Nintendo reportedly issues DMCA takedown for Switch homebrew projects | Hacker News Reader

Nintendo reportedly issues DMCA takedown for Switch homebrew projects

gbatemp.net

265 pointsRayyanAnsari167 comments

If our lawmakers actually cared about us, the DMCA would have a clause to the effect of "if bypassing an effective technological protection measure is necessary for anyone to exercise any of their fair use rights, then the means to do so may be freely created and distributed notwithstanding anything else in this law."

Also, there would be penalties for filing false or invalid DMCA claims.

These do exist, actually, for people who knowingly mispresent that material or activity is infringing - Section 512(f).

https://www.law.cornell.edu/uscode/text/17/512 (search for "(f)" a couple of times)

It has been a very weak penalty in practice without much enforcement, but there are some examples of it being used:

https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold.... (successfully, but with low enough damages that it was mainly a moral victory and not really a disincentive for anything)

https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp. (rather less successfully, but not only was the work allowed to stay online, the case did confirm that copyright holders must at least give subjectively good-faith consideration to the idea that material or activity may be fair use before sending a notice of infringement. this does not necessarily require a proper legally reasonable weighing of the statutory fair use factors, just subjectively good-faith consideration.)

The problem with many of these is that people don't actually file a valid DMCA claim, but the hosting provider takes down things anyway. You need to have legal vet everything and fight them all if you want to be effective, but most have gone the YouTube method of doing their own thing.

The bar for a valid DMCA claim is very low. While it's definitely the case that frivolous, non-valid DMCAs get taken at face value and treated as valid by some companies, fixing this wouldn't fix the underlying problem since filing spurious valid DMCAs has almost no real punishment, since no one has been willing to actually litigate to punish people doing it.

Which is ultimately caused by the "attention economy" and that most providers don't get paid by their end-users but instead by advertisers. The service of let's say YouTube is not to provide a place for end-users to upload videos but to provide advertisers with a way to put their spam in front of eyeballs - the content that end-users upload is merely a necessary evil they'd gladly get rid of if they could find some other way of driving traffic to the spam.

Even in a perfect world where the DMCA is "balanced" and any abuses are properly punished, this problem wouldn't go away - the platforms will merely provide alternative means for advertisers (and anyone else who's happy to pay) - their real customers - to take down whatever content they want. It will merely become a bullet point in their list of features that they offer to paid customers, completely independent of the DMCA (and thus wouldn't be subject to whatever the DMCA says).

The grandparent post is talking about §1201, whereas you're talking about §512 (I haven't checked which one Nintendo used, although "DMCA takedown" normally refers to §512).

The project they apparently had Github take down was something that dumps keys from Switches, so it would be 1201, anti-circumvention.

Ah, you're right indeed. (As of course you, specifically, would be on this topic.) My mistake. Unfortunately I can no longer edit my previous comment to correct it.

It is confusing, because some organizations have sometimes improperly sent §512 takedown notices alleging §1201 violations (which isn't contemplated by the text of §512, which requires an allegation of direct copyright infringement). I don't remember if there are any court decisions addressing this practice.

(I also don't know what theories hosting providers use or don't use to argue that they don't have §1201 liability for things that their customers post...)

The lawyers that file the invalid claims should get disbarred.

Yeah, imo 3 false reports and the work goes into the public domain. I'd fight for that

I like the idea, but I think that would flip the table where people start sending fake DMCA takedowns for work they want in public domain.

This would be an issue if the 3rd takedown immediately triggered an un-copyrighting event, but it could be done in other ways. E.g.: "It shall be a defense to a claim of copyright infringement that an author of the claimed work has sent 3 or more invalid DMCA notices in the past"

Confirm who sends the DMCA then.

If they cared about us, inclusion of DRM into any product would exempt it from qualification for copyright protection.

Basically, you should be allowed to have copyright, or DRM, but never both. And you can't change your mind on it either... if the hardware is released with DRM, you don't get to release a non-DRM version because you realized you fucked up. If it's extant anywhere in the world, copyright's forever out of reach.

Trademarks and to a lesser extent copyrights are contingent on the rights holders defending their properties and rights. Courts have invalidated trademarks and copyrights due to insufficient defensive actions from their rights holders. DRM is just one of many methods that a rights holder can defend their properties and rights with.

This isn't to say DRM is acceptable; most examples aren't. But it is legally incompatible to argue that a rights holder can have trademarks/copyrights but should not defend them.

Obligatory IANAL.

This may be true of trademarks, but I've never heard of any requirement to defend copyrights, nor have I heard of any courts invalidating copyrights because of a lack of defending them.

