The ambiguity of the MOD chip and pirate cultural production ...

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Mixed messages: The ambiguity of the MOD chip and pirate cultural production for the Nintendo DS

Casey O’DonnellMichigan State University, USA

AbstractThis essay1 examines the ambiguous character of videogame console modification chips (MOD chips) in the space of videogame piracy. While it is possible for these chips to be used to “pirate” versions of games for these devices, they also expand the utility of the devices by adding capabilities. Perhaps more significantly, MOD chips also enable users to create software and videogames that run on these consoles outside the typical rules and regulations of the videogame industry. Ethnographic work amongst Nintendo DS (“dual screen”) MOD communities is examined to illuminate this understudied space of cultural production.

KeywordsCultural production, ethnography, game development, homebrew, MOD chip, Nintendo DS, piracy, STS

Introduction

It would seem that pirate cultures abound, yet not all piracy is created equally. In fact, there is a realm of piracy that often goes unexamined when analysts turn their lenses to user spaces surrounding piracy. Predominant narratives concerning the motivations for pirating have emerged around the high cost of media, transnational disproportions of wealth, taxation rates and numerous others (Quiring et al., 2008). Indeed, there are even critiques of information distribution and the very nature of informational cultural goods

Corresponding author:Casey O’Donnell, Department of Telecommunication, Information Studies and Media, Michigan State University, East Lansing, MI 48824, USA. Email: [email protected]

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occurring in some pirate communities (Caraway, 2012) as well as those that position themselves as downright “subversive” (Kiriya, 2012). For others, pirate communities remain enmeshed in conversations about individual rights in relation to corporate inter-ests and how those intersect with broader political–economic interests (Chew, 2011; Ernkvist and Ström, 2008).

For most, the relationship between users of media and those who produce it remains relatively static. There are those who consume (either as pirates or otherwise) and those who produce. Yet, another, often less vocal community exists, at the margins of piracy – that of the amateur content creator often referred to vernacularly amongst game devel-opers as homebrew developers. This realm of content creation lies outside traditional media relationships and the institutionalized and highly patrolled set of rules surrounding the production of media. The homebrew community has a shared history with those in “MOD” (modification) and “hacker” communities.

This essay turns to the case of the Nintendo DS and the R4 and DS-TT MOD2 car-tridges produced for the Nintendo DS, as a critical, technological junction for these con-versations. The R4 and DS-TT have been targeted by Nintendo as devices used solely by pirates of game content. They have pursued legal and extra-legal action with law enforce-ment agencies to remove these devices from the market. Portions of ethnographic partici-pant observation amongst professional, amateur and hobbyist game developers over more than five years is drawn upon to illuminate an alternative perspective on pirate cultures.

Empirically, the work spans both the offline worlds of traditional game developers as well as those of online homebrew game developers. Methodologically, the work begins rooted in the more customary participant observation of an anthropologist working amongst traditional game developers. However, the story of homebrewers shifted from the more conventional fieldsite to the online forums and wikis more heavily relied upon by homebrew game developers.

The essay examines the cultural logics that motivate the homebrew community and their relationship to MOD and hacker communities. Further, it questions how Nintendo has mobilized, with significant success, different countries’ legal systems to curtail the distribution of devices that these communities depend on. The essay begins by examin-ing the rise and state of homebrew game developers working with the Nintendo DS. The essay then turns to a series of government raids on MOD chip distributors in the United States, which lead to further fragmentation and self-policing amongst homebrewers in an effort to distinguish homebrewing from piracy. The essay turns to the ambiguity that homebrew offers more broadly for the videogame industry. Finally, the essay examines the productive ambiguity and symbiotic relationship between piracy and unauthorized homebrew game development and the reframing of their activities as jailbreaking.

Analytically, the essay draws on Gramsci’s notion of hegemony, as a dialectic of coer-cion and consent (Gramsci, 1975). This is further informed by Law’s version of actor-network theory – heterogeneous engineering – as a means to understand how technology and material culture fit into broader systems of network disciplining (Law, 1989). To make sense of the role of corporations and the state apparatus in this system, I turn to Brown’s (1995) work on power and freedom and Smith’s (1999) work on how the local is coordinated by the extra-local in ruling relations.



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According to Law’s account of actor-networks, there is “always some degree of diver-gence between what the elements of a network would do if left to their own devices and what they are obliged, encouraged, or forced to do” (1989: 114). Actor-networks, thus, need to be disciplined or encouraged to function in particular ways. The coercion of actor-networks, in some cases, is the disciplining of human elements of actor-networks. Brown’s explicit calling out of the extra-legal – the sometimes violent, coercive power of the state – is felt explicitly in these cases. At other times the coercion of networks occurs through ruling relations, which “are, ontologically fields of socially organized activity”, which “[p]eople enter and participate in through reading/watching/operating/writing/drawing texts” (Smith, 1999: 75).

