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I mean.. who could expect highly paid copyright lawyers in their massive legal teams to know such obscure rules such as fair use :)

gjsman-1000 3y ago
They know about it; but I think they know: A. Are you going to fight it? B. Fair use, from a legal perspective, is much narrower than people think and narrower than the wording suggests. A reaction video is not considered sufficient commentary or criticism, for example. Making even a single word change to a cover song, even if you paid the compulsory license fee, is not fair use. Etc. C. Especially in video games, everyone loves quoting Sega v Accolade or Sony v Bleem as proof emulation is perfectly legal. There’s just one problem: Both of those cases were decided before the mother-of-all-DRM laws, the DMCA, was passed. They are both likely irrelevant cases now. This happens elsewhere too - quoting old cases as proof of legality without other modern developments.
- wang_li 3y ago
  >Especially in video games, everyone loves quoting Sega v Accolade or Sony v Bleem as proof emulation is perfectly legal. There's no need to prove emulation is legal. There's a need to prove it's illegal. There's a long history of making compatible things. Everything from toner cartridges to PC compatibles to auto parts. And especially in the context of copyright law, explain the possibility of a copyright violation in a piece of software written to emulate a hardware platform when there is no ROM or firmware distributed by the authors? Now how most people choose to run emulators is copyright violation from horizon to horizon, but I don't see how that has anything to do with people making emualtion products.
  - gjsman-1000 3y ago
    > explain the possibility of a copyright violation in a piece of software written to emulate a hardware platform when there is no ROM or firmware distributed by the authors It specifically has to do with the DRM keys used for decrypting the games; which would appear to run afoul, in most cases, of the DMCA. It’s also not theoretical. Unauthorized DVD players and ripping software have had their authors legally prosecuted repeatedly (even big companies at the time, like RealPlayer). Gary Bowser also went to prison and had his fines set, in part, for violating that law (notice that it was a criminal case, not a civil one; Nintendo could not have dismissed those charges voluntarily.) Apple sent Psystar into bankruptcy for daring to use their keys to make macOS run on non-Macs as a commercial service. Psystar is actually the best example because they went through the entirety of the legal system to where there was nothing left but appeal to SCOTUS, and they still lost. I think that the biggest danger to emulation, by far, which archivists should be panicking more about, is the people who emulate to avoid buying a game. Which, according to most estimates, is 90%+ of emulation. On an old console who cares? On the Nintendo Switch though, that’s actual market harm (the lack thereof being one of the pillars of determining fair use in a courtroom).
- thwarted 3y ago
  Making even a single word change to a cover song, even if you paid the compulsory license fee, is not fair use. Wouldn't obtaining a license supercede any claims of fair use? The defense wouldn't be "this falls under fair use", the defense would be "I've licensed this, there can't be any complaint".
  - gjsman-1000 3y ago
    I am speaking of the compulsory license that music companies are obligated to offer if you want to make a commercially-produced cover of a song. Currently, it costs 9.1 cents per copy that you sell of a covered song. https://en.m.wikipedia.org/wiki/Mechanical_license https://en.m.wikipedia.org/wiki/Mechanical_license You might read the above and go, “wait, that wasn’t Fair Use this whole time?” Nope. Fair Use doesn’t cover nearly as much as people think.

gjsman-1000 3y ago

They know about it; but I think they know: A. Are you going to fight it? B. Fair use, from a legal perspective, is much narrower than people think and narrower than the wording suggests. A reaction video is not considered sufficient commentary or criticism, for example. Making even a single word change to a cover song, even if you paid the compulsory license fee, is not fair use. Etc. C. Especially in video games, everyone loves quoting Sega v Accolade or Sony v Bleem as proof emulation is perfectly legal. There’s just one problem: Both of those cases were decided before the mother-of-all-DRM laws, the DMCA, was passed. They are both likely irrelevant cases now. This happens elsewhere too - quoting old cases as proof of legality without other modern developments.

wang_li 3y ago
>Especially in video games, everyone loves quoting Sega v Accolade or Sony v Bleem as proof emulation is perfectly legal. There's no need to prove emulation is legal. There's a need to prove it's illegal. There's a long history of making compatible things. Everything from toner cartridges to PC compatibles to auto parts. And especially in the context of copyright law, explain the possibility of a copyright violation in a piece of software written to emulate a hardware platform when there is no ROM or firmware distributed by the authors? Now how most people choose to run emulators is copyright violation from horizon to horizon, but I don't see how that has anything to do with people making emualtion products.
- gjsman-1000 3y ago
  > explain the possibility of a copyright violation in a piece of software written to emulate a hardware platform when there is no ROM or firmware distributed by the authors It specifically has to do with the DRM keys used for decrypting the games; which would appear to run afoul, in most cases, of the DMCA. It’s also not theoretical. Unauthorized DVD players and ripping software have had their authors legally prosecuted repeatedly (even big companies at the time, like RealPlayer). Gary Bowser also went to prison and had his fines set, in part, for violating that law (notice that it was a criminal case, not a civil one; Nintendo could not have dismissed those charges voluntarily.) Apple sent Psystar into bankruptcy for daring to use their keys to make macOS run on non-Macs as a commercial service. Psystar is actually the best example because they went through the entirety of the legal system to where there was nothing left but appeal to SCOTUS, and they still lost. I think that the biggest danger to emulation, by far, which archivists should be panicking more about, is the people who emulate to avoid buying a game. Which, according to most estimates, is 90%+ of emulation. On an old console who cares? On the Nintendo Switch though, that’s actual market harm (the lack thereof being one of the pillars of determining fair use in a courtroom).
thwarted 3y ago
Making even a single word change to a cover song, even if you paid the compulsory license fee, is not fair use. Wouldn't obtaining a license supercede any claims of fair use? The defense wouldn't be "this falls under fair use", the defense would be "I've licensed this, there can't be any complaint".
- gjsman-1000 3y ago
  I am speaking of the compulsory license that music companies are obligated to offer if you want to make a commercially-produced cover of a song. Currently, it costs 9.1 cents per copy that you sell of a covered song. https://en.m.wikipedia.org/wiki/Mechanical_license https://en.m.wikipedia.org/wiki/Mechanical_license You might read the above and go, “wait, that wasn’t Fair Use this whole time?” Nope. Fair Use doesn’t cover nearly as much as people think.