[scheeseman486]

This is a very hazy area, made more hazy by the main method of getting games off of a Switch being a dev mode implemented by the hardware designers at Nintendo/Nvidia that is enabled by bridging two pins on the JoyCon connector which completely bypasses the DRM. Is using hardware features as designed "breaking" DRM? Hard to make that argument when they left the door wide open, unlocked and trivial to use.

[zerocrates]

The DMCA's language is something like "circumventing an effective technological restriction," but I don't think "effective" really gets much juice. Like, despite the total brokenness of DVD CSS by now, it's still going to be "effective." On the other hand "circumvention" sweeps up conduct that just bypasses DRM rather than actually breaking it.

Edit: for accuracy, it's "circumvent a technological measure that effectively controls access" to a copyrighted work.

[danhor]

There's also an exploit in the USB stack of the boot ROM involved, so it's not quite "using it as intended". I'd argue ntrboot on 3DS is much closer to what you're suggesting, using a built-in repair access mechanism dependent on long(er) broken crypto.