Stumbling on homebrew

This research began at the heart of the videogame industry. In late 2006 I was in the mid-dle of an ethnographic project with a “triple-a” (AAA) game development team working on a large venture for the Sony Playstation 2 (PS2), Nintendo Wii (Wii) and Sony Playstation Portable (PSP). The bulk of the game developers at the studio were rapidly ramping up to full production on a large project.3 Some fatigue had set in amongst the workers across the studio. Yet excitement surrounded a small project, called simply, Mixed Messages. This game had been created for the Nintendo DS (DS) by a team of three developers in between projects. The team, a single designer, a programmer and an artist, had developed a game based on the idea of the children’s game telephone, where a message is passed from friend to friend and hilarity ensues when you compare the start-ing message to the one at the end.

In the case of Mixed Messages, however, the game began with one person selecting the number of rounds. They then typed a message, via the DS’s touch/stylus-sensitive screen, and closed the lid of the DS. The device was then passed to another player. Upon looking at the top screen of the DS, the player would see the typed statement of the previ-ous player. Additionally, a space to draw a visual representation of that statement was presented on the lower portion of the screen. Once completed, the lid on the DS was again closed and passed to another player. The process alternated between textual and graphical options for players. When the specified number of rounds was complete, play-ers could only then see the initial form of the message and its concluding transformation. Further, the device would automatically upload the exchanges to a small web server where those who knew where to look could later peruse them.

The prototype captured the hearts of developers at the studio. It made appearances at the frequent weekend gatherings of game developers. The prototype was well received by Nintendo’s executive producer assigned to the studio, who visited later that year. It seemed the project would eventually make its way into production (as it was a pre- production prototype). Yet, as my fieldwork continued, it quickly became clear that the publisher that owned the studio was unsure how to handle the project, in particular, from a marketing perspective. As the project languished, the development team worried that the game would disappear completely. When I inquired with developers about the pro-ject, the engineer mentioned that he had recently spent several days porting the project from Nintendo’s standard software development kit to a homebrew one. His thought was




that if Nintendo dismissed the project, this would allow them a way to release it to the gaming community.

This was the first that I had ever heard of game production for the DS outside of Nintendo’s highly policed licensing structures for development kits and software devel-opment kits (O’Donnell, 2011). To elaborate, game development studios lease hardware and software systems, for example from Nintendo, in order to work with the specialized hardware and software of specific game console systems. Heretofore I was blithely una-ware of the existence of homebrew communities. Thus, with a handful of leads offered by the engineer of Mixed Messages, I began a foray into the liminal communities of homebrew game developers targeting the DS.

During this work, much like my informants working to port their game to homebrew tools, I was a lurker: I watched and read the posts of those working with the tools and the conversations that occurred on these homebrew community sites. I contacted a handful of active board members via the forum’s private messaging system. The majority of those contacted ignored my messages, while a handful were more than willing to discuss their work. The messages between willing board members, the posts on the forums as well as the content on the sites hosting the homebrew tools, were coded for themes and rhetorical tropes, which positioned individuals with regard to their attitudes towards the legality or illegality of homebrew game development, emulation, and the policing of MOD chip sales across the globe.

The rise of DS homebrew

Homebrew development is game or software development for devices like the Nintendo DS (NDS), Microsoft Xbox 360 (360), Sony Playstation Portable (PSP), Sony Playstation 3 (PS3) or Nintendo Wii (Wii) that falls outside the typical frameworks of game produc-tion. These devices have significant numbers of security devices in place to prevent the distribution of unauthorized (or pirate) software. Game consoles are covered by a signifi-cant number of user end license agreements aimed at structuring the proper use of the devices by users. The extensive legalese demands that devices be used in very particular ways and that users/consumers are not allowed to install unapproved software. However, there is slippage in this language, which is of interest to this project. I have argued in other essays that this ambiguity between content production/creation and content distri-bution has significant implications and is historically situated.4 These devices prohibit the execution of unauthorized applications – games or otherwise – therefore it is impos-sible to run independently or personally produced software on these devices.

