Homebrew FAQ: Is freeShop legal?

[The Catboy]

Disclaimer!​

I don't normally add tags like to a thread, but I feel it's necessary for the subtopic I have to include to eliminate the rumors around TheCruel's situation. What happened to him has no connection to freeShop nor any of his other projects. However not including this detail would be a disservice to freeShop. That being said, this is not the topic to talk about TheCruel nor his crimes. Any further comments must be post in the separate thread made for that topic. Any and all comments related to his crimes will be treated as off topic and reported. If that thread is locked and or removed, that does not open the door to bring the conversation to this thread. This will be the only warning I will give.
Right! We all good now?

So one of the most common questions when addressing freeShop is, is it legal? Does freeShop itself violate any actual copyright laws?

Spoiler: TL: DR version

It's legal

Long version for the nerds
So is it legal? This question really depends on what you mean by "legal?" Homebrew legality itself is really subjective to different countries and their copyright laws. Technically in the US hacking your system is actually in violation of the DMCA, even if it's a never enforced policy. But that doesn't answer the question is freeShop itself a legal homebrew? And the simple answer is actually yes. FreeShop is based on free and open source software no longer containing any of Nintendo's code (turns out 3DS bootsplash wasn't a default feature of launching applications on the 3DS ¯\_(ツ)_/¯.) Being that it contains no actual copyrighted code, it doesn't violate any actual copyright laws. FreeShop did run into some legal issues when it turned out the 3DS bootsplash was actually copyrighted code and included without legal permission from Nintendo. This resulted in freeShop getting a DMCA takedown noticed and the repos being pulled from github with the following noticed posted in regards to reason for the takedown.

Are you the copyright owner or authorized to act on the copyright owner's behalf?
Yes, we are authorized to act on Nintendo of America Inc.'s behalf.

What work was allegedly infringed? If possible, please provide a URL:
The freeShop application provided at https://github.com/Cruel/freeShop/releases infringes Nintendo's copyrights, because the application circumvents Nintendo's technological protection measures in violation of the Digital Millennium Copyright Act. Nintendo encrypts the game files available from its eShop servers to prevent users from accessing those files without paying for them. Nintendo believes the freeShop application circumvents Nintendo's protection measures by decrypting the game files accessible from its eShop servers, allowing freeShop users to access and play Nintendo's eShop games for free.

The freeShop application also contains unauthorized copies of the Nintendo 3DS Logo Data file, covered by U.S. Copyright Reg. No. PA0001781880, which further infringes Nintendo's rights.

In addition, the files located at the links below violate the GitHub Terms of Service by facilitating the theft of Nintendo's games from its eShop servers, and the use of these files with a Nintendo 3DS device violates the user's obligations under Nintendo's end-user license agreement.

So does this actually make freeShop illegal? The answer isn't so black and white, but let me breakdown the notice. The DMCA notice does indeed target the potential piracy uses for freeShop, but that's not completely the reason why it was taken down nor does that make it illegal. Arguing that potential piracy uses makes something inherently illegal only opens the door to arguing that every single web browser, download manager, torrent downloader, usenet, etc. are all inherently illegal as well. Each and every one of these tools can be used to illegal piracy and or circumventing security systems. Which is also why Nintendo actually removed it for the copyrighted code it contained. The 3DS bootsplash is indeed Nintendo's own code and was included without legal permission from Nintendo, straight from the takedown notice

Is the work licensed under an open source license? If so, which open source license? Are the allegedly infringing files being used under the open source license, or are they in violation of the license?
Nintendo's copyrighted work is not licensed under an open source license.

With that said, the bootsplash was indeed included unethically and Nintendo had the right to remove the repo for that reason. But this also meant that simply removing the bootsplash completely resolved Nintendo's legal grievances with freeShop. This doesn't mean it resolved the piracy fears from Nintendo, but at the same time Nintendo would have prove that freeShop was made and distributed with piracy in mind.

But isn't freeShop intended for piracy? Nope, in fact right from the description of freeShop

What is freeShop? It's an open-source homebrew eShop alternative for the Nintendo 3DS. It allows you to browse and install titles you own utilizing title keys.

