7 ms·

From the thread: > Whether that's allowed by exception clauses for interoperability, whether that's allowed by some kind of fair use clause, whether Nintendo's

by deng 3y ago

From the thread: > Whether that's allowed by exception clauses for interoperability, whether that's allowed by some kind of fair use clause, whether Nintendo's broken DRM actually counts as an effective copyright protection measure, etc. -> only a lawsuit could decide that. Your guess is probably as good or as bad as anyone else's. Sorry no, this is not a "could go either way" situation. There is ample precedence (see: DeCSS) on what counts as "copy protection", and there really is no question that a judge would see the Wii encryption as a copy protection mechanism and hence the DMCA would apply here. The intent that this is meant as a copy protection is what matters, not whether it is broken or not. (Just the messenger - don't shoot me.)

pwdisswordfishc 3y ago
[flagged]
- akiselev 3y ago
  I don't think the Federalist Society has an opinion on this case.
nickpeterson 3y ago
I think this is spot on. I do wish, however, that game companies could agree on some timeline for when emulating an old console is 'ok'. Because for the overwhelming majority of old games, its either emulate them or don't play them at all.
- cloverich 3y ago
  This is where copyright is broken. Because they are perfectly happy with nobody being able to play them, and the only option being "buy new stuff". If copyright expired in a more reasonable timeframe or had more reasonable constraints (like you can't copyright something to prevent its use all together) we'd be better off, i think. yet it seems more likely ai generated content will be the next step long term, i just can't imagine copyright ever getting weaker as is.
  - ncallaway 3y ago
    I definitely think automatic copyright should be very short (5-10 years), and then the holder can extend it for 5 years at a time, at a (slow initially) exponentially increasing cost based on total duration (up to a maximum of, say, 60 years). That way, defunct titles fall out of copyright protection automatically, unless someone is there to extend them, and pay the costs associated.
    - ronsor 3y ago
      Nintendo would be first in line to pay the renewal fees
      - AlexandrB 3y ago
        There are plenty of third party published games for older Nintendo consoles that might be public domain by now though.
      - ncallaway 3y ago
        I’d have the renewal cost for the 55-60 year extension somewhere around the $2B mark. There would be _very_ few pieces of work that would be valuable enough to spend a few billion for 5 years of additional protection. I’d structure the system so that Nintendo could probably afford (but it’s be painful) to blanket buy the 5-10 year extension for every title it publishes. But the 10-15 year extension would probably be an existential bet for the company, and the 15-20 year extension for every title they publish would be enough to bankrupt the company. The fees should be painful enough that you renew specific works that are still economically productive, but impossible to simply renew everything.
    - Sakos 3y ago
      Unless the cost is prohibitively high, I don't see how this would change the current situation in any way.
      - carlmr 3y ago
        Make it relative? Make the cost of renewal about 10% of initial 5-year revenue from the title. If you're still selling it a lot and you intend to continue, this should be easy to pay. If not, it's quite expensive.
- BLKNSLVR 3y ago
  I think their twisted view of the world is that anyone playing an old game in an emulator is a "lost sale" for a new game. It's unsurprisingly cheap to be a decade or more behind the gaming bleeding edge. (I just re-played through Deus Ex, that's two decades...)
- Sakos 3y ago
  This isn't something that should be decided by corporations. They're almost always going to say no forever. This needs to be regulated and allowed by law after a concrete amount of time that is not significantly longer than the commercial lifetime of a device.
- kmeisthax 3y ago
  90 years after the publication of the last Wii game, and not a second less! /s
gjsman-1000 3y ago
Another example: The copy protection scheme for Blu-ray Discs (AACS) is actually an open standard. You can download the PDF specification from their website right now. But getting your actual unique device key? You are instantly in boiling water if you steal one from another manufacturer. Or another example: There is a lawsuit right now about whether YouTube has legally-protected “technological protection measures,” even though YouTube doesn’t use Widevine, FairPlay, etc. The hope is to get YouTube-DL-Like programs found a violation this way. If the movie industry is seriously embroiled in a lawsuit about whether freaking YouTube has TPMs (and they think they could win), an AES-128 key from Nintendo used for encrypting games is probably a slam dunk. > In the original post: “whether Nintendo's broken DRM actually counts as an effective copyright protection measure” Woah, woah, woah. Courts have been clear as daylight that somebody breaking DRM, or the broken status of DRM, has zero effect on legality. DVD has the weakest protection ever (40-bit keys), has been broken since 1999, but the Library of Congress still has their meetings for arguing about what DMCA exceptions to grant for the next three years. And DVD ripping software companies have been sued and lost repeatedly. It’s still a crime to break into a private area secured by a 60-year-old rusted lock.
- bitwize 3y ago
  We'll have to wait on the result of that court case to be sure, but the letter of the law says that youtube-dl and their ilk are circumvention devices and thus illegal to use or distribute under the DMCA.
malermeister 3y ago
Is it that clear cut? It sounds to me like the interoperability clause would apply: > (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title. https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201 Isn't this exactly what Dolphin is doing? Isn't Dolphin an independently created computer program providing PC interoperability with Switch games?
- gjsman-1000 3y ago
  The Electronic Frontier Foundation has talked repeatedly about how the Interoperability exception is significantly weaker in context than it appears. The biggest problem, as they summarize it, is that “Any interoperable program you created as a result of the reverse engineering is non-infringing.” Aka, your reverse-engineered DVD player software for Linux cannot break TPMs. Your emulator can’t break TPMs. Etc. It only protects breaking TPMs to develop software that does not break TPMs. Surprise, that’s almost useless. In which case, all it does is say that the Dolphin developers can’t be sued for breaking TPMs to develop Dolphin, at least under the DMCA. But they can still be sued if they distribute any TPM-breaking tools. https://www.eff.org/issues/coders/reverse-engineering-faq https://www.eff.org/issues/coders/reverse-engineering-faq

by deng 3y ago

pwdisswordfishc 3y ago

[flagged]

akiselev 3y ago
I don't think the Federalist Society has an opinion on this case.