Each of these devices is a very capable hardware platform; as such, hobbyists have become interested in repurposing them to perform as media players, email clients, web browsers, and even as general computers running operating systems like Linux.5 However, without breaking the authorization systems of these devices, this is impossible. Rather than discouraging the activity, it has only resulted in the creation of small com-munities working to enable the production of independent software and games for these devices. Due to the restrictions of the Digital Millennium Copyright Act (DMCA), the distribution of any means of copy protection circumvention is prohibited (DMCA, 1998). While special exemptions are made to the Act every three years, including mobile phone



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jailbreaking, the circumvention of these mechanisms on game consoles is still prohibited (Billington, 2010). Jailbreaking can be loosely understood as a set of steps for altering or removing the restrictions placed on a device that make a user unable to make changes to or install unauthorized software on a device. Technologically, there is no computational difference between jailbreaking a phone and the use of a hardware or software modifica-tion of a game console to allow the installation of independently produced software and videogames (other than the hardware/software distinction).

Much like other media industries, the videogame industry has made extensive use of the DMCA and Digital Rights Management (DRM) systems to further control and under-stand how users consume content (Baruh, 2007). However, users contest DRM much less in the context of videogame consoles. While many users originally protested device lock-in via DRM on mobile music devices, similar uproar was never present for console game systems. In part this was because the devices were in many cases quite different from one another. The underlying platform (Gillespie, 2010) of each game console was at one time extremely different; however, this is now only marginally the case as console platforms have reached a certain maturity. While differences remain, greater similarities are found between each device, and games are often produced for each distinct device, despite their differences.

The NDS rose quickly to prominence amongst homebrew developers for several rea-sons. One is simply the variety of available hardware capabilities of the device; including a 2D and 3D graphics processor, one-touch-sensitive LCD and another standard LCD. In addition to its touch-sensitive screen and standard set of console control buttons, a micro-phone is also available. Further, the NDS features built-in wifi for connectivity and vir-tual surround sound speakers. However, at the same time, its relatively limited internal memory presents a compelling challenge to developers.

The majority of homebrew development focuses on the low-level capabilities of the device. Homebrew developers do not have access to the significant number of proprie-tary software development libraries and utilities that have been developed by Nintendo, which are distributed with the development hardware. This set of libraries, hardware, and documentation is referred to as the NDS “Nitro” Software Development Kit (SDK). Homebrew SDKs for the NDS do not attempt to duplicate the Nitro SDK, but rather make available the capabilities of the device to a community that has more generalized familiarity with the C programming language (Noland et al., 2011).

While there are a handful of SDKs and other tools or engines for the NDS, the most active sites for NDS homebrew development surrounds Libnds6 and software that makes direct use of those libraries. Libnds is responsible for all of the low-level abstractions that most developers depend upon to bring games to life. Put another way, homebrew developers have had to create their own interfaces to the underlying hardware of the NDS with other developers in mind.

As indicated in the quote below, developers within the videogame industry continue to point to the DS as an exemplary game console that development teams should be exposed to early in their professional development. The NDS places a certain set of limi-tations on engineers and artists, while simultaneously providing an interesting set of capabilities to designers. It is for these very same reasons that homebrew developers approach the device. For as little as $150 for the NDS and another $30–50 for the MOD




cartridge, a would-be developer can be on her/his way, supported by a community of developers also curious about creating content for the device.

While there are a few nooks on the DS that aren’t documented, they weren’t things I cared about, so to me it was almost perfect. It is a shame that homebrew development can’t be officially sanctioned and supported, because it would be a wonderful platform for a modern generation of programmers to be able to get a real feel for low-level design work, to be contrasted with the high-level web and application work that so many entry-level people start with. (Harris, 2007)

Of course, for the same price, a pirator can acquire an NDS MOD cartridge and begin downloading NDS ROM (read-only memory) files from a range of locations on the inter-net. These files are actually binary dumps of what exists on the cartridge of an NDS game. Ambiguity is created when it becomes difficult to distinguish between indepen-dently produced or hobbyist content and material that has been illegally downloaded and installed on the device. This ambiguity is sensed in the statements of the librarian of congress in his findings:

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. (Billington, 2010: 2)

However, these activities are enabled only on wireless telephone devices. Similar allowances are not made for other devices, despite the murky line that now distinguishes smartphones from computers and either of those devices from videogame consoles. Because of this wording, the videogame industry has managed to keep the jailbreaking or MODing of game consoles classified as illegal under the DMCA. Because of this, significant time and engineering has been spent by companies like Apple and Google’s Android team to create “code-signing” systems that distinguish between authorized soft-ware and those produced outside traditional means.

