Nintendo issues cease-and-desist for Switch modchip installation service

[Captain Marvel]

“All I’m doing is putting the solder on,” says installer, who doesn’t sell the chips.

Last month, Nintendo went to court in an effort to stop retailers from selling an upcoming line of internal Switch mod chips, which the company says enable and encourage piracy. Now, Nintendo is expanding its efforts by sending a cease-and-desist letter to one company that merely offers to install mod chips obtained elsewhere.
Connecticut-based Logistics Consulting LLC has offered a "Nintendo Switch SX CORE SX LITE Mod Chip Service" on its website for a few weeks, according to founder Ben Van Rheen. As noted on the site, the $60 offering is "NOT for the purchase of the Nintendo Switch SX CORE or SX LITE mod. We don’t make the mod or sell the mod, just the installation service."

That offering has now been suspended, according to the page, as Logistics is "currently in talks with Nintendo and their lawyers from New York."

“Nintendo will not tolerate such baldly unlawful conduct”

In a cease-and-desist letter sent on Nintendo's behalf, dated June 12 and obtained by Ars Technica, Jenner & Block lawyer Alison Stein argues that Logistics' installation service violates the anti-circumvention and anti-trafficking clauses of the Digital Millennium Copyright Act.

"Through the mod service you are offering, you literally break open a customer's Nintendo Switch, and then solder the SX Core and SX Lite into the console," Stein writes. "By offering to the public an installation service for the modchips, you are offering a service that is primarily designed to circumvent Nintendo's measures and thus violating the DMCA."

Logistics' page previously linked to outside vendors that were willing to sell Team Xecutor's SX mod chips, which allow for the installation of custom, piracy-enabling Switch firmware from an SD card. But those links were removed when those outside vendors "cancelled and refunded pre-orders presumably by Nintendo intervention," according to Logistics' page. Nintendo's lawyers cite those links and their removal as evidence that Logistics was "well aware of the unlawful nature of your entire operation."

"You are aware that my client has brought a lawsuit against certain resellers of these modchips and aware that certain resellers have canceled orders for the modchips and refunded their customers, and yet you are continuing to provide a service to install those very same modchips in Nintendo Switch consoles," the letter continues. "Nintendo will not tolerate such baldly unlawful conduct."

Asked for comment, Jenner & Block directed Ars Technica back to Nintendo. "Nintendo consistently protects the creative works of game developers and publishers who expend significant time and effort to create fun experiences," Nintendo of America said in a statement provided to Ars Technica. "Nintendo is passionate about protecting those creative ideas and will vigorously enforce its intellectual property rights to allow the continued delivery of unique and original entertainment experiences to our consumers."

“All I’m doing is putting the solder on”

Van Rheen, who said he has been repairing electronics as a hobby since he was 12, started Logistics in 2010 as a two-person computer repair business run by him and his wife. Modding services for systems ranging from the PS1 to the GameCube only make up 5 to 10 percent of the company's business, he told Ars.

About 20 people had pre-ordered Logistics' Switch modchip installation service in the two weeks it had been available, Van Rheen said. None of those installations have actually been performed, Van Rheen said, pending actual delivery of the chips by others.

While buyers are able to install the SX modchip line themselves, Van Rheen said his service is for people who might not have the experience or tools necessary for that fairly involved process. "If you're just starting out soldering, I wouldn't recommend it because it's so small," he told Ars. "I don't think it's hard, but for someone who's never done it before... there are like 20 pins you have to line up [and solder]."

After receiving the cease-and-desist letter and talking to Nintendo's legal representation, Van Rheen said he's still seeking more information about the legality of his service.

"[The lawyer] wouldn't get into what law I broke, she kept referring back to the letter," Van Rheen told Ars. "I said, 'I read the letter, I see your point, but how is this breaking the law?' [They said,] 'You're circumventing the copyright,' and I'm like, 'All I'm doing is putting the solder on, how is that breaking the copyright?'"

Though Van Rheen said he understands the SX chip's potential for enabling pirated games, his main interest in the device is the ability to let players export save data to an external SD card. "My argument for this device's existence is that it lets you export your saved games, whereas the regular Nintendo Switch does not," he told Ars. "You have to subscribe to Nintendo's service [for cloud saves] or you're done."
"Being able to obtain your personal data off the device, I think it's [an exception] that's nullified [in the DMCA]," he added. "I'm not a lawyer, I'm just following logic-based arguments."

As far as piracy is concerned, "It's not like the thing comes with all the games on it," he said. "You have to load the games on an SD card. It's not like I'm selling them a pre-loaded SD card with all the Nintendo Switch games on it. That's over that line. This just has the capability to play pirated games. You could buy a knife—it has the capability to kill someone, or you could just use it to chop up onions."

“Nintendo is in the right...”

Legal theories about knives aside, Van Rheen and other modchip installers are probably on the wrong side of the law on this matter.

"The DMCA is a bit of an odd animal that gets tweaked and adjusted over time," said Mark Methenitis, a Dallas attorney and former author of the Law of the Game blog. "But even with some of the 2015 rule changes, what we're looking at here is still pretty cut and dried, and in this case, Nintendo is in the right..."

Avoiding direct sale of the chips themselves isn't relevant here, Methenitis said, because of the anti-trafficking provisions in the DMCA.

"Anti-circumvention basically says that you can't circumvent a technological measure designed to protect a copyrighted work, and anti-trafficking says you can't offer those anti-circumvention technologies to others," Methenitis said. "These chips are designed for circumvention, and the service to install them would be 'trafficking in' that anti-circumvention technology."

"I wouldn't expect Nintendo to back down on this," he added. "They've got a pretty strong incentive to attack every part of the supply chain for these kinds of chips, and an installer is just part of that chain. They've also got a pretty long history of going after this kind of thing."

"If [Nintendo is] persistent enough, obviously I have to take it down," Van Rheen said of his plans going forward. "But I'm still failing to see what law is being broken. I can see if you were selling the device with games..."