warranty. Warranty which they’ll go claim back, effectively getting a replacement device every few years. This is just one common example of how the customer-provider relationship is being abused constantly by the consumer. It becomes rather understandable why companies would want to take total control over the devices and software the customer purchases simply to prevent unnecessary losses gathered from customers effectively screwing them. In the end, all the customers at large get screwed.
Whether or not these products that allow homebrew on the Switch actually infringe Nintendo’s rights in any way are less important than the results they cause, and that is piracy. While piracy is seen as a massive threat to any entertainment industry and portrayed as such, it is in actuality completely different beast. There is no better form of advertising or showcasing the value of a product other than giving it in the hands of the customer himself and the giving freedom to go town with it. Many films and music albums have been sold when people have seen and listened to a pirated copy and the same applies to the game industry. Game demos was found to damage game sales because they showcased how terrible those games could be. All sales are final is the mantra certain companies want to repeat, as they know the product they’re selling is in many ways faulty. Both sides should find a way that wouldn’t infringe either side in good faith, but that’s something that won’t ever happen because that’d require consumers to change their habits and mindsets to a large degree and corporations to lose most of the control they have over products they’re now selling. Seeing as global corporations are moving towards abolishing the idea of owning anything you buy, replaced by a subscription model that would give them complete control over the product as well as make them more profit, that’s something we’re never going to reach. Ultimately, piracy, IP and trademark infringement are used as excuses to further destroy whatever control and ownership the consumer. You’re more or less expected to consume just the same but never see the end product truly in your hands. If and when things are digital, this applies doubly so. Even with a company like Nintendo with a family-friendly image, the end goals seems to be the same as with every other company; work to consume, but never to own or control what you are consuming.