Now once again this does actually get into some legal grey areas. Technically backing up your own games (or in this case tickets) has always been a bit of a legal kerfuffle, but ultimately has never been declared outright illegal. Nintendo is required to actually go to court to determine if the actions of freeShop actually violate the laws or not. Until a courtroom outright says, "freeShop's actions are for piracy only and thus illegal," freeShop remains legal. Nintendo presented the actual copyright for the 3DS bootsplash, but failed to provide piracy laws were broken. This is also why it was worded as

Nintendo believes the freeShop application circumvents Nintendo's protection measures by decrypting the game files accessible from its eShop servers, allowing freeShop users to access and play Nintendo's eShop games for free.

Note that Nintendo only "believes" that it can be used for piracy, which actually isn't a solid argument nor holds no real legal weight. This would have to be a matter settled in court, which as of this current time has not happened.

But doesn't the name "freeShop" imply piracy?
The original dev never said the real meaning behind the name. It could "free" as in the GNU stance of free and open source software or it could "free" as in "free games." We honestly don't know because it was never outright stated by the original dev.

TheCruel got arrested! Does this have anything do with freeShop and am I safe?!?
This is a topic I can't avoid, but I am going to do my best to distance his real crimes from the speculations. First, you can read about his crimes here and like I said at the start of the thread, keep it to that thread. Now to answer the question, did freeShop have anything to do with his arrest? And the answer is just a flat NO! His case dates back to 2012, long before he became part of the 3DS scene. Outside of the DMCA takedown notice, freeShop has not been under any other form of legal issues as they had removed the offending content. There is no connection between his crimes and freeShop. Proof being that freeShop's original source code is still available and since his arrest freeShop has been forked. Downloading, forking, and using freeShop will not get you under any form of legal troubles. Nintendo will not go after you for using freeShop as it would be a complete witch hunt on their end to do so. This doesn't matter how you are using it, the likelihood of facing legal charges are slimmer than winning the lottery.


So in closing, is freeShop legal? Mostly, the code is legal and accessing Nintendo's servers despite being frowned upon isn't completely illegal. Are you safe using it? For the most part, yes, it's extremely unlikely you will face legal charges unless you do something stupid. By stupid I mean like walking up to a Nintendo executive and being like, "LOOK AT ALL MY PIRATED GAMES! LOOK AT ME PIRATING GAMES!" Does it have anything to do with TheCruel's arrest? Nope, stop asking and stop spreading rumors. Was there a point to this thread? Yes, because legal stuff!

 

[Deleted User]

This will hopefully put an end to all of the legality questions involving freeShop, huge props to you.

 

[pixelmasher]

IANAL, but I believe making backup is legal. The copyright owner just not want that. Breaking security to make that copy would be DMCA violation.

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

https://www.law.cornell.edu/uscode/text/17/117

 

[The Catboy]

IANAL, but I believe making backup is legal. The copyright owner just not want that. Breaking security to make that copy would be DMCA violation.

https://www.law.cornell.edu/uscode/text/17/117

It's basically why I put "grey" because on one hand, it's legal to make your own backup on the other hand, DMCA says cracking isn't legal.

 

[proflayton123]

Would sharing your said backup be considered illegal also? With other people than yourself

 

[The Catboy]

Would sharing your said backup be considered illegal also? With other people than yourself

That is completely illegal to share your personal backups.

--------------------- MERGED ---------------------------

IANAL, but I believe making backup is legal. The copyright owner just not want that. Breaking security to make that copy would be DMCA violation.

https://www.law.cornell.edu/uscode/text/17/117

But I forgot to add that though not everything involved can be deemed completely legal, this less about those and more about answering the question of "is freeShop itself legal." Of course not everything around it is completely legal, but that's kind of the nature of homebrew itself. Often walking a tightrope of legality.
In all technicality, installing Homebrew launcher is technically a violation to the DMCA.

 

[BARNWEY]

Well, now I have something to point to whenever people ask questions about FreeShop. Thank you @Crystal the Glaceon for making this!

 

[arc13]

Thanks for making this thread, it will be added like I said in my thread in a bold red blue, if it's red it's not really a link , it's really complete and I hope that freeShop users will not be worried anymore by legal uses of this software.

