No it's not. You can't just say "SOME PEOPLE ARE USING THIS FOR PIRACY SO NOBODY SHOULD BE ALLOWED TO USE THIS LEGALLY". That's _not_ how it works and there are many court cases on point here.
The legal uses as well as the plausible fair uses need to be evaluated before you can say "nope, this has gotta go".
Nintendo's latest legal argument against emulators does rest on the DMCA's anti-circumvention provision. The letter from Nintendo to Valve in the Dolphin case makes it pretty clear.
That's just Nintendo's opinion on the matter. This letter is just them asking Valve politely to please take down the emulator.
Until this stuff actually goes to court and an actual judge decides on it, nobody knows what the truth is.
Who am I kidding? Even when the truth is known, they'll still abuse the expense associated with the legal system to bully people into submission. Sony sued a commercial emulator developer decades ago. They made the asinine argument that the screenshots they used was copyright infringement. The judge said it was just comparative advertising instead, and that it was actually good for consumers. Nevertheless you still see these monopolists take down emulator screenshots of their games as if they had the right to do it. They know they won't fight back.
> That's _not_ how it works and there are many court cases on point here.
Those court cases were overridden by Congress... when they passed the DMCA.
Under the DMCA, IT IS A CRIME to:
1) circumvent an "effective" copyright measure for any purpose, except specific, delineated purposes and cases which must be approved and reapproved by the Librarian of Congress every 3 years;
2) traffic in the means or technology to so circumvent a copy protection measure, with no exceptions.
The definition of "effective" is so weak that it applies to anything, even a bit of JavaScript that intercepts right click so you can't "Save Image As". It basically means, would the copy protection measure prevent copying "during the normal course of its operation". I.e., if it's buggy, employs weak crypto, or is otherwise trivially defeated, too bad. You can still catch federal time for breaking it.
In order for a Switch emulator to work properly, the copy protection on the game must be defeated. So even if you dump it yourself and a court somehow rules that copy to be fair use, YOU ARE STILL COMMITTING A CRIME by the very act of dumping it. Therefore, it is illegal to run a Switch emulator to play legitimate Switch games, irrespective of whether those games are "legal" copies or not. And a court may rule that Switch emulators are illegal to distribute as well, since they only have illegal uses.
I am not a lawyer, so I recommend you find yourself a good one if you want to mess around with Switch emulation. Best bet is to not get involved with it at all. Forget about preservation. The Switch and its games are not yours to preserve.
How does an after fact of someone's supposed illegal activity become itself illegal in a case like this? Especially in Brazil if I'm assuming correctly.
I never heard of a case declaring a non-circumvent tool to be illegal just because it may indirectly rely on people dumping it first. If so, then even project64 would be illegal too as bypassing a physical cartridge was ruled to also bypass copy protection.
Also the tool was in another specific country, which I heard doesn't have copy protection laws so the idea that it itself becomes illegal because of the actions in another country sounds even more silly.
> except specific, delineated purposes and cases which must be approved and reapproved by the Librarian of Congress every 3 years;
1201(c)(1) says:
> Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
Wouldn't that apply to DMCA 1201(a)(1) - the part that bans circumvention of copy protection? i.e. since there's US[0] caselaw in favor of format-shifting[1], it's probably still legal to format shift DRM-encumbered material, even if it's illegal to tell people how to do that.
Regardless, you probably don't need to tell people - or at least, private citizens not fearing prosecution from Nintendo for unrelated matters - not to dump their own games, because it's extremely unlikely for anyone to ever get caught doing so. Dumping your own games and running them in an emulator leaves little evidence. In fact, that's why DMCA 1201(a)(2) has no exceptions. DMCA exists to take copying tools away from people who are not legible to copyright holders.
[0] The biggest split between US and UK copyright law is actually just format-shifting. In the UK it's not only illegal to format-shift, but a law to legalize it was struck down on the basis that copyright holders need to be paid for lost sales of the same work in a different format.
[1] RIAA v. Diamond, which notably overcame the Audio Home Recording Act, an even more draconian law on digital music recording technology that mandated specific DRM systems on all digital recordings.
What you need to understand is that Stop Killing Games and future initiatives to come are about changing the law. You arguing about current law means nothing when the whole point is to change it.
Anticircumvention laws were passed in many countries to conform to international treaties. They cannot be changed without violating international law.
If you have difficulty understanding why these treaties were signed and laws passed, perhaps ask someone who makes their living in a creative field (programming doesn't count). Ask them what computers and the internet would have done to their livelihood without DRM and the strong legal protections surrounding it.
> Forget about preservation. The Switch and its games are not yours to preserve.
That's false. I own this Switch and I own the games I purchased on it. I ripped the games and I'm playing the new Zelda on my steam deck right now.