In the interests of treaty harmonization, courts have even gone so far as to reinstate expired copyrights.

They've stolen from the public domain, and given those works back to corporations who didn't even have anything to do with creating them in the first place.

That's like saying that putting locks on your house should exempt you from suing someone for stealing from you.

Look, there's a lot of problems with how both of these things work today, but that seems entirely nonsensical to me.

The copyright deal is, we the people will give you exclusive rights for a limited time, in return the work will then enter the public domain for all to use.

If at the start of the deal you ensure your work cannot fulfill the requirements of that deal, eg use DRM, then you do not enter into that deal as you have already refused it by not fulfilling your end.

In your analogy, you're putting locks on a house, but you were only allowed to rent the house under the agreement that you wouldn't leave it locked up. and you didn't leave a key with anyone or do anything to make sure the house was unlockable. In fact the locks are booby traps that will destroy the house when your rental period is up, robbing those who would otherwise occupy the house of every having that opportunity ... yes, it's a protracted analogy because it sucks and these are different concepts.

All "copyrighted" works belong to the public domain.

We're only giving them a time-limited lease to the stuff. If you leased land to someone for 75 years, and at the end of the lease term they started burying highly radioactive waste on the property to prevent you from taking it back for the next 330,000 years...

Well, you'd just refuse to lease it to people like that, wouldn't you?

We should demand that our government refuse to give those leases out if they do it. DRM or copyright, not both. DRM prevents the work from ever going back to the public domain.

Your arguments are ill-considered, in fact, you don't even prevent one. Just knee-jerk reactionary "nyuh uh!".

Reverse engineering is already a protected activity. So long as you don't distribute a DRM circumvention device or copyrighted content you're in the clear.

Be wary of EULAs though. Even though it hasn’t reached SCOTUS yet, some circuit courts have ruled that if the EULA says “no reverse-engineering,” it is actually a violation of contract to try to reverse-engineer the software. Reverse-engineering the hardware is OK because of First Sale Doctrine, but software is licensed (not sold) and the license terms can ban it in some circumstances.

Edit: When you click “I agree,” you have signed a contract according to US Courts. If you somehow use the software without accepting the EULA, you have no license, which is automatic copyright infringement. Unless expressly stated, software is not “sold” in the US, ever. https://en.m.wikipedia.org/wiki/Clickwrap#Legal_consequences...

> software is licensed (not sold)

What does that mean?

Say that I have, in my hand, a copy of some software. I bought it at a store, for money. I did not sign anything (or even give my name). What law obliges me to follow the EULA? It can’t be contract law, since I did not sign anything. It can’t be copyright law, since I’m not making a copy of the software (or making a public performance, etc.).

So what is it?

Some kind of “by opening this software you agree to the license terms contained within” notice was pretty common on the bag of floppies or on a sticker on the jewel case, etc.

And of course, the EULA would be part of the setup process.

> the EULA would be part of the setup process.

I won’t necessarily agree to (or even see that display of) a EULA if all I do is reverse engineer the software.

The software company will argue that you made a shrinkwrap agreement (where the term clickwrap actually comes from), where the packaging says by opening the packaging or using the software, you've implicitly agreed to the terms of the EULA. It's not super well tested in the courts and opinion is split on it, with rulings either way.

https://en.wikipedia.org/wiki/Shrinkwrap_(contract_law)

That seems… less than solid.

Do other industries do this as well?

“By opening this CD jewel case, you agree to only play this CD as directed by the following rules”?

“By turning the key in the ignition of this vehicle, you agree to be bound to the terms of service”?

“Every time you press the start button on this coffee maker, you agree to extend your SuperCoffee™ subscription to one year in the future”?

You are not allowed to look at my copyrighted display of Christmas lights on the outside of my house without first paying my stated price.

https://en.wikipedia.org/w/index.php?title=Eiffel_Tower&oldi...

> “By opening this CD jewel case, you agree to only play this CD as directed by the following rules”?

Sort of? To my understanding, music and movies are kind of halfway to "licensed, not sold" either.

Oh, I’m sure they would like you to think so.

So buying it used, with no box, already setup by the seller means not agreeing to anything

You bought a physical box. It's yours forever, or to sell.

The box contains a copy of the software. But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software.

The copyright owner generally agrees to enter into a certain contract with whoever buys the box. Typically, the copyright owner specifies what the contract terms are, and it's usually non-negotiable. (The non-negotiability, making it a contract of adhesion, is the strongest argument against so-called "shrinkwrap" or "clickwrap" agreements. But that leaves the box owner with just a box, and no permission to use the software.)