Ironically, due to the high cost of Nintendo’s official developer kits (DevKits), many officially licensed game development studios use the R4 and DS-TT cartridges as a means to supplement the official hardware. In many cases, these cartridges are easier and faster for developers to work with late in the development cycle of a game where content production and testing are on the rise.

It would be reasonable to assume that this activity, of creating technologies that in effect jailbreak game consoles, has been combatted in ways similar to Apple’s ambiva-lence about jailbreaking. This could not be further from the truth. The videogame indus-try has partnered closely with the United States’ Office of Immigration and Customs Enforcement (ICE) to put some teeth into their retaliations.

ICE raids

In August of 2007, in collaboration with 22 different ICE offices throughout the United States, 32 search warrants were executed simultaneously in 16 states.7



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The search warrants were executed at businesses, storefronts, and residences located in California, Florida, Hawaii, Idaho, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, and Wisconsin at locations associated with subjects who are allegedly involved in the direct importation, installation, sale, and distribution of the devices that are of foreign manufacture and smuggled into the United States.

The modification chips and circumvention devices allow users to play illegally obtained, pirated and/or counterfeit software on video game consoles including Sony’s Playstation 2, Microsoft’s XBOX and XBOX 360, and Nintendo’s Wii. Modification chips and swap discs for gaming consoles violate laws under the Digital Millennium Copyright Act of 1998 (DMCA). According to the Entertainment Software Association (ESA), the makers of the gaming consoles, game developers, and others in the industry have incurred billions of dollars in losses worldwide due to sales lost to those selling counterfeit and pirated video games. (ICE, 2007)

While these raids seized unauthorized reproductions of games – literally pirated soft-ware – the primary goal was the confiscation of the modification chips and circumven-tion devices; the very same devices that ostensibly do the same thing as software that jailbreaks a wireless telephone. Thus, the videogame industry and the Entertainment Software Association (ESA) were successful in executing extra-legal activities through their collaboration with US government agencies.8 Conflict and domination are not fre-quently included in discussions of technological development, and particularly not what some have referred to as “The Prerogative Dimension of the State … The state’s ‘legiti-mate’ arbitrary aspect: extralegal, adventurous, and violent”, (Brown, 1995: 186).

This active approach of raiding individual’s homes is quite different from the domi-nant and pervasive method of “effective frustration”, which encourages users to follow the rules by making undesired activities difficult. Effective frustration comes from the DVD Copy Control Association’s documents surrounding the Content Scramble System (CSS) encryption algorithm used on DVD disks. This approach uses agree-ments between manufacturers and software designers to enforce copyright rules. Licenses obligate anyone with privileged information about a copyright protection mechanism to make it difficult for users or consumers to obtain this information from the technologies they create (Gillespie, 2006).

Even “educational” anti-piracy campaigns, which attempt to provide young children with a particular understanding of piracy, property and creativity (Yar, 2008), fall into a very different kind of campaign. The ICE raids are a massive departure from the majority of anti-piracy campaigns mobilized by creative industries. ICE and the ESA deployed a highly coercive strategy meant to strike fear into the hearts of would-be pirates. Perhaps unsurprisingly, oftentimes, actions like these mobilize a kind of counter militantism amongst the homebrew game development community. It positions devices’ manufactur-ers as opposition to many people who, given the opportunity and skills, are interested in working in the videogame industry.

Science and technology studies scholars have long noted that there is a link between the “passage from the microscopic to the macroscopic”, or the means by which “social structures” are taken into account and are in need of attention (Latour, 1991: 118). These cross-state, simultaneous, coordinated raids on individuals mobilized by




corporations represent a new level of technological police state that is worthy of greater scrutiny. Other scholars have noted that the disciplining of technological actor-networks is crucial to their functionality. Most explicitly, when “[e]lements in the network prove difficult to tame or difficult to hold in place. Vigilance and surveillance will have to be maintained” (Law, 1989: 114). Yet, in this case, we are seeing vigilance in the form of the barrel of a gun, somewhat different from how actor-networks are often discussed.9 This is where the extra-legal, or “adventurous”, aspect of the state is mobilized. It is the pre-rogative dimension of the state – its capacity for legitimated violence is exercised to discipline actor-networks (Brown, 1995: 186).

Thus, these raids enact a very particular kind of policing of the proper use of technol-ogy, despite the ambiguity that surrounds these devices. For obvious reasons, these kinds of actions have created a schism in the communities surrounding homebrew game devel-opment. In these cases, it is more diffuse, as can be seen in what follows, through the more complexly negotiated mediated experiences that homebrewers engage in within online discussion spaces. It is through the fields of ruling relations that “hyper-realities can be operated and acted in rather than merely written and read” (Smith, 1999: 84).

