As far as I know, the courts didn't require that Nintendo, Sega or Sony make the consoles open - they just didn't make it illegal to reverse engineer the protections.
I'm curious what cases you think actually established this precedent? Keep in mind that a court saying "reverse engineering is not copyright infringement" is not the same thing as a court saying "a hardware manufacturer is legally obligated to permit the distribution of third-party software on its hardware".
> You can already publish a game to a Switch or PlayStation without ever going through Nintendo or Sony (so long as you don't steal any copywritten assets to do so).
I don't believe this is accurate, at least not in the sense of commercially publishing a game in a physical store or on Nintendo or Sony's digital storefronts. I'm certainly not aware of any games that have been published in physical stores without the publisher having signed a publishing agreement with Nintendo or Sony.
They did put commercial unlicensed software into US retailers, without any agreement from Nintendo or Sony.
https://en.wikipedia.org/wiki/Sega_v._Accolade (1992) https://en.wikipedia.org/wiki/Lewis_Galoob_Toys,_Inc._v._Nin.... (1992)
(TL/DR: you are allowed to build and publish and sell unlicensed software for a console. You are allowed to break DRM to do this, so long as it's a clean-room reverse engineer (don't pull a TENGEN). You are allowed to do this for your own uses (sell your own games) and are allowed to do this even if that software edits other people's legally-purchased software (cheat engines / debuggers / mods / etc). You can legally do this without any license agreement from Nintendo or Sony)
This is how GameSharks/ActionReplays/etc were legally sold in every Wal*Mart / Target / Meijer / GameStop / etc in the US for a decade or more. Their boot screens all contain boot messages saying "this product is NOT licensed by Nintendo/Sega/Sony/etc" for this reason - https://nerdbacon.com/wp-content/uploads/2014/02/GS3.jpg
These are still sold, legally at retail stores like GameStop and WalMart, even today: https://www.codejunkies.com/Products/PowerSaves-Pro__EF00111... (again, still 100% unlicensed from Nintendo)
But it doesn't mean those platforms are "open", otherwise under that definition the iOS platform is "open" too because you can legally jailbreak your phone and distribute jailbroken apps. I don't think that's what people mean when they say a platform is "open".
> This is how GameSharks/ActionReplays/etc were legally sold
I was more curious if any actual games had been sold this way.
copyrighted
I am not a lawyer, but my understanding is that you don't actually need to do that to be legal. You just have to clean room reverse engineer the DRM. After that, anything you have legal access to, you can legally use.
You could just get past the DRM on the BluRay drive or SD card slot or whatever, and then assuming you have legal rights to use it, load up a full set of Unreal/Unity/Renderware/whatever middleware you want and be off to the races.
Again: This caselaw pre-dates always-on-DRM and Apple-angry-tantrum-responses stuff. So this stuff was 100% legal and clear in the PS2 / Xbox / GameCube days, when there was a clear separation between the two. Now that Apple has tried to muddy the water by pretending their DRM is a "platform" that "provides value", I suspect it will be easier to confuse folks
Console ecosystems are already open-by-law, based on past cases from the 80s and 90s. You can already publish a game to a Switch or PlayStation without ever going through Nintendo or Sony (so long as you don't steal any copywritten assets to do so). You can even publish your own software, that modifies anyone elses software (again, so long as you don't break copyright to do so).
Their eShop/online stores are not yet open, but the devices main software sources are open by law (things like the BluRay drive on a PS4, or the Cartridge slot on a Switch). This is how things like "unauthorized games" were legally published, as well as software editors/debuggers like GameShark, all existed 100% legally as far back as the 90's.
Apple is actually attempting to overturn precedent here, they're trying to claim their TOS is somehow more legally binding than everyone elses is, and trying to reverse battles already fought and lost by Atari / Nintendo / Sega, because companies didn't have easy way to retroactively punish users for fair use back then, like Apple can and does do today.