You might be under the misunderstanding that contracts need to be signed to be effective. Nope. There are lots of ways to accept a contract offer, most often by "implied acceptance," where the parties just start doing what the contract says. In your case, that's probably by opening the box and sticking the physical media in your computer (or otherwise running the software). Similar to going to an amusement park whose ticket has a bunch of fine print on it, or working as an employee at a company for a while without ever quite getting around to signing the employment agreement they gave you.

> But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software.

I am not convinced of that. If I hold a book up to a mirror, am I breaking copyright law? If I read a book aloud to a child, am I breaking copyright law? My retinas will contain an actual physical image of the book whenever I look at the book. Are my retinas breaking copyright law?

> You might be under the misunderstanding that contracts need to be signed to be effective. Nope.

I am not under that misapprehension, but I do believe that a contract must be explicitly agreed to in order to be valid. And in my example, I did not agree to anything when purchasing software in a store; I gave them money, they gave me a box.

On your first point, you're wrong on the idea that laws of nature outweigh our written ones. Some things that nature allow us to do have been deemed illegal. It's just what it is. Copyright prevents you from making a copy in the legal sense of a book, or of software. Reading a book to a kid is a private performance, your retinas are memory, and the mirror is just a mirror.

On the whole thing about a contract needing to be agreed on, you're right. Some countries have different jurisprudence, but a shrinkwrap license is difficult to enforce. You need to have actively agreed to a EULA. But copyright law still applies, and you're not given the right to copy software through copyright.

Firstly, your specific argument about a copy being made by running the program; that is explicitly carved out as a copyright exception in many jurisdictions, including – according to user EMIRELADERO in a sibling comment – the US.

You seem to imply, but avoid to state directly, that the answers to my questions are yes, no, yes, and yes, respectively. And that would be completely absurd, and anyone arguing the validity of that in a court would be asking to lose.

Copyright makes copying illegal, yes (among other things, like making a public performance, making a new derived work based on the copyrighted work). But what is a copy? I would argue that a copy of a program must be something which can be used as a program by some other person. Like a copy of a book has to be usable as a book (independently of the original book) to count as a copy. Otherwise, it’s a derived work based on the original work. So what is a “work”? I would argue that a copy of a program in memory, like a mirror image, or a reflection in a retina, is not a “work”, since it can’t be displayed, used, or even sold.

But IANAL.

> The box contains a copy of the software. But copyright law prevents you from making a copy of it, including the copy that your computer would need to make to run the software.

Not so fast!

17 U.S.C § 117 - Limitations on exclusive rights: Computer programs (a)Making of Additional Copy or Adaptation by Owner of Copy.—

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1)that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

...and that's bullshit, and should have never passed muster in a court of law ever. Period. Consideration and a meeting of the minds has always been essential to contract law.

The age of technology was not just a revolution in silicon, but a revolution in wholesale stripping of consumer riggts by buisnesses through legal boilerplate as supported by the United States judiciary's continued coddling of the interests of the tech sector to the detriment of everyone else.

So long as you don't buy it new and you never click i accept your good?

> some circuit courts have ruled that if the EULA says “no reverse-engineering,” it is actually a violation of contract to try to reverse-engineer the software

All that means is that I have to buy the software on the secondary market, and then immediately begin reverse-engineering it, without ever entering into the clickwrap by installing it, no?

Just have to do it in country with sane legal system then. Seems easy enough to find some place where it could be done legally and then rest of the work somewhere else.

Not really. The US is a bully that can use its considerable power to change copyright laws.

What are "fair use rights" in this context? Fair use specifically concerns creating derivative works. You don't by default have a right to use Nintendo's IP however you like, no matter how virtuous or benign you think your use is. You are only licensed to use their products in the ways that they permit.

Fair use (specifically the American variant) is a constitutional and statutory doctrine that balances the rights of the copyright holder and society's. It's decided by 4 factors, weighed "holistically" and individually. Ultimately it's up to each judge to decide whether fair use is present or not. And it applies to all possible infringments of copyrights, not just derivative works.

Thank you for confirming that fair use is not a right. Second, yes it absolutely concerns derivative works as it is a concept in the domain of copyright. While not every violation of copyright is a derivative work, only derivative works are justified under fair use. For instance, piracy can never be justified under fair use. The new work must be transformative to a significant degree.

This topic on the other hand has nothing to do with fair use as there is no derivative work being created. It also isn't a copyright violation, it's a violation of the DMCA. Specifically it violates the DMCA's provision that prohibits distributing tools used to violate the copyright of other work.

> While not every violation of copyright is a derivative work, only derivative works are justified under fair use.