Pirates vs. homebrewers

One of the first distinctions made by the websites that surround homebrew development is a disclaimer, something along the lines of the one below by one of the developers working on the Object-oriented Simple DirectMedia Layer (OSDL) library for the NDS:

The goal here is to develop applications, mostly games, to be run on the Nintendo DS, from the hobbyist point of view, as opposed to a software/game production company. This kind of development is called homebrew.

We do not support piracy or the illegal use of the copyrighted Nintendo SDK by non-licensed developers. We use here unofficial development kits, such as devkitPro. These coding efforts are to remain free and legal. (OSDL, 2008)

This argument makes a clear distinction between content creation or development, and piracy or redistribution of Nintendo’s official software development kits to un-licensed game developers. Members are unofficial and outside the boundaries of those they cast as pirates. However, these same communities of game developers, and they are largely software engineers, have formed together to create and support software that is fundamental to developing homebrew games for these devices. At the same time, these projects are completely dependent on technologies, processes and hardware/software glitches that make it possible for them to load their software onto these devices in the first place. Literally, without a demand for piracy, these communities could not exist without technologies that circumvent the protective mechanisms of the devices.

In other cases, developers make a more articulate critique of why they have been put in a position where breaking the rules of the DMCA makes logical sense. They frame the argument in a kind of market logic. In a sense, they argue, Nintendo’s continual lack of attention to hopeful and hobbyist game developers and tinkerers has created a demand for and means by which they can create software. Put another way, if Nintendo were



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more actively engaging the hobbyist and independent communities10 the problem would not be murky at all, and it would be clear that those people seeking MOD chips were not interested only in piracy.

The point of homebrew is to allow programmers who want to develop something for the Wii [or the DS or the PSP] to have the chance… Frankly, as much as I love Nintendo, the fact that they make it impossible for people to program for the Wii without having a company of X size, Y wealth, and Z experience created the need for the homebrew channel. [Informant “Kira” via Forum Post, 2009]

At the same time, even if the majority of developers were satisfied with the capabili-ties provided by an official set of development tools, some might still find them too restrictive. The fact remains that these devices remain situated in larger corporate net-works connected with brand images that must be maintained.

In the case of NDS homebrew, there are individuals interested only in acquiring the requisite ROM files that are essentially binary dumps of game cartridges. Logically, to these devices, there is no difference between an official ROM and an unofficial one. This quickly segues to a secondary community of developers who further cloud the distinc-tion between homebrew and piracy. Recall that engineers who often have little knowl-edge of creating games and much more experience with software development dominate these communities. Thus, rather than create games they attempt to leverage the content of others by creating emulators.

An emulator is a piece of software that emulates the hardware of another computing platform in order to run software built for those platforms. While there are many legiti-mate uses of this kind of software, it is often used to emulate old videogame console hardware in order to run older ROM cartridges. The emulator thus suffers the very same kind of ambiguity that the MOD chip itself suffers from.

Doesn’t the whole idea behind homebrew revolve around piracy? I see a bunch of topics involving emulation… Isn’t that piracy?

I don’t understand the whole Puritan approach. I guarantee that anyone who has hom[e]brew on their Wii has at least one pirated IP. [Informant ‘Horn’ via Wii Brew Forum Post, 2009]

So while this particular informant is actually misinformed, since there are very real reasons for emulation, there remain many who use it for illegal purposes. The majority of community members who discuss emulation do not own licenses to the software they wish to emulate. This kind of double ambiguity becomes a significant argument for console manufacturers to clamp down on homebrew communities that support emula-tion development. Because of this ambiguity, many of the NDS homebrew communi-ties view discussions of emulation as dangerously close to the discussion of pirated ROM files.

Well, the fact that there is a NES emulator for the GBA, I’m sure there is one for the DS. You just need to look around, and although the emulator for the DS would be considered homebrew, what you run on it would not. So you might want to search around on an emulator forum. [Informant ‘Sphinx’ via NDS HB Forum Post, 2010]




Search Google for nesDS. I think it’s stopped being developed, but it’s in a pretty good state. And that’s all I’m gonna say, because [Admin’s User ID] is watching me with his huge hawk eyes to make sure I don’t say anything about… Emulated software. [Informant ‘Scotty’ via NDS HB Forum Post, 2010]

Brand ambiguity is a secondary risk that the emulator offers console manufacturers. One of the console manufacturer’s major competitive elements in the modern videogame industry is their brand and exclusive intellectual properties. Emulation decouples the content from the devices in a way that challenges that. Users are keen to play Nintendo Entertainment System (NES) “classic” games on their Playstation Portable, Playstation 3 or Xbox 360, but it is neither in Nintendo, Sony or Microsoft’s interests to allow such activity. Even if brands were respected in this ecosystem, console makers would prefer that users purchase such a title from them again, rather than emulating the hardware and playing a ROM acquired either legitimately or illegitimately.

