DMCA only applies to the United States. It practically has no meaning elsewhere (I don't know the modder nationality, but the modder claims he/she has a PAL Nintendo console (european version)).
While the nationality of the user is definitely questionable, there is no longer such a thing as a PAL or NTSC Switch, only first (easily exploitable) and second (much harder to exploit, has a longer battery life) generation Switches (and the Lite). In this case, my personal reading on this is that an American that tries to invoke "I do not violate DMCA because I bought this at another country", which is laughable if you are still in USA. Note that I despise DMCA as much as you are, but if you are in USA it still exists.
Edit: America to USA. However, Americans (as in people from the US) should note that there are similar provisions throughout Americas (especially Mexico and Brazil).
Sorry. With nationality I meant where the modder is located. The modder talks about an "european 3ds"[1]. I assumed the person was located in Europe (there is a related document in that thread called "belgian waffle").
The DMCA will still have effect for example, if the modder is in Germany and hosts their cracks on Github. A DMCA takedown can be sent to Github to take down the crack. The modder should be untouchable by American authorities (directly).
If the crack is hosted in a (for example) Swedish server, then the DMCA is no valid (only at the server owner discretion).
DMCA doesn't forbid you to crack the console, but to release the tools to circumvent a security measure. You can brag all what you want on internet about a crack you've made, but the moment you publish even a clue on how to crack something, a DMCA can be sent to either put down the info from a website or to make you to desist (only if either you and/or the server are located, or have business, in the United States).
Good points, this would be out-of-scope of DMCA. However, I don't know if the modder would not be prosecutable under IP laws (violation of copyright) since interoperability seems non-existent (not building a 3DS clone or emulator) and Nintendo has done their due diligence on marketing it as a limited game console, not a general-purpose computer.
Just dropping by here with no context (just browsing comments). Buy I want to point out another fact about EU regulations. It is completely legal to reverse engineer software here.
Might apply, might not apply here. IANAL and I have not read the article :)
I understand it is legal, but I also understand that it has restrictions: mainly that it is legal only if the reason to reverse engineer something it must be on an interoperability or essential maintenance basis. I am not sure if "modding" beyond bug-fixing is legal in this situation (considering the time period).
Good point, edited America to USA. However, Americans (as in people from the US) should note that there are similar provisions throughout Americas (especially Mexico and Brazil).