Absolutely not.

Just as an example, the Sony v. Universal case involved direct copying from the TV stream to a VHS tape. Not only that, but it saved Sony itself from the contributory infringment claim too, not just the hypothetical users from their hypothetical direct infringment.

As for the DMCA issues, they're probably unconstitutional. Because fair use is constitutionally required (as held by SCOTUS in Eldred and Golan), a law that results in the doctrine being basically impaled by proxy can not stand.

This is the same rationale the court used in the VHS case. Because a fair use was found, Sony was allowed to continue making their devices. If it was tried today, the DMCA's anti-trafficking provisions wouldn't be allowed to stand IMO, as they would conflict constitutionally with the fair use requirement and factual finding in its favor by the court.

I think the fair use rights would be "you are allowed to write an emulator for the switch and any software components necessary to make games interoperable to the platform of your choosing."

And while you are allowed to implement technical measures to prevent people from doing this or make it difficult you shouldn't have any legal protection.

That has nothing to do with fair use. That is a misuse of the term which has a specific meaning in the context of justifying derivative works of copywritten material.

You are allowed to make an emulator because there is nothing that says it's illegal. Under the DMCA, you are not allowed to distribute tools which help in the circumvention of copyright, which is what this tool does. It allows people to bypass the copyright protections Nintendo has put in place to prevent people from running copied games without permission.

The fair use right that you have is the right to make copies of works for your own use. If you own mario party on the switch and would like to play it on your computer you are allowed to do make a copy of the work to do so.

Tools that facilitate this legal use shouldn't be an able to be taken down. It doesn't matter if you think they're using those tobacco accessories for something else.

But a tool that allows you to break say HBO's streaming DRM wouldn't get this protection.

> any of their fair use rights

Nintendo puts money into R&Ding product.

Then somebody goes on GitHub and says "let me help diminish sales of said product and open source their otherwise intellectual property"

I don't know if that is "fair use". Fair use in their terms is:

buy our product, use it like a regular person

If there was a clause that said "you can only run this emulator if you don't use pirated ROMs and you need to also own a physical unit", then... maybe? But I think your definition of free use is a little stretched. Would be curious to hear from others if I'm wrong.

Just cause in the end you lose money cause of X doesn't make X illegal, nor does it imply X is immoral.

Also, the rules are "buy our product, do whatever you want with it." Craftsman can't pursue legal action on me because I publish guides on using hammers (even their proprietary hammer) as a doorstop. The world of software has apparently been hard at work to take away our right to do whatever we want with the things we own, but I'd encourage all who read this to push back on others trying to move the goal posts on your right to do what you like with the things you pay cold hard cash for.

Fair use in the terms of TV networks was "watch it when we broadcast it like a regular person, home recording on VHS will literally destroy television," but luckily we didn't let rights-holders dictate what fair use was.

Jack Valenti, president of the MPAA, testifying before Congress in 1982:

“I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

For context: months before Valenti said that, in 1981, Sony’s creation and sale of the VCR had been declared contributory copyright infringement by the Ninth Circuit. An appeal to the Supreme Court was in progress. Months after Valenti said that, the Supreme Court reversed the Ninth Circuit decision—by a 5–4 vote.

If a single justice had voted the other way, the VCR would have been ruled illegal across the entire United States. Unfortunately, the movie industry was crushed by the weight of home recording and fast‐forward, and never recovered. Oops, sorry, I meant to say that after their attempt to make the VCR illegal failed, they embraced the format they had tried to destroy, and as a result earned billions and billions of dollars over the subsequent decades. Some Boston strangler!

The cross cutting issue is that I paid for the Switch and should be allowed to do whatever I want with my hardware. If Nintendo did not want me to be able to do that then they shouldn't sell my a Switch - they should license it to me.

Otherwise first sale doctrine means they can pound sand.

The homebrew tools enable piracy in the same way knives enable stabbings. It's perfectly legitimate and legal to buy a switch, buy a game, then dump the game to play on your PC. It's also legitimate to mod your switch to enable running you own software on it.

In fact all the tooling on github is designed specifically to only allow running homebrew but not priacy, you have to go a step further and find "sigpatches" which are not distributed on github if you want to run pirated games.

> Then somebody goes on GitHub and says "let me help diminish sales of said product and open source their otherwise intellectual property"

Emulation is legal, and has been for years. THis is not the same as Piracy.

Nintendo's sales has nothing to do with what is fair use. They sold me something, it's mine now and I should be allowed to do whatever I want with it.

> let me help diminish sales of said product

Any proof of that?