This stands in contrast to the kinds of communities that surround game modifications (MODs). In many cases, MOD communities are fostered by the companies that provide the tools by which to engage with a game’s underlying systems. People who MOD (MODers) are often viewed as even possible future employees as they become more adept at using the custom tools and engine of a game (Nieborg and Van der Graaf, 2008; Postigo, 2007; Sotamaa, 2010). Two distinctions seem to mark the difference. In the case of MODs, users/fans are making changes to software running on their computer and the practice is in some ways commodifiable by the company that created the original software. In the case of MOD chips, the users/fans are making changes to the hardware, in order to change the software and there is no clear economic advantage for the hardware creator.

Personal computers seem to be one of the last vestiges where hacking and hardware MODing are deemed legally and socially acceptable. Hardware hacking or “case mods” are quite common amongst gamers and PC enthusiasts. Extensive work is done to modify the case and hardware of a PC in order to shift its aesthetics (Simon, 2007). Communication technologies more generally are subject to “innovative” uses, meaning that users will put them to work in contexts they may never have been intended for. Sometimes this requires extensive hardware modifications or “hacks” in order for a user to accomplish their goals. Indeed, the very history of the word “hacker” is rooted in the history of games (Haddon, 2005). Yet, one needs only to examine how Sony has responded to recent PS3 hacking to recognize a very different use of the term (Androvich, 2007).

What separates the NDS (and the PS3) from its other modern console counterparts is that its underlying copy protection systems are written into hardware and cannot be changed. This makes it possible for developers and hardware manufacturers interested in circumventing these mechanisms to do so and not have updates in software remove the means by which they achieve their goals.

Pirate cultural production

Homebrew game development remains largely out of the frame of reference for both players of videogames and analysts of videogames or the videogame industry. However, in December of 2008, Bob’s Game created by Robert Pelloni, emerged into the video-game industry’s field of view (Ng, 2008). Pelloni had developed Bob’s Game using the



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NDS homebrew tool chain. Pelloni had released YouTube video footage of his game and a trailer, building buzz around the game. On the forum hosted on his website, further information about the game was available. He was creating a role-playing game for the NDS using the homebrew tools in the hopes that he could convince Nintendo of the game’s marketability and gain access to the tightly controlled official NDS DevKits and official “Nitro” SDK.

Pelloni had previously attempted to establish contact with Nintendo’s licensing divi-sion, WarioWorld, and their lack of response resulted in Pelloni staging a “100 day pro-test”. While his protest ended after 51 days, with none of Pelloni’s demands being met, he continued to garner attention from videogame industry news outlets. In February of 2009, Pelloni’s request was officially rejected by Nintendo’s licensing division. This resulted in renewed lashing out on the part of Pelloni, including threats by Pelloni to release his game bundled with the very MOD chips that made the development of the game possible in the first place.

While Nintendo’s official reasons for denying licensing to Pelloni fall within well-established, and largely undocumented, guidelines, the entire process created newfound awareness amongst gamers of the kind of structures that inhibit broader participation in the videogame industry. Already, videogame publishing companies find themselves under fire for publishing “controversial” content. Homebrew games, like their more acceptable and mainstream “indie game” counterparts, often push the content envelope further. These games offer gameplay, narratives and imagery outside what is typically seen in the industry. While indie games are often perceived of as innovative, artistic, and pushing the videogame industry in new directions (Martin and Deuze, 2009), homebrew development does not benefit from this perception.

The videogame industry, often viewing itself as embattled with respect to content regu-lation (Bala and Bala, 2007), more game developers outside traditional organizations seem an unwanted additional burden. At the same time, the videogame industry often argues that their products ought to be protected as free speech. Games are often argued to be art11 and thus subject to protection under the First Amendment.12 If games are to be protected as free speech, then homebrew only bolsters these claims, yet the industry’s continued desire to keep such content out of broader circulation jeopardizes such a stance.

Ultimately, it is the potential for productive capabilities, or “pirate cultural produc-tion”, that protects these communities from corporations. While the shift from hardware to software as a means of enforcing copyright protection has been a popular one amongst device manufacturers, it may ultimately be the thing that disables their ability to pursue and incarcerate those who assist others in circumventing those mechanisms. Despite all of this, most game console manufacturers will still refer to jailbreaking activities as hacking or piracy, despite the clear disconnect.

