Comment by danShumway | Hacker News Reader

Comment by danShumway | Hacker News Reader

There's a really surprising amount of confusion in these comments about how copyright (at least in the US) works. More confusion than I expected to see on a site like Hackernews. Emulators are legal, including emulators for current-gen systems. Switch emulation is exactly as legal as Gameboy emulation.

You can argue current-gen emulators are irresponsible, you can say they're mostly used for piracy, but Nintendo doesn't have a right to stop people from talking about emulators. Taking down videos that talk about emulators is not Nintendo protecting its IP, it is an abuse of the DMCA or other non-DMCA tools in Youtube to shut down conversation that Nintendo has no legal right to shut down. Nintendo does not have the legal right to demand people not talk about emulators or share how they work, that's not a right that IP law grants. To say that they're protecting their IP is just false, they're claiming IP rights that they don't have.

Of course in this scenario, no one is going to challenge these takedowns because no one wants to get sued, and the stakes are ultimately unbelievably low. But a video about how to install an emulator is probably not copyright infringement, and (IANAL), I would be very surprised to see Nintendo get a positive ruling if they actually sued someone over showing how to install an emulator on a computer. Again, IANAL, but I'm not even sure you would claim fair use in a case like this. Fair use is a defense for violating copyright, and emulators don't violate copyright.

Discussions about the morality of emulation and the proliferation of piracy are fine, this can be a complicated subject with moral ramifications. But legally speaking, at least in the US, emulators are not piracy and talking about them is not copyright infringement.

> Emulators are legal, including emulators for current-gen systems. Switch emulation is exactly as legal as Gameboy emulation.

I know you're talking about emulators, not ROMs. But it's also worth mentioning that the legality of Switch ROMs actually is quite different from Game Boy ROMs. I was recently surprised to discover archive.org has ROMs for older systems - IANAL, but apparently this is covered by a DMCA exemption for obsolete formats [1]. Also, Switch ROMs are encrypted on the cartridge, and while I really don't know the details, breaking the encryption also seems to open another legal can of worms (remember when people would get tattoos of the DVD encryption key?).

Once again IANAL, but I suspect Nintendo would have a better case against videos that include instructions on acquiring & decrypting Switch ROMs. I'm not sure if that's the case with these videos or not.

[1] https://archive.org/about/dmca.php

That's an excellent point, thanks for mentioning it. There's a lot of grey area around older ROMs specifically with the Internet Archive because if I remember correctly I think they were granted some extra privileges, but in general distributing most ROMs are illegal period even for older systems. The only way to legally own them is to rip them yourself.

And breaking DRM is usually illegal regardless of whether or not you're doing it for a legal purpose. IANAL, but I think you're right, I suspect Nintendo would probably have a much better case if they went after people showing how to rip ROMs. I have a hard time keeping up with what is and isn't an exception to the DMCA, since it changes occasionally. There are some systems like phones where showing people how to bypass DRM is legal, every once and a while a big list of exception "categories" gets decided, and anything that's not on that list is illegal to bypass DRM for and illegal to show people how to bypass DRM.

It's a little weird. Emulators are legal and for many non-encrypted systems hacking and dumping your own ROMs is legal; but breaking DRM even if you're not doing anything illegal by breaking DRM -- the act itself is often illegal, and I don't remember if an exception was ever made for consoles or not.

One thing for certain, people will say that you can buy a game and then download the ROM, and maybe you can argue it's moral, but it's not legal -- the only way to legally extract a Switch ROM is to buy a Switch, hack it, and literally extract the ROM yourself (and like you mention, even that can be of questionable legality). So we run into a situation where the emulator is legal, talking about the emulator is legal, but getting media to run on the emulator, even if you're not "stealing it" by any commonly understood definition of the term is likely illegal.

Basically it boils down to whether bypassing the DRM falls into one of the current DMCA exceptions, whether you're a library, etc... and I'm embarrassed to admit I don't know if consoles are currently on that list or not.

> More confusion than I expected to see on a site like Hackernews.

Kinda funny, because... you're here claiming that Nintendo is (likely) doing something illegal here and are adding to the confusion.

The thing is, the removals that are in the press right now, especially the Steam Deck one, had gameplay in them... and as far as I know and understand US law and its current interpretation, Nintendo is likely well within its rights to DMCA gameplay.

The problem is using the process of threatening legal action to suppress speech. This is the very problem that anti-SLAPP statutes are designed to protect against; if they're ineffective in this case, they should be amended to explicitly cover DMCA notices in a way that dissuades using them to suppress speech.

For what it's worth, using a brief clip of an emulated Switch game seems to me to clearly fall under Fair Use. It's transformative and does not substitute for the original work, often non-profit and/or educational, is a small portion of the copyrighted work, and fails to displace any sales.

It depends on the nature of the gameplay footage in the videos. There's a high likelihood that it was Fair Use.

> and are adding to the confusion.

> had gameplay in them... and as far as I know and understand US law and its current interpretation, Nintendo is likely well within its rights to DMCA gameplay.

No, not for informational purposes. Nintendo doesn't have the right to (for example) demand a review video come down just because it doesn't like the coverage -- even if the video includes gameplay. If the emulator tutorials showcased large swaths of gameplay then that would be a problem, but snippets would not fall into that category.

Copyright has limits. Companies often try to create the impression that every review, article, tutorial, or blog post that references their products only exists at their pleasure. But that's not actually how copyright works. You can't take down a news article or tutorial unless it's using those snippets in a way that goes beyond fair use.

Of course, Nintendo technically can take down those videos, but not because there's a legal right to or because they're protecting their IP; Nintendo can take down those videos because it has a bunch of lawyers and can threaten to ruin your life regardless of the eventual outcome of any lawsuit, and because Youtube will take down the videos for Nintendo without ever checking to see if Nintendo is abusing the DMCA/takedown process. But that's a separate conversation.

As always, IANAL, but including a snippet of gameplay from a Nintendo game in a tutorial about a Nintendo emulator is probably perfectly legal.

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