If you actually wanted to prevent piracy, you'd provide better service - stop locking save games to consoles until you pay up (and even that has exceptions, see ACNH) - and provide an easy and supported route to homebrew.

I'm fairly convinced the main reason Xbox has retained integrity all these years on the One is because they let you boot into developer mode and let you run whatever you want. The protection isn't keeping you from using the console, it's keeping you from dumping games. (They obviously also invest a lot more into security, much of which trickles down from Xbox into Windows).

Here's a great talk about security on the Xbox, and why locking down the entire console is a non-goal: https://www.youtube.com/watch?v=U7VwtOrwceo

> open source their otherwise intellectual property

Wrong. No one open sources their IP.

This situation is concerning because Nintendo successfully pressured Skyline, a Switch emulator for Android, to shut down. This could have serious implications for the future of Yuzu or Ryujinx.

It also highlights the flaws in the DMCA system, as companies can abuse it to stifle innovation and competition without proper checks and balances.

I didn’t know it was so easy to pirate switch games. I paid for a ubisoft title that won’t load due to copy protection or some other such bullshit that I don’t care to debug.

I guess if I care at all about actually playing it (I got it for my kindergartner, who promptly asked me to return it to get my money back once it failed to run), the hard part will be bluetooth paring the switch controllers to my Linux box.

Thanks for the roundabout tech support, Nintendo!

> the hard part will be bluetooth paring the switch controllers to my Linux box.

Do you expect that to be hard? The mainline kernel has a driver already.

https://github.com/DanielOgorchock/linux/blob/ogorchock/driv...

https://git.kernel.org/pub/scm/linux/kernel/git/torvalds/lin...

I've never found bluetooth controllers to work that well on linux. The pairing process seems to always be flaky, and then latency issues are often an issue as well.. Certainly not seamless like using them on the switch is.

My experience is the exact opposite, although this probably depends on the quality of the Bluetooth driver in use. My Stadia controller works great on Linux, autoconnecting on power-on and everything.

I think it depends on your computer's bluetooth hardware.

Mine reports itself as a Cambridge Silicon Radio USB device 0A12:0001, and works great with recent Sony controllers, while people with some other dongles have reported lag and/or unstable connections.

This list is a bit old, and wasn't aimed at Nintendo controllers, but might still be a good place to start:

https://github.com/chrippa/ds4drv/wiki/Bluetooth-dongle-comp...

I expect paring them to be harder than torrenting a copy of the game I bought and installing an emulator to run it, but easier than debugging whatever garbage ubisoft included that prevents my licensed copy from working on my unmodified switch.

> I didn’t know it was so easy to pirate switch games.

I didn't either.

I have a launch-day Switch. I waited in line that night for Zelda.

Now, within the past week, for some reason or another I was feeling oddly impatient. I decided to see if I had any aluminum foil laying around to play with. I did, and my impatience suddenly waned away within a download or two. It was that easy.

I am still looking forward to picking up my Collector's Edition for Tears of the Kingdom that I pre-ordered the minute I could. However, I'm much more patient now.

Any tips for where to start regarding Switch homebrew? I have a switch lite that goes mostly unused, but would love to put linux (or you know, have access to a terminal) on it in some form. I mostly exist inside a hackernews bubble -- and a personal recommendation would be more satisfying than me throwing keywords at google and hoping for the best.

I think for the Switch lite you will need to do some soldering

https://www.reddit.com/r/SwitchPirates/comments/139y23v/succ...

Thankyou - that links to a great resource and looks like a fun project.

https://nh-server.github.io/switch-guide/

This isn't software development, it's a war, and people need to get militant about guerilla software distribution because Nintendo and friends aren't stopping (this applies to fangames, hacks, tools, etc.). They have more lawyers and money than anyone has time to rightly fight using conventional means, and hitting people with casual lawsuits continues to work as a deterrent due to America's utter disinterest in protecting the rights of the individual against corporations.

Release software anonymously.

Use torrents. Avoid GitHub and mainstream services. Use usernames you don't associate with. Don't use your real name or link it to your real life. If you're desperate for attribution, divide it up so a library is on your GitHub but the app is not.

People need to examine what matters more to them, credit or doing the thing they're doing, and adjust accordingly, because in such cases it seems like you can either have the latter or neither at all of the two.

I would like to remind everyone reading this that we're mainly talking about playing certain video games without paying for them.

My thought exactly.

The freedom of individuals clearly stops at illegal acts.

are you just saying this tautologically or is it a statement about civil disobedience or about your personal beliefs relating legality vs. morality

Playing a game you haven't bought is illegal, there is no grey area here.

"Here, take this I have played enough"

What about playing a game that you have bought, but emulated on a different platform?