As has been noted by other scholars, scrutiny of videogame culture and cultural pro-duction in videogames can provide a productive lens through which to critically examine cultural communities in and around videogames (Shaw, 2009, 2010). At the same time, taking seriously the videogame production practice within that context is important as well. Especially when one looks to the fringes of game development, cultural production becomes more interesting. It is at these borderlands that the greatest sense of friction occurs, for it is where the coercion and consent of hegemonic process (Gramsci, 1975) are the mostly strongly perceived and experienced.




Perhaps it is the community of hackers and homebrewers that will ultimately prove to be speedbumps as cultural practices entangled with technology become increasingly leg-islated and policed (Taylor, 2005). Which isn’t to say that this space is morally righteous in its activities (Nissenbaum, 2004; Thomas, 2005). Yet, it is the fact that activities in these spaces are ambiguous that is precisely what makes them important to understand as complex and not simply legal or illegal.

The homebrew community is not disconnected from or secondary to the indie game movement. It is ancillary. It is a necessary component of it. Homebrew communities break open new technologies in ways that enable broader participation and use of those devices.13 While indie game development has managed to largely hold the world of pirates, emulation, and homebrew at arm’s length, they remain ideologically linked in their fundamental activities. Each community is interested in pirate cultural production. Each looks to make use of modern computing technologies in ways to make personal statements and offer exciting technologies to new and innovative uses.

Productive ambiguity

While for many homebrewers the ambiguity between piracy, emulation and homebrew is a point of anxiety, market demand for piracy continues to be one of the primary reasons for the existence of these devices. While console manufacturers continue their assault on the device manufacturers and distributors and rapidly transition to more flexible tech-nologies like flash-updatable firmware, this too presents a new set of ambiguities. Firmware is a set of software present on many modern computing devices that can be “flashed” or updated over time, though it resides at a lower level than the system’s oper-ating system or other software. While firmware can be updated in response to hackers in the homebrew community working to jailbreak these systems, the very fact that firmware can be updated is what makes it possible for jailbreaking to occur.

Jailbreaking presents homebrew in a different light, painting companies attempting to “lock in” users in broader systems of control, that ultimately may mean their logical exception from the very laws that now provide them the authority to mobilize the extra-legal capacity of governments. The materiality of MOD chips makes them a commodity, which can be constrained and controlled in ways that software cannot. While the transi-tion to firmware solutions allows companies to quickly update hardware to prevent the running of unauthorized software, it is just as easy for the community surrounding home-brew, emulation and piracy to update their circumvention methods.

At an accelerating pace in the twentieth century, the ruling relations come to form hyper-realities that can be operated and acted in rather than merely written and read. (Smith, 1999: 84)

Firmware represents a new approach for the videogame industry, yet at the same time it decouples it from the manufacturing of devices. ICE raids will not likely occur for those working to jailbreak videogame hardware. The removal of the manufactured device decouples homebrew from the market pressures that make MOD chips possible. Put another way, jailbreaking can more purely be pointed to as in line with the exemptions of the DMCA and abstracted away from piracy.



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This productive ambiguity may prove troublesome for the videogame industry in the near term. Unauthorized (pirate) cultural production is foundational to the argument that games are protected speech. They are crucial to the underlying argument that games are art, for these games frequently explicitly engage with broader social and political phe-nomena in ways that AAA game titles do not. The argument could be taken further, that this policing of “Read/Write” culture is precisely what is at stake in cases like those of MOD chips and jailbreaking (Fleming, 2012). Yet, the videogame industry fashioned its licensing agreements around the ability to control and authorize particular kinds of con-tent and not others (O’Donnell, 2011). These forms of control, clearly, are always under contestation by users, hackers and MODers. While in some cases those interventions are viewed positively (or at least productive) by the industry, the same mechanisms provide interfaces where control can be lost. Pirate cultural production occurs in these ambiguous spaces and while some illegal activity may take place, it is clearly inaccurate to cast all involved as taking part in such incidents. The inability of the videogame industry to com-moditize unauthorized cultural production is as much at play as is the illegal distribution of exiting copyrighted material.

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

1. This essay is based, in part, on a presentation made at the Society for the Social Studies of Science (4S) conference in the fall of 2009. That presentation was delivered along with the use of the DeSmuME NDS Emulator, running an NDS ROM file that contained the “slides” of the presentation. Also passed around the room were two NDS handhelds, one using the R4 MOD chip and the other a DS-TT MOD chip. The slide ROM was developed using the same homebrew tools as my informant’s.

