Is it legal to jailbreak a video game console?

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We all know that pirating video games is illegal, but what about jailbreaking a video game console that you personally own?

Jailbreaking, also known as modding, hacking, or homebrewing, involves modifying your game consoles to run unofficial software. Most people associate jailbreaking with hacking because modern game consoles have firmware-level security controls that recognize and block pirated games from playing.

But if piracy involves stealing a product, you do not do clean, jailbreaking is something you do to your personal property, so that must be fine, right?

Unfortunately no. It is illegal to jailbreak your video game consoles.

Why is it illegal to jailbreak a video game console?

Many people mistakenly assume that since they own the device, they are free to do whatever they want with it.

However, under US law, as long as you own the physical hardware, you only license the code contained within the system – it is not yours to modify. For this reason, there are clear distinctions between what you can and can’t do with your gaming hardware.

For example, it is perfectly legal to physically modify your game consoles as long as what you’re doing doesn’t alter or modify the console’s firmware code or circumvent any security measures. You can dump your old PlayStation and turn it into a minicomputer, or turn your Gamecube into an ersatz handheld gaming device. Doing this on new consoles is a bit more tricky as opening the case may void your warranty, but while voiding the warranty will prevent you from qualifying for free repairs and even possible replacements covered by said warranty, this is not illegal.

What is illegal is modifying (or even accessing) the firmware and other proprietary codes present in the console’s chipset. In doing so violates the Digital Millennium Copyright Act (DMCA), and is therefore illegal. This includes using third-party tools to circumvent security protections, installing alternative operating systems, or physically modifying certain parts. It is also illegal to distribute mods or exploits that others can use.

Similar distinctions exist for physical games: you own the hardware disc, but you only have to license the code written on it. It also means that you don’t own the digital-only games you download; you are simply purchasing the license to access the software for personal use. If suddenly the code is no longer accessible, for example due to closing an online store or a company deciding to remove a game for download – there is nothing you can do about it, because your rights have expired with the license.

Some might wonder how this affects emulation, which uses software (or in some cases, third-party hardware) to run game code rather than a physical console, but that’s its own legal gray area that we’ll have to cover again.

The thing is, jailbreaking your consoles is illegal, and the distinctions between hardware ownership and firmware/software licensing give companies legal grounds for litigation, especially when it comes to piracy.

What happens if you jailbreak a console and obtain caught?

It depends.

If you install custom firmware and play pirated games or homebrew software on an actively supported system like Nintendo Switch or PlayStation 4, the most likely consequence is account ban and access revocation to all games you own on the system (as well as voided warranty). ).

However, we have seen hackers and modders arrestedforced to serve a prison sentence and issue six-figure fines to Nintendo and other companies. To be fair, these are extreme cases where the individuals weactively distribute illegal firmware hacks and/or pirated games. Jailbreaking older consoles is less likely to result in legal action or other consequences, but doing so still illegal. Yes, even your old PSP or Nintendo DS.

This, of course, assumes that users run the right firmware hacks correctly and don’t end up permanently tinkering with their devices for their problem..

Jailbreaking is not just hacking

So if jailbreaking is technically illegal – and even risky for the machine – why people do it?

Many probably assume that hacking is the primary motivation. Yes, people often jailbreak their consoles to play pirated games, but there are other reasons to install custom firmware or access console hardware level code. Many hobby game developers jailbreak their consoles to create and install their own homemade apps and games, for example.

More importantly, jailbreaking is also a means of game preservation. Video games are considered by many to be a unique artistic medium with its own history worth preserving. However, at some point, digital stores will disappear, servers will go offline, and services will be shut down, and all games available on those services may be lost forever. Nintendo, for example, recently announced that it was closure of 3DS and Wii U and V eShopsVirtual Csole shops in March 2023. Similarly, Sony is slowly closing online stores for the PlayStation 3 and PlayStation Vita.

Although you can still play games on older consoles, physical copies are hard to come by. In reality, the prices of all retro games have skyrocketed in the last few years. But if you can’t buy digital games and physical copies are rare and expensive, how are players supposed to access those older games, let alone preserve copies for historical purposes?

Thus, video game historians and archivists often rely on gray practices like emulation, homebrew, and even outright piracy, not because it’s criminals trying to “harm” giant corporations or stealing and distributing copyrighted material, but because they see value in old games and consoles that would otherwise be forgotten in the absence of a legal way to experience it.

Until major publishers are starting to take preservation seriously, there will always be someone out there to reverse engineer a console’s firmware or a game’s code so they can install patches, insert translations made by fans, or just learn how old technology works in order to keep old games playable. Yes, even though doing all of this is technically illegal.