Illegal acts are the source of most freedoms derived in our modern world. When a law is unjust, it is not only acceptable, but duty to ignore or even publicly trangress.

Sure, but playing a game you haven't bought is clearly illegal, there is no grey area there.

The very tools that Nintendo is trying to take down with these DMCA requests can also be used to play games you bought on other platforms. Much of the Switch homebrew scene now is focused on making the emulators work well on platforms like the Steam Deck and PCs more generally because Nintendo’s hardware is so insanely dated that its first party games run better on other devices.

> Nintendo’s hardware is so insanely dated that its first party games run better on other devices.

Of course, you could say exactly the same thing about Microsoft or Sony's hardware - the only difference is the Switch is more dated and its games run better on more devices.

This is is certainly not true for Sony. Ports for PlayStation games to the PC are notorious for running horribly and often never get fixed.

No, we're talking about tools that can be used for piracy. There's a difference.

But we are also taking about tools that are used for piracy >90% of the time.

Which, dangerously, can place things in legal danger. There are legitimate uses for, say, nitroglycerin - but >90% of uses will be illegal and it’s illegal to possess for that reason. Same could be argued for being the approach of some countries to guns. Same in some states for car radar scanners.

I think the emulator developers really do need to consider actually doing something to combat piracy in the long-term, or Nintendo may actually be successful banning it.

One could have said much the same about the iPod.

Or YouTube, if we're picking examples.

> But we are also taking about tools that are used for piracy >90% of the time.

guessing guns manufactures should be liable given the mass shootings in certain trigger-happy places.

> I think the emulator developers really do need to consider actually doing something to combat piracy in the long-term,

surprised that nintendo has not attempted to get dolphin shutdown, with all past attempts of negotiation between third-party developers and big companies [e.g nintendo] have gotten nowhere what do you suggest?

"guessing guns manufactures should be liable given the mass shootings in certain trigger-happy places"

What? What an off-base analogy.

I feel like it's an apt analogy if you're not from the US.

> surprised that nintendo has not attempted to get dolphin shutdown

My guess is that they care about Switch emulation because it's their current console. A Switch emulator actively harms sales of new units and games - and keep in mind, in comparison to Sony and MS, Nintendo is small. They live and die by their IPs and by selling consoles and games.

Dolphin emulates old hardware, that is not produced anymore. They also don't seem that worried about NDS and 3DS emulation and jailbreaking for that matter.

> Dolphin emulates old hardware, that is not produced anymore. They also don't seem that worried about NDS and 3DS emulation and jailbreaking for that matter.

dolphin was able to boot and play some wii games relatively in the middle of commercial sale [2009-2010] so not a rule either.

Someone else's intent to use something illegally should not preclude me from using it legally.

Nor should the creators of said thing be responsible for the misuse of others.

If Nintendo doesn't want their games pirated, they should go after people distributing and downloading the ROMs for those games.

People emulating games they own is a huge market, even if technically they violate things by not ripping it themselves.

> I think the emulator developers really do need to consider actually doing something to combat piracy in the long-term, or Nintendo may actually be successful banning it.

Emulator developers already scrupulously avoid providing any copyrighted game files or even purely functional firmware. On their forums and comment sections, they prohibit asking for or providing links to copyrighted content. For current systems like the Switch, they provide step‐by‐step instructions for how to dump personal copies of legitimately licensed software.

What “something” do you suggest they do? Because Nintendo has openly stated in their copyright FAQs for decades that they consider even creating one’s own personal backups to be unauthorized and illegitimate use of their exclusive intellectual property.

The reality is, there is no step they could take that would make Nintendo happy. Instead, emulator developers do the next best thing (rather, the better thing): keep their actions generally within the confines of current law.

There's no chance these tools would exist if they didn't enable piracy. Almost nobody would care. The other applications are excuses we hide behind.

They're not going to stop pursuing this long after the games are out of print, based on previous experience.

Just want to play the games I own at better than 540p.

expanding: I played Metroid Dread on my Switch, and being a fan of the series, enjoyed it through the end.

A while later I saw a streamer playing the game at 4X resolution, and was blown away at how much better the game looked. I watched them play the whole thing just to experience how good the game looks without jaggies everywhere.

I wish my Nintendo Game License included a clause that allowed me to use an alternative rendering path for their game code. I already paid for the license; just let me run it on better hardware if I have the opportunity.

Reposting from a thread down below, but how are you drawing this conclusion? I've never really understood the close tie between emulation and piracy.

