Moving further in this direction, Nintendo has now sent a cease-and-desist letter to a Connecticut based U.S. company ‘Logistics Consulting LLC’ that offered to install SX devices into customers’ Switch consoles, according to Ars Technica. According to Ben Van Rheen, the founder of Logistics Consulting LLC, the company only offered a “Nintendo Switch SX CORE SX LITE Mod Chip Service” on its website for $60, which is “NOT for the purchase of the Nintendo Switch SX CORE or SX LITE mod.” The site mentioned that the company doesn’t make the mod or sell the mod, but just the installation service. However, according to the Nintendo legal team represented by U.S. based law firm Jenner & Block, the service provided by Logistics is a violation of the anti-circumvention and anti-trafficking sections of the Digital Millennium Copyright Act (DCMA). In a cease-and-desist notice dated June 12, 2020, and obtained by Ars, it points out that the service provided by Logistics requires opening the console and soldering an external component to the board, which breaches the measures of protection that Nintendo has over its hardware. “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. As you know, the SX Core and SX Lite, manufactured by Team-Xecuter, are illegal pirate modchips (or ‘circumvention devices’) that circumvent Nintendo’s Technological Measures,” writes Jenner & Block lawyer Alison Stein. The letter also outlined that Logistics was aware regarding the action taken by Nintendo against other resellers modchips in the past. Despite knowing this, Logistics continued to offer links on their site and direct customers to sites from where they could buy modchips, which according to Nintendo lawyers, proves that the company was “well aware of the unlawful nature” of their 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. Nintendo will not tolerate such baldly unlawful conduct,” Stein continues. In a statement to Ars, Nintendo of America said, “Nintendo consistently protects the creative works of game developers and publishers who expend significant time and effort to create fun experiences. 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.” After the cease-and-desist notice was issued, a representative of Logistics indicated that they have stopped offering this service. According to the page, Logistics is “currently in talks with Nintendo and their lawyers from New York.” Commenting on the situation, Van Rheen from Logistics told Ars: “[The lawyer] wouldn’t get into what law I broke, she kept referring back to the letter. 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?’ “My argument for this device’s existence is that it lets you export your saved games, whereas the regular Nintendo Switch does not. 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]. I’m not a lawyer, I’m just following logic-based arguments. “It’s not like the thing comes with all the games on it. 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’s lawyers have demanded Logistics Consulting and Van Rheen to immediately cease and desist any and all installation services for any of Nintendo’s consoles, including but not limited to installations of the SX Core and SX Lite into the Nintendo Switch, remove all references to the installation service from the Internet, or face further action. Van Rheen has been asked to respond to the demands by next Monday, June 22, 2020.