Oh and, the best part:

By stupid I mean like walking up to a Nintendo executive and being like, "LOOK AT ALL MY PIRATED GAMES! LOOK AT ME PIRATING GAMES!"

 

[arc13]

-snip-
freeShop is designed to use title keys you own (it's even wrote in the OP, in my thread and in the original thread, and in freeshop.pw...), this is why it's considered as legal, after that I'm not responsible if people use it to download games they don't own.

 

[ov3rkill]

On one hand, freeshop by itself is a legal homebrew. On the other hand, how the users used it is the grey area of legality. If you use it to download games you don't own, then that's obviously illegal because it's piracy. If you used it using your own title keys or games you bought, then it's definitely legal. Then again, most people who used this homebrew obviously uses it download games for free.

 

[NexoCube]

freeShop is designed to use title keys you own (it's even wrote in the OP, in my thread and in the original thread, and in freeshop.pw...), this is why it's considered as legal, after that I'm not responsible if people use it to download games they don't own.

Yup, i know, Cruel and you made a great job here, but i'm not going to lie, but i only use it to get some games i don't own because i'm a prick
And yeah, you should add a notice when laucnhing the app so people know you haven't made this homebrew for illegal usage.

 

[The Catboy]

On one hand, freeshop by itself is a legal homebrew. On the other hand, how the users used it is the grey area of legality. If you use it to download games you don't own, then that's obviously illegal because it's piracy. If you used it using your own title keys or games you bought, then it's definitely legal. Then again, most people who used this homebrew obviously uses it download games for free.

That's actually the entire point of this thread. To explain that freeShop itself, the homebrew, is legal. Then explaining how it's legal.
FreeShop is just like a torrent downloader. Just because it can be used for something illegal, doesn't make it illegal.

Yup, i know, Cruel and you made a great job here, but i'm not going to lie, but i only use it to get some games i don't own because i'm a prick
And yeah, you should add a notice when laucnhing the app so people know you haven't made this homebrew for illegal usage.

I know it's a wall of text, but I do go into great details why freeShop itself is legal. I am referring to the homebrew itself. How it is used is a completely different topic.
Again, refer to my torrent downloader example.

 

[SoslanVanWieren]

it allows piracy though and some flashcards are illegal in some countries due to that.

 

[The Catboy]

it allows piracy though and some flashcards are illegal in some countries due to that.

Read the wall of text.
Torrent download argument though. qBittorrent allows me to pirate software without question or regulation, but that does not make qBittorrent an illegal piece of software. The same thing applies for freeShop.
I went into great detail for reason.

 

[Deleted User]

Everything is legal as long as you own the downloaded content.

 

[SoslanVanWieren]

Do you remember mega upload it got shut down because people uploaded pirated stuff to it even though you could use it legally even if some things legal they will go after your program if most people use it for piracy because its the only way to stop the pirates since so many people do it

 

[Deleted User]

Do you remember mega upload it got shut down because people uploaded pirated stuff to it even though you could use it legally even if some things legal they will go after your program if most people use it for piracy

Nope. It got shutdown because it didn't pay employees, purchased himself alot of stuff instead of paying servers and for profiting off warez content.

 

[The Catboy]

Do you remember mega upload it got shut down because people uploaded pirated stuff to it even though you could use it legally even if some things legal they will go after your program if most people use it for piracy because its the only way to stop the pirates since so many people do it

Actually it was shutdown for ignoring takedown requests, not paying employees, and profiting off their illegal content.. That is not the case here as freeShop does not provide illegal keys, does not explain, endorse, or even suggest the use of illegal keys. FreeShop is intended for you to use your keys that you dumped. If you choose to use illegal keys, it's not freeShop's fault and does not make freeShop illegal.
Again, this would be like calling Firefox "illegal" because I can use it to visit that iso site and download me some games.
Please actually read the OP

 

[SoslanVanWieren]

Well it downloads stuff from Nintendo's server without their permission only the eshops meant to access it

 

[Deleted User]

Well it downloads stuff Nintendo's server without their permission

It's Nintendo's fault for not securing their eShop server to not allow downloads from other sources.