With the exception of the new switch emulators, most emulators are emulating gaming experiences that existed decade(s) ago. I don't know a single person who would download a gamecube emulator to pirate a game they've never played before, people use emulators to re-experience the games they played(and owned) a long time ago.

Even better, publish info and torrents on I2P.

I don’t get why Nintendo doesn’t just hire these people. You’d want these talented people on your team and they probably know the hardware/software better than people in the company.

That’s assuming that these people would want to work for Nintendo…

High likelihood that many of them would jump at the opportunity

Sega does what Nintendon't

https://sonic.fandom.com/wiki/Christian_Whitehead#:~:text=Ch....

I think they've had something of a falling out though.

Came here to say this. I grew up in the Sonic ROM hacking and fan game creation community (with this same username - my first posts are around 2001 and still around) and it was so cool to see how SEGA not only didn’t fuck with, but silently actually supported the scene. It was really awesome to see taxman and stealth get to where they did! I remember playing around with the Sonic Retro engine back in the day on my actual Dreamcast hardware. :)

Meanwhile; my friends in the Mario and Metroid hacking scene would constantly be hit with cease and desist orders from Nintendo, and some absolutely insane projects have been basically DOA and had to go underground. It’s quite a bit sad.

Sega died and Nintendidn't

Sega isn't dead

https://gamerant.com/sega-rovio-acquisition-explained-mobile...

they have hired some homebrew developers in past under some reasonable terms [e.g nda that expires after given time] but guessing well informed actions got overrun by corporate protectionist bullshit.

Leaked documents showed Nintendo hired private investigators to follow and track the movements of 3DS hackers and to have a lawyer confront them at their house to get them to stop. Why would that person want to work for them?

That's a real shame, you're right. I guess I just see talent different. If this was happening for my product I'd want them on my team. You could argue the legality but there is clear drive and talent to be tapped into.

Sure but the point was, if Nintendo _didn't_ do that and instead offered these people work

I know one person who has done security work for Nintendo after previously working on homebrew.

They called me once, in 2015, asking if we could collaborate on Wii U security in some way. I was flattered but decided it would be against my morals.

Cooperative people >>> talented people.

That's the basic equation for most Japanese companies IMO. They'll still hire "genius" type people in specific positions, but probably not random hackers that have a strong sense of not playing by the rules (of course not everyone in the homebrew community is like that, and I'd expect there's actual hirings happening with the more team oriented members)

PS: I think another cultural element to this is, the "brilliant jerk" stereotype is way less pervasive, and you'll already find within Nintendo's hiring pool crazy talented people who are also extremely good team players with decent social skills. That makes it all the more harder to hire wild ninja rockstars.

I'm amazed that emulator and tool developers are still developing in the open. Nintendo's pattern of behavior towards them is pretty well known by now.

How is Nintendo still able to find and pressure individuals all over the world?

Don't use github, don't use your real name, don't host your website, or forums, or downloads in the US or affiliated countries.

Is there something I'm missing here?

What you're missing is that despite the high-profile nature of Nintendo's takedowns, they're only a drop in the bucket compared to the amount of Nintendo-related stuff being developed and published in the open. The takedowns are also highly sporadic. No one bothers with those measures because no one needs to, until suddenly they do.

The other thing is that once you're in the community with a traceable identity, the only way to transition to a proper untraceable identity is to abandon your identity – abandon your friends, abandon your followers if you're a public figure in the community – and start from scratch with a new name. Almost nobody wants to do that.

In practice it's probably good enough if your identity is only mildly protected. Actually, in practice you can probably get away with ignoring takedowns without protecting your identity at all, if you're not engaged in piracy, since the only cases Nintendo actually brings to court tend to be about piracy. But that requires gambling that Nintendo doesn't randomly decide to financially ruin you. Nobody wants to do that either.

Oh, and when it comes to hosting, there are no good alternatives to YouTube and Twitch and Discord, certainly not if you want other people in the community to find you.

Do you know if they have gone after the Zelda and Mario reverse engineering groups?

Has this been litigated?

My extremely naive/uninformed view is that what they are asking to be taken down (a code repo) is not the software itself, but the instructions for a computer.

How is this different from going after a book that tells you how to do something illegal? Publishing instructions for illegal activity is legal afaik…

In the United States, pure code could be a DMCA Section 1201 violation. Read about DeCSS as an example.

In the US, code is recognized as having both an expression and a functional purpose. The functional purpose can, and often is, legally restricted. And if your code is very, very specific to accomplishing an illegal functional purpose, there’s a good chance “free expression” will fail for the same reason you can’t yell at the top of your lungs with a bullhorn in public for hours without being charged for public disturbance.