2. It is important to distinguish “MOD chips” from “game MODs” made by “MODers” (Postigo, 2003). Game MODs are software add-ons that are loaded into a game engine and can range from additional content to completely new games. MOD chips, on the other hand, are techno-logical devices that are connected to a game system in such a way that it alters the functionality of the device.

3. This aspect of this ethnographic project is detailed in a full-length monograph (O’Donnell, 2014).

4. There is an interesting shift from “production protection” to “copy protection” that occurred during the time after the introduction of the Nintendo Entertainment System (NES) (O’Donnell, 2009).

5. The Sony Playstation 3 (PS3) was originally introduced with the ability to install Linux and develop games as an actual console feature. The computing power of the PS3 was itself a draw, with the United States Air Force actually purchasing 1700 PS3s, which were then loaded with the Linux Operating System and custom software developed to make use of PS3 as a relatively inexpensive computing cluster. With the release of the PS3’s version 3.21 firmware update, the ability to load and run Linux was removed from the device.

6. Libnds is a software development library, or software development kit (SDK) to support homebrew application development on the Nintendo DS. It is meant as an alternative to




the commercially available and tightly controlled Nitro SDK licensed and distributed by Nintendo. Libnds is supported by a broader community of homebrew developers centered around the site http://devkitPro.org.

7. Raids like those of ICE in the United States are an international effort. According to their own anti-piracy campaign reports, “Nintendo supported over 140 actions and investigations in the following countries: Belgium, Brazil, Bulgaria, Canada, China, the Czech Republic, France, Germany, Hong Kong, Korea, Mexico, the Netherlands, Paraguay, Taiwan, Thailand, the UK, and the US” (Cottrell, 2007).

8. It is important to note here, that the actions of the ESA, console manufacturers and large pub-lishing companies do not necessarily represent the perspectives of rank-and-file game devel-opers. For example, recent controversy in the game industry surrounding the Stop Online Piracy Act (SOPA) resulted in many game development studios calling out the ESA’s support of the bill as counter to the interests of game developers (Curtis, 2012). With regard to the seizure of devices like the R4, however, developers have largely remained silent, with only users of the devices pointing out the multiplicity of uses the devices have.

9. There is an interesting slippage in the mobilization of the extra-legal aspects of governments that I find particularly problematic. On the one hand, the videogame industry often mobilizes the rhetoric of the free market and discourages government intervention in their business activities. This is often supplemented by an appeal to the First Amendment and free speech. Yet, at the same time, the videogame industry is able to mobilize extra-legal government action on their part to discourage the emergence of devices that the market has demanded. These same activities further stifle the speech of homebrew game developers only interested in leveraging technologies for personal expression.

10. Microsoft has not taken a similar stance with the Xbox 360. Much like the Apple iPhone, hobbyist and independent developers can pay $99.00 per year to register as developers and download the development tools for these devices. In the case of Microsoft’s Xbox 360, however, the tools, called “XNA Express” or “XNA Indie” are actually different and limited compared to the tools available to licensed developers.

11. This essay is not concerned with the argument of whether or not games are “in fact” art. There has been significant work in this area and significant popular and professional press scrutiny of the issue (Gee, 2006; Kirkland, 2010).

12. As recently noted by analysts and researchers, this particular position is a difficult one for the game industry to maintain. Continual capitulation in response to criticism undermines the argument that videogames should be a critical cultural form worthy of protection under the First Amendment. This is actually what makes “art” a protected form, not that it is art, but rather that art holds the potential to make cultural and political commentary and thus is deserving of protection. As the industry currently manages their relationship with content criticism, they fall much closer to “commercial speech”, which is not protected by the First Amendment (Bogost, 2010; O’Donnell, 2010).

13. An excellent example of this is how quickly the homebrew community surrounding the Xbox 360 dissected and released open source drivers for the recently released Kinect hardware.

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Author biography

Casey O’Donnell is an Assistant Professor in the Department of Telecommunication, Information Studies and Media at Michigan State University. His research examines the creative collaborative work of videogame design and development. This research examines the cultural and collaborative dynamics that occur in both professional “AAA” organizations and formal and informal “independent” game development communities. His research has spanned game development companies from the United States to India.


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www.caseyodonnell.org/blog/2010/09/24/games-and-the-1st-amendment/

www.caseyodonnell.org/blog/2010/09/24/games-and-the-1st-amendment/


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