Nintendo’s nostalgic instant sellout NES Classic (still available from scalpers) only comes with 30 games and no way to add more: but it only took two months from the announcement date for intrepid hackers to jailbreak the device and come up with a way to load your favorite ROMs, using a USB cable and a PC.
The hacks are pretty gnarly: you have to dump the game’s ROM to your computer, modify it, and then reflash the console.
You are legally allowed to format shift your own games, but bypassing “effective means of access control” on copyrighted works is a potential violation of section 1201 of the DMCA, which provides for both criminal and civil penalties.
The fuggly nature of the jailbreak for the Classic is a good example of how DMCA 1201 distorts the market for technology. In the 1980s, companies saw that the public had an appetite for format-shifting their vinyl albums to cassettes, bringing their music with them into the new contexts created by the Walkman and the in-car cassette deck. The electronic industry responded by making all-in-one stereos with turntables and cassette decks that let you transfer your records to tape.
Now, the record industry hated this, but copyright didn’t give them the right to stop it. When Congress created copyright, they did not transfer the right to stop the public from transferring their lawfully acquired copyrighted works from one medium to another (this was affirmed by the Supreme Court in 1984, when it ruled on the legality of VCRs in the Betamax case).
All businesses have a mix of commercial preferences (the things they wish their customers and competitors would do or not do) and legal rights (the things they can sue people for doing and not doing), and all businesses wish that more of their commercial preferences were legal rights. But legislatures don’t usually make preferences into rights: first, because there are competing industries with competing preferences (the record industry’s preference against home taping was opposed by Panasonic’s preference for making home taping decks); and second, because business preferences are universally aimed at higher margins on their products – forcing voters to pay more for the stuff they use (lawmakers can’t get elected without campaign contributions, but even more, they can’t get elected without votes).
But DMCA 1201 allows for the easy conversion of preferences to rights, without any new laws being passed. All a company has to do is design its system so that its preferences are enforced by digital locks that also control access to copyrighted works (for example, a lock that prevents you from dumping your NES Classic’s ROM). The thing you’re trying to do (add your own legally purchased games to your NES Classic) is legal, but breaking the lock in order to do it is very, very illegal – and so your legal right is erased.
That’s why we’re seeing DRM in printer ink and car engines and tractors and insulin pumps and thermostats: it’s a way for the makers of low-margin hardware to establish a monopoly on service, parts, consumables, and software, at their expense of their customers and their competitors – a monopoly that taxpayers will pay to enforce, through the courts.
Which is why hackers are posting arcane HOWTOs instead of founding companies that sell tiny, Raspberry Pi-based dongles for $10 that you plug into your NES Classic, feed your games to, and unplug, for a seamless, zipless conversion from a closed platform to an open one. Individual hackers may be anonymous or risk-tolerant or ignorant enough to post their instructions, but no one is going to give them the capital to start a business to do it.
That means that you, the owner of media locked up by DMCA 1201, don’t get to buy that easy-to-use product to get more value out of your stuff: instead, you either take what the manufacturer has given you, or risk bricking your gadgets (a legal jailbreaking device might also brick your NES Classic, but in that case, you’d have someone to sue over it).
The NES Classic is a particularly interesting example, because the US Copyright Office has actually granted an exemption to DMCA 1201 for jailbreaking games (the Internet Archive petitioned for this as part of its games preservation work). But the exemption doesn’t cover tools for jailbreaking, including instructions about how to do it, and it doesn’t cover the games consoles on which the games play. Meaning that you have the legal right to jailbreak your old cartridges so you can play them on your NES Classic, and you have the right to load them onto your NES Classic once you’ve jailbroken them – but you don’t have the right to jailbreak your NES Classic to accomplish this, and no one has the right to tell you how to do any of this stuff or give you a program or gadget to make it easy.
The same law that lets Apple decide who can make software for your Iphone allows Google to decide who can make software for your Nest thermostat allows GM to decide who can diagnose and fix your car allows Nintendo to decide who can improve your NES Classic – add a vision system and it would allow Kitchenaid to decide who can make bread for your toaster; add an RFID and it would allow Bosch to decide who can make dishes for your dishwasher.