nickpeterson 3y ago

I think this is spot on. I do wish, however, that game companies could agree on some timeline for when emulating an old console is 'ok'. Because for the overwhelming majority of old games, its either emulate them or don't play them at all.

cloverich 3y ago
This is where copyright is broken. Because they are perfectly happy with nobody being able to play them, and the only option being "buy new stuff". If copyright expired in a more reasonable timeframe or had more reasonable constraints (like you can't copyright something to prevent its use all together) we'd be better off, i think. yet it seems more likely ai generated content will be the next step long term, i just can't imagine copyright ever getting weaker as is.
- ncallaway 3y ago
  I definitely think automatic copyright should be very short (5-10 years), and then the holder can extend it for 5 years at a time, at a (slow initially) exponentially increasing cost based on total duration (up to a maximum of, say, 60 years). That way, defunct titles fall out of copyright protection automatically, unless someone is there to extend them, and pay the costs associated.
  - ronsor 3y ago
    Nintendo would be first in line to pay the renewal fees
    - AlexandrB 3y ago
      There are plenty of third party published games for older Nintendo consoles that might be public domain by now though.
    - ncallaway 3y ago
      I’d have the renewal cost for the 55-60 year extension somewhere around the $2B mark. There would be _very_ few pieces of work that would be valuable enough to spend a few billion for 5 years of additional protection. I’d structure the system so that Nintendo could probably afford (but it’s be painful) to blanket buy the 5-10 year extension for every title it publishes. But the 10-15 year extension would probably be an existential bet for the company, and the 15-20 year extension for every title they publish would be enough to bankrupt the company. The fees should be painful enough that you renew specific works that are still economically productive, but impossible to simply renew everything.
  - Sakos 3y ago
    Unless the cost is prohibitively high, I don't see how this would change the current situation in any way.
    - carlmr 3y ago
      Make it relative? Make the cost of renewal about 10% of initial 5-year revenue from the title. If you're still selling it a lot and you intend to continue, this should be easy to pay. If not, it's quite expensive.
BLKNSLVR 3y ago
I think their twisted view of the world is that anyone playing an old game in an emulator is a "lost sale" for a new game. It's unsurprisingly cheap to be a decade or more behind the gaming bleeding edge. (I just re-played through Deus Ex, that's two decades...)
Sakos 3y ago
This isn't something that should be decided by corporations. They're almost always going to say no forever. This needs to be regulated and allowed by law after a concrete amount of time that is not significantly longer than the commercial lifetime of a device.
kmeisthax 3y ago
90 years after the publication of the last Wii game, and not a second less! /s

gjsman-1000 3y ago

Another example: The copy protection scheme for Blu-ray Discs (AACS) is actually an open standard. You can download the PDF specification from their website right now. But getting your actual unique device key? You are instantly in boiling water if you steal one from another manufacturer. Or another example: There is a lawsuit right now about whether YouTube has legally-protected “technological protection measures,” even though YouTube doesn’t use Widevine, FairPlay, etc. The hope is to get YouTube-DL-Like programs found a violation this way. If the movie industry is seriously embroiled in a lawsuit about whether freaking YouTube has TPMs (and they think they could win), an AES-128 key from Nintendo used for encrypting games is probably a slam dunk. > In the original post: “whether Nintendo's broken DRM actually counts as an effective copyright protection measure” Woah, woah, woah. Courts have been clear as daylight that somebody breaking DRM, or the broken status of DRM, has zero effect on legality. DVD has the weakest protection ever (40-bit keys), has been broken since 1999, but the Library of Congress still has their meetings for arguing about what DMCA exceptions to grant for the next three years. And DVD ripping software companies have been sued and lost repeatedly. It’s still a crime to break into a private area secured by a 60-year-old rusted lock.

bitwize 3y ago
We'll have to wait on the result of that court case to be sure, but the letter of the law says that youtube-dl and their ilk are circumvention devices and thus illegal to use or distribute under the DMCA.

malermeister 3y ago

Is it that clear cut? It sounds to me like the interoperability clause would apply: > (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title. https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201 Isn't this exactly what Dolphin is doing? Isn't Dolphin an independently created computer program providing PC interoperability with Switch games?

gjsman-1000 3y ago
The Electronic Frontier Foundation has talked repeatedly about how the Interoperability exception is significantly weaker in context than it appears. The biggest problem, as they summarize it, is that “Any interoperable program you created as a result of the reverse engineering is non-infringing.” Aka, your reverse-engineered DVD player software for Linux cannot break TPMs. Your emulator can’t break TPMs. Etc. It only protects breaking TPMs to develop software that does not break TPMs. Surprise, that’s almost useless. In which case, all it does is say that the Dolphin developers can’t be sued for breaking TPMs to develop Dolphin, at least under the DMCA. But they can still be sued if they distribute any TPM-breaking tools. https://www.eff.org/issues/coders/reverse-engineering-faq https://www.eff.org/issues/coders/reverse-engineering-faq