What are you talking about? Every game developer licenses with Nintendo to publish to Switch. Nintendo takes about 30% royalties, which stings if their platform is insecure. Only Nintendo can make physical cartridges. Nothing with the status quo there has changed.
Also, the last original Wii game was Just Dance 2020. Not joking, a Wii game was released 3 years ago.
I was specifically asking about Gamecube and Wii games, not Switch. Dolphin is a Gamecube/Wii emulator, both of which no longer have active games being released for them. Your argument might have some application if it was a Switch emulator being propped up.
Metroid Prime: Remastered just got released on Switch and sold a million units.
Anybody who thought that was a good game is now looking for the second and third installments in the trilogy which Nintendo offically said they weren't going to develop (oops). So those are effectively only available on Dolphin/Wii.
Yeah, Nintendo got caught with their pants down (Metroid Prime sold way better than they expected) and are losing future sales for every person who pulls up Dolphin and the next two Metroids.
Why are you ignoring the issue of games being re-released on newer platforms? Even if the Gamecube and Wii are more or less dead platforms, that doesn't mean the games are no longer valuable IP that the studios want protected in any way possible.
Imo if a publisher wants to retain rights to a game, they should have to make it available for sale. If you don't provide some legal way to acquire a game for some number of years (5? 10?) it should go into the public domain (the game itself, not the related IP).
most games are available on amazon. popular games like rayman raving rabids for wii, motorstorm for ps3, and underground 2 for ps2 are still available new. more niche games like frequency for ps2 and older gen games like crash warped for ps1 are still available refurbished. pretty much any console game from the last 25 years that didn't totally flop is available in good condition from a major retailer. the rest are around at boutiques and on the used market.
we get public domain in 70 years just like everything else, and i can't think of an argument for any game being more of a public good than works of other types like lolita, the search for animal chin, or paul's boutique.
By the time these games enter the public domain, there'll be no way to play them except via an emulator and no way to develop an emulator if there's not one already - the flash holding the OS on all the Wiis out there will have long bitrotted away. Hell, a lot of the newer Wii Us are already dying due to flash failure just from being switched off for a few years. Strict copyright and DRM enforcement would most likely lead to this era of games being lost forever, just like many older films from a century or more ago have been lost.
> we get public domain in 70 years just like everything else,
Nitpick: video games are almost always a work-for-hire, so it's 95 years after publication (or 120 years after creation, in the unusual event that publication gets delayed long enough for this deadline to expire first).
The comment you're replying to used the word "should" often enough to signal to you that it was expressing an opinion about what the law ought to be amended to, rather than commenting on the current state of the law. So your comment reads like you're denying that a member of the general public deserves any stake in determining the extent of copyright protection, which is very wrong: copyright is a social contract codified into law, where creators/authors get the (time-limited) benefits of certain exclusive rights and the use of the public's courts to enforce those, in exchange for the eventual passing of that work into public domain. It is entirely fair for the public to debate what the extent and duration of those exclusive rights should be, and to question whether the current deal is excessively one-sided. It is not correct morally or legally to act as though authors are the sole arbiters of how their works may be used.
I think you're misreading the parent comment or reinterpreting the intent behind it.
Someone made a thing. They get to decide who they share it with. It's very smug and entitled to then go to that person and tell them "actually no. the thing you created.. its not yours anymore. It's now ours - and we're going to use it how we want to use it".
It's cool you like to play my game and you had fun - but that doesn't mean you suddenly have a right to play it whenever you want - unless we came to that agreement. I'm not a creator myself, but I could see how that just feels incredibly violating. I frankly feel this copyright-reform sentiments come from people that have never created anything that they felt personal ownership over.
I'd argue that copyright expiration is not at all about some imagined exchange of legal protections for .. the use of courts (since when is the use of courts treated as a privilege?) and is more about historical preservation and the fact that ownership is often eventually lost. Most copyright provisions are so long that by the time they expire there is noone left to feel robbed, slighted or taken advantage of. It's a fuzzy line but at some point graverobbing becomes archeology
>It's very smug and entitled to then go to that person and tell them "actually no. the thing you created.. its not yours anymore. It's now ours - and we're going to use it how we want to use it"
That is the entirety of copyright in a nutshell, though. There comes a time when it really isn't entitlement to say "you don't get to control this work anymore", and that time has to come before copyright expiry in a practical sense, or there would be no works to enter the public domain, in a very real physical sense. Copyright owners are horrible stewards of their work, thousands of works have been lost due to gross mismanagement of archives (if the company even decides to give a shit about archiving anything).
Today's pirates are tomorrow's preservationists. Without the works that are being pirated, right now, they run the risk of being lost to time.
If used game sales actually resulted in money going to the copyright holders, I might have some more sympathy for that argument. But whether I pirate a copy of game X, or buy it from a secondhand seller, the original copyright holder sees zero of that money, and that's actually a good thing, and protects actual property rights, those of the person who buys a physical copy of a piece of media.
If you're worried about things being lost to time, then maybe that's a valid concern and could be addressed in a more direct manner than entirely removing/limiting copyright. If I put a copy in a special box that opens in 50 years, would you allow me to retain control of my own work/words for longer? Or is that somehow still not good enough?
But I have a larger issue with the premise. So say I write a book - it seems to me you're saying I have a moral obligation for that book to be preserved for future generations to read. How about if I actively don't want that to happen? Should the cops come to my door and take it away?
Or if let one other person read it, now they inherit some right over my work to reread it?
I just don't find the whole anticopyright argument cohesive and coming from a clear moral premise
A lot of it kinda boils down to companies mismanage their IP and it's annoying. And the weird particulars of the medium of exchange. Okay, SNES/PS1 games came on cartridges/CDs, so you can physically introspect and extract the data... you feel entitles to circumvent whatever protections there are. In the future its likely games will be streamed and played in the cloud. You will never have physical access to the actual executed bits. Does that mean your rights as a user are different now? Or should you send the cops to seize the code on the servers at some point?
> So say I write a book - it seems to me you're saying I have a moral obligation for that book to be preserved for future generations to read. How about if I actively don't want that to happen? Should the cops come to my door and take it away?
You're always free to not publish your work, and you'll never be compelled to publish your work. But at some point, you (or your heirs) will lose the right to use copyright law to prevent other people from publishing your work.
> Or if let one other person read it, now they inherit some right over my work to reread it?
Copyright only gives authors/owners a limited set of exclusive rights over their works, mostly concerning physical copies, derivative works and public performance: https://www.law.cornell.edu/uscode/text/17/106 Copyright law is not about ideas or knowledge in your head. Reading a book is not an activity that copyright law is concerned with.
> In the future its likely games will be streamed and played in the cloud. You will never have physical access to the actual executed bits. Does that mean your rights as a user are different now?
Being a user isn't what gives you rights under copyright law. Being a legal owner of a copy of a game is what matters. If you only use a streaming service, you probably have never purchased a copy of the game. You may have purchased a license authorizing a hosting provider to run their copy of the game on your behalf (commercial software vendors like to use contract law to try to wield powers that copyright law doesn't grant them).
We're coming at this a bit different - b/c you're leaning on explaining the current legal framework in the united states, while I'm trying to come to a holistic morally consistent set of rules that makes sense
> Being a user isn't what gives you rights under copyright law. Being a legal owner of a copy of a game is what matters.
This is meaningless legal/semantic gymnastics. If that's your definition of "owning a legal copy" then companies will simply not sell you a "legal copy" and instead will give you an "indefinite lease" or some other jargon they make up. Or make you sign an EULA.
The fact that "legal copies" are distributed is 99% of the time not because companies want to allow you to copy their games - it's simply a practical limitation on the means of distribution. In the system you describe (which might correspond to the current reality) a cloud streamed game just inherently will always have more legal protection that a physically distributed game. There is no way to transmit a person executable bits without "loosing control" of them.
The big cloud providers would love this reality! The end result is that everyone is compelled, by market forces in effect, to shift their distribution to a jankier alternative because the physical medium doesn't allowed the same level of IP control.
So in the end your societal objectives are not achieved. It's in fact severely hampered.
- People get a worse products - everything turns to online streamed garbage
- People loose complete access at the whim of the company - when they decide to shut down their servers.
- The IP never ever reaches the public domain b/c it's never "distributed"
The game is eventually probably lost to time as some intern wipes the last copy from some backupdisk
You also create a weird universe where linear media that's streamed and can be captured (eg. a movie or a book) can be copied b/c you necessarily received "every bit" while something nonlinear like games can't - b/c you never get all the bits to "rerun" it locally. The whole setup is just nonsensical
> I'd argue that copyright expiration is not at all about some imagined exchange of legal protections for .. the use of courts (since when is the use of courts treated as a privilege?) and is more about historical preservation
Well, you're simply wrong on that score. The US Constitution empowers Congress to establish copyright laws thus:
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
It's not about archeology, it's about promoting the development of new stuff. To that end, at some point it's better to free a work for others to build upon than to allow continued profiteering by the existing author/owner.
The first sale doctrine would beg to differ. Which is modulo regional/national regulations and restrictions on certain kinds of products… basically globally recognised.
As would the legal recognition of format shifting in multiple jurisdictions around the world…
I bought it and the hardware stops working… I still have the legal right to do what I want with the data on that disk.
If I’m a legitimate customer and you sold not licensed me the software… fuck you Nintendo I have the right to emulate your hardware (which I also own thus providing a right to whatever software was sold on that device, so that angle isn’t a solid argument either.)
The only question that should be legally argued over is do the documented infringement cases of people recording themselves doing this on streams, have a legal defence for the allegations Nintendo could level at them. They are innocent until proven guilty by law and it would be more effort for Nintendo to bring charges…
So they took the morally reprehensible cheaper action of going after the legal emulator software rather to save themselves time and money attacking developers not in a position to fight back because while they are standing firmly in legal territory making the software, you would have to be very optimistic to think the arguments Nintendo could make with their expensive lawyers about “facilitating crime” wouldn’t be persuasive.
Yeah Im going to chime in right there, his opinion is relevant.
You cant just cut off a release an expect everybody to stop experiencing it. IMHO this is similar to books that go out of print. People might go to different methods to obtain copies. It's the publishers/developers fault if they loose out on money if they are not making their works available. Plus many developers let works expire deliberately to attempt to force people to other options that serves only ulterior motives. Copyright was only valuable to protect a work for a limited time. Many publishers and developers are using the extension of copyright way past its public benefit. People forget that commercialism is meant to serve the public good, not the other way around. Rights as a commercial enterprise are limited by operating a private enterprise under strict guidelines that serve common good, hence the reason why we have charters. The fact that charters are no longer honored under the principals they were created for in the first place is another matter.
> Yes, you can. You own the product, you may choose to stop selling it.
"Stop selling it" isn't the same as making everybody "stop experiencing it". A publisher can choose to stop selling more copies, but they can't undo what they've already sold, and they have limited powers to control what people do with the copies they previously bought, and those powers have an expiration date—which may need to be moved closer to the present.
The concept of owning ideas is, and has always been, on shaky ground. Whether we continue to play along with it is indeed up to us. And it's perfectly reasonable to make that cooperation contingent on the behavior of those who would own the ideas.
It's not the rightsholders' property either. It's the public's property. We just give the rightholders a temporary monopoly on distributing such work.
First of all, despite the legal handwaving around the topic, copyrights and related works are not property in and of themselves. They can manifest in physical property, but they are not property themselves. I reject the use of the term "intellectual property", as it is a complete misnomer.
Secondly, copyrights are not absolute. There are acts that the rightsholder would not want you to do, but that are still legal.
I dont know since when but for some strange reason HN has turned into anti IP, anti patent ( good or bad, software or not ) or basically everything should be free, that type of ideological mentality. And it has been going on for more than few years. Just want to say a big thank you for continue to comment and contributing on HN. Hopefully I get to read more of your work on Anandtech.
I would say it’s more about establishing legal boundaries.
The Wii was the first console to use digital signatures; which would make it the first console to really invoke DMCA Section 1201 when prior consoles did not. Establishing out the gate that this tramples on 1201 could be extremely important in the future. Section 1201 is also what overrides Bleam and other prior emulator lawsuits - they didn’t have cryptographic keys protected by law flying around.
Because, how long until Yuzu is on the Steam store? And if Nintendo didn’t take action for the Wii (the first one protected under the title), defending against Yuzu is much harder.
Cryptographic key doesn't matter. It's covered explicitly under the exemptions listed in Section 1201. Discovering the cryptographic key using reverse engineering and using it for system interoperability is legal. They explicitly call this out:
> to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner;
If only it were that easy. The EFF had long warned that the interoperability exception is legally much weaker when it conflicts with 1201 than it appears, and is (in their view) legally almost useless.
“The "act" prohibition, set out in section 1201(a)(1), prohibits the act of circumventing a technological measure used by copyright owners to control access to their works ("access controls"). So, for example, this provision makes it unlawful to defeat the encryption system used on DVD movies. This ban on acts of circumvention applies even where the purpose for decrypting the movie would otherwise be legitimate. As a result, it is unlawful to make a digital copy ("rip") of a DVD you own for playback on your video iPod.
The "tools" prohibitions, set out in sections 1201(a)(2) and 1201(b), outlaw the manufacture, sale, distribution, or trafficking of tools and technologies that make circumvention possible. These provisions ban both technologies that defeat access controls, and also technologies that defeat use restrictions imposed by copyright owners, such as copy controls. These provisions prohibit the distribution of "DVD back-up" software, for example.
Section 1201 includes a number of exceptions for certain limited classes of activities, including security testing, reverse engineering of software, encryption research, and law enforcement. These exceptions have been extensively criticized as being too narrow to be of real use to the constituencies who they were intended to assist.“
This comes up elsewhere on this Hacker News thread, because Dolphin actually does contain a Nintendo encryption key. Which makes Dolphin almost indistinguishable from, say, a DVD ripper or counterfeit DVD player, which this law was specifically designed to crush.
If you want a further example, look into Apple v Psystar, where Psystar broke Apple’s DMCA 1201 locks to run macOS on unofficial hardware with “interoperability between hardware” being one of their many legal defenses. They were squashed in hearing after hearing and declared bankruptcy after having exhausted all legal options.
> As a result, it is unlawful to make a digital copy ("rip") of a DVD you own for playback on your video iPod.
Strictly speaking, this is true. It is not unlawful to plug a DVD player into your iPod and play the DVD back digitally though. That's basically what Dolphin is doing - it runs unmodified disc images, copy protection and all. They've even abstained from using code or insights gained from the Wii's source code leak. The emulator should be clean, outside of any legal complaints about "damages".
You're correct to highlight that it's still an ambiguous area, but in a post-Bleem! world it's hard for Nintendo/Microsoft/Sony to find the legal willpower to stop these people. They'll settle for easy wins like harassing Valve's legal staff with scary looking letters instead.
> If you want a further example, look into Apple v Psystar
There's more recent precedent with Corellium. Their commercial product is allowed to create iOS VMs on unofficial hardware. Running their code is considered fair use, the most valid legal claim Apple had for shutting them down was their violation of icon and wallpaper trademarks.
> It is not unlawful to plug a DVD player into your iPod and play the DVD back digitally though. That's basically what Dolphin is doing - it runs unmodified disc images, copy protection and all.
If it can play disc images with copy protection, it de facto requires a way around that copy protection that is unlicensed, slamming it squarely into Section 1201.
> The emulator should be clean, outside of any legal complaints about "damages".
Dolphin contains Nintendo decryption keys; which is actually very likely illegal when the rest of the emulator is not. Recall 09 F9…
A competing emulator developer (for Citra) has also commented on this and said what Dolphin did there was legally dangerous and very much not endorsed by courts.
> Their commercial product is allowed to create iOS VMs on unofficial hardware.
If you read the ruling, the fair use won because Corellium successfully argued there was no way that their product could impact Apple in any substantial negative way in the general market. They also argued that their products do not perform as substitutes to any products that Apple provides. And lastly, their products offer a unique benefit for a unique, niche, special interest, with vetting and similar procedures to ensure only people with those interests used their software.
If, however, they had done that to make their own smartphones, or a general iOS emulator for playing games on PC, they would have been annihilated. Nintendo easily has a case that emulation causes substantial financial and business harm; and that emulation can serve as a replacement for their products. Courts don’t like that.
Edit (“posting too fast”):
Unlike the GameCube, Wii games are digitally signed and encrypted.
This specific line of code contains the illegal key:
As the developer of Citra (above) noted, big no-no. The emulator is legally fine, but encryption keys are a no-go. Bleam was OK because keys were not involved. Every case that has involved keys for a non-extremely-specific use (Psystar, RealPlayer, VidAngel) has gone down in flames.
I don't believe it does. Wii U emulator CEMU requires them to boot, and Citra the 3DS emulator also requires them. The Wii seems to have no copy protection to speak of, besides it's rudimentary disk check/hashing routine. I'd love to be proven wrong on this, though.
> the fair use won because Corellium successfully argued there was no way that their product could impact Apple in any substantial way regarding security research
> Nintendo easily has a case that emulation causes substantial financial and business harm
> To the extent Bleem merely approximates what the PlayStation games look like, by generating screen shots through a process of degrading a computer image, it is simply creating a simulation. If Bleem insists on generating simulated approximations of Sony's games, there is no need for Bleem to use Sony's copyrighted material whatsoever.
Again - there is still ambiguity in these rulings, especially for modern console emulators. It's easy to scare Steam into taking this down since Valve doesn't want to take the fall for emulators. That being said, a true cease-and-desist scenario for Dolphin is likely unlawful, given the precedent and context.
Edit in response to your edit: Citra's developer is right - this is brazen. But it's also a legal can of worms Nintendo cannot guarantee a win on. Their claim is that it violates the Copyright Act, which they would then have to defend against the DMCA amendments that give explicit protections to many classes of usage. If "the key" is their objection, Nintendo's copyright complaint will be about as effective as the DeCSS moratorium.
I don't understand how private keys are any different from secret ingredients. You can't stop me from cracking the KFC recipe and if I successfully did it and published the recipe can KFC come after me? What if KFC was sloppy and dropped the recipe on the floor and I found it and published that?
To me the private key is just a secret blend of bits to make the output bits look exactly the way you'd expect. If Nintendo can't keep their private keys private isn't that their problem? Why does someone else have the responsibility to keep Nintendo's key private if they discover it?
DMCA Section 1201 is your answer. Those keys are primarily used for circumventing “technological protection measures” on software. That’s not legal even for otherwise legal uses which is why the Section is morally awful. What you do could be completely legal otherwise, but if it involves circumventing these “TPMs” of which encryption keys are an important part of, you’re screwed.
An emulator, meanwhile, only mimics hardware which is considered legal. An example: It is completely legal to implement the DVD specification; but brute-forcing the keys to decrypt DVDs because you don’t have a license is not.
The same applies to AACS, which protects Blu-ray Discs. It’s actually published publicly - you can just go download the spec for that copy protection right now. But getting a legal, unique device key will require contracts.
Stupid? Yes, but that’s where the law is drawn right now.
What about Sony vs. Connectix? That case seems to have established that US copyright law does not confer a monopoly on devices or software to play commercial games.
They was both A) a case decided before the DMCA was law, and B) the DRM system of the PS1 is pretty much solely focused on legitimate PS1s only playing legitimate discs; there's nothing in most games stopping other systems from reading everything off the disc freely in cleartext.
I’m sorry, I should have said first Nintendo console. The earlier Nintendo consoles had no ROM encryption and used heavily physical protection methods (odd disc sizes, lockout chips).
Also, the last original Wii game was Just Dance 2020. Not joking, a Wii game was released 3 years ago.