Bureaucrats and capitalists can write silly things on paper all they want, the truth of my ownership is self evident and obvious. I haven't done anything wrong and it's incredibly cynical to argue I have.
If I get fined or go to jail for it, it's just another absurdity. I'm not going to lobotomize myself so I can live in lala land with the bureaucrats and understand their clown world ethics, let them punish me if they catch me I guess.
> You can't just say "SOME PEOPLE ARE USING THIS FOR PIRACY SO NOBODY SHOULD BE ALLOWED TO USE THIS LEGALLY"
That is in fact how many court cases are resolved.
>The legal uses as well as the plausible fair uses need to be evaluated before you can say "nope, this has gotta go".
what "fair uses" do we really have to stand on? "I can play Nintendo games better on my PC"? Are you a university or organization trying to preserve software?
At the end of the day, video games as a whole are not a societal need. So it becomes hard to make some argument against having IP owners not clamp down on entertainment intended to make money.
The LoC can issue exemptions, sort of, but it has to be renewed every three years, and they don't actually apply to circumvention devices themselves, only to users.
>what "fair uses" do we really have to stand on? "I can play Nintendo games better on my PC"? Are you a university or organization trying to preserve software?
In a way, to me, this makes it “more legal” to rip copyright material as I’m forced to pay for it on every HD, usb, etc. i understand it’s not, but if you are going to force me to pay a tax on any storage device, then I might as well get my value out of it.
don't forget debuggers, disassemblers and hexdump tools ;) ...
I don't disagree with you, but if you look at how the law is interpreted, and used 'succesfully' by lawyers. I do think I am right. I think further it's mainly a case of, like other people suggested, circumventing active protections, and also how its 'most commonly used'.
For emulators, the most common use is not the creators and hobbyist trying to keep stuff alive. The most common use is people downloading the stuff who never owned a console or said games, and them playing stuff.
For CD burners you might claim the same, but there's no protections circumvented by the majority users. CD's can just be copied, there's no protection mechanisms. There's warning labels not to distribute copies though, which is against the law. The act of making a copy isn't included in such notices.
It's usually something around distributing illegal copies as far as i've seen them. Not "making copies".
Sure, but primary intent is open to interpretation too.
Dig down deep enough and you'll find the very core of computers is about making copies. Colloquially we speak about moving data across memory or transferring it over a network swap a buffer to disk, but that's not what happens. We make copies and often, but not always, abandon the original.
So it's always been kind of hair splitting to discern between different kinds of copying. Piracy and fair use, owning a software vs having a license to use it - it's a gray area.
and I wager about a million kids, people who can't afford games, or just self-righteous pirates are the ones who engage in copying data. Primary intent can be warped by consumer usage, even if the original ideals were noble (see: Bitcoin).
That's probably why some philantropist doesn't want to try and challenge matters like DMCA. It may only make things worse.
with scanner and printer i printed material for my school colleagues in the german version of highschool, because they could not afford some of the specialized books.
i do not say, piracy is always okay, but the intended use is VERY MUCH open to debate, depending on the view point and the money.
and even more volatile, if much money can influence the societal debate and the law system.
many people are very much we-trust-authority-and-companies-to-do-nothing-wrong.
>i do not say, piracy is always okay, but the intended use is VERY MUCH open to debate, depending on the view point and the money.
I completely agree with this POV. But it also seems like we always get an influx of users who want to unironically destroy (not simply readjust) the idea of IP and copyright everytime topics like this occur. So it can be hard to navigate a discussion like this where some people have such radical mindsests to begin with (and usually not anything resembling a model for their plan)
>many people are very much we-trust-authority-and-companies-to-do-nothing-wrong.
yes, I get that a lot just because I want to simply limit copyright terms down to its original 14/14 terms instead of the absurd 95 years or soemthing, or remove it entirely. 28 years happens to be most of a traditional career, so it seems fair for creators to benefit from their creation for assumedly the rest of their career and a bit into retirement before throwing it out for the public for others to iterate on.
The general idea of "well companies can pay to license it out" hasn't worked out to well in hindsight. Lots of companies will happily sit on projects for years, decades, because sometimes denying others of a project is better than giving it out. I'd also be interested in some sort of "use it or lose it" clause of maybe 10 years or so to prove you have an actual proudct in production before an IP goes into the public domain. It'd also solve those weird licensing hells we run into as companies shut down, but I also see a few obvious loopholes to close.
Is it a coincidence every one of those pieces of tech have been under controversy? Yes, companies have been against easily copying their works for decades, and the laws are wishy washy until someone angry enough to challenge it rises up.
But odds are, if you have that kind of money you benefit from keeping it vauge.
That's not how any of this works.