Ah. That makes legal sense. I don’t like it, but I get why it might be enforceable

Does that mean that the gcode (Cnc instructions) for making, say, a machine gun are not legal, while the technical drawings are?

That would be an entirely seperate set of laws, and I have no idea what they are. This software is probably illegal as it's a tool to bypass DRM, which the DMCA explicitly says is illegal.

Your gun example wouldn't have any DRM, so this part of the DMCA wouldn't apply.

Is this the challenged GitHub repo? https://github.com/shchmue/Lockpick_RCM

one of them

nothing to see here...

  $ git remote -v
  origin https://github.com/shchmue/Lockpick_RCM (fetch)
  origin https://github.com/shchmue/Lockpick_RCM (push)
  $ git show HEAD
  commit d625847124652ee8a69bc335adcbdf8be144b4f8 [snip]

Out of curiosity, are the keys you need for Skyline unique for a Switch device or unique for a game? (meaning the specific instance of a game that you installed on your particular Switch)

Because if it's the latter, you'd have to buy a game anyway before you could play it on the emulator, is that correct?

you need two type of keys:

prod.keys which is universally used by the switch consoles(one file for multiple devices)

title.keys which contains specific keys required by games(one file for one game)

Ah, that makes sense. Are the keys in title.keys specific to the instance of the game you bought or is there one key (that you could get from a website/torrent/etc) that works for all copies of a particular game?

I'm asking because if you'd have to buy the game anyway, then I don't see how Nintendo would even have a revenue loss from the emulator. If there is no revenue loss, then the decision seems to be solely about control.

I have such mixed feelings on Emulation. On one hand, playing games I purchased on a PC or Steam Deck? Adding graphics shaders? Learning how the game works? Super cool!

But then, unfortunately, I will admit also that about 92% of emulation, is so people can play games they did not pay for. The sense of entitlement from these people when they talk about it is often stunning, and I cannot support it. As for Homebrew, despite people talking about it, I have yet to see anyone say “XYZN is a fantastic homebrew game that really shines on the Switch specifically.”

If I was Nintendo, I would honestly be doing the same thing right now. If it were possible to build an emulator that only played purchased games then maybe we could have a discussion about leniency.

Part of the difficulty becomes when a system is so long-lived; the Dolphin project for GameCube and Wii is highly valuable, worthwhile, and good even if some (perhaps massive?) percentage of the people using it pirate games that are no longer sold.

Right, but imagine Nintendo right now. Non-paying customers are now playing, and sometimes even streaming, games a week or more ahead of time. Because if you can get a cartridge, you can dump it and publish it.

Also, ~70% of game sales are within the first month, if not higher. It’s why companies pay big for Denuvo - slowing pirates down a month could save tens of millions. For Nintendo, having games dumped before release is embarrassing and at the worst possible time financially for both them and their developer partners.

If we were talking about Switch game dumping after the end of the Switch’s life like the Wii or GameCube it would be a very different discussion.

Yep - and that's why I don't befront Nintendo doing what they are doing; the Switch is a live console and there's a real demand for pirated games.

so go after the people actively distributing pirated games - much more reasonable than the mixed case of third-party developers.

While i agree that the people in the OP thread are highly arrogant. Piracy is really a service problem, and most pirates like in the op thread wouldnt pay for the product anyways (they are most likely kids, poor, or live in region where the service isnt offered). If i could play switch games on pc legally, i would probably buy more switch games. Only reason i own switch is due to it being a great party game system, so its great having around with guests.

> and good even if some (perhaps massive?) percentage of the people using it pirate games that are no longer sold.

Nintendo is also in the business of rereleasing games were no longer sold.

Then after the Wii U shop closed, how can I buy a copy of Pikmin 2 for the Wii U or Switch?

Nintendo could add a way for emulators to log in to an online account and check for a license. That’ll happen well after pigs start flying.

Why would they do that when their business is selling hardware? You make it seem like they are being foolish or unreasonable. They aren't Netflix

Technically they make all/most of their money on the games people buy - the PS5 is just barely profitable[0] (but only at its massive scale of >20M units), and the xbox series X supposedly still sells at a $100-200 loss[1].

0: https://www.theverge.com/2021/8/4/22609150/sony-playstation-...

1: https://www.thegamer.com/xbox-series-x-s-sole-at-loss-200-do...

Why are you making that comparison? Nintendo is known for their strategy of using cheap/old parts in innovative ways to both increase hardware profit margins, and create lock-in (see: https://en.wikipedia.org/wiki/Gunpei_Yokoi#Lateral_Thinking_...). They make quite a bit of money on each Switch sold, as they have on every console previous.

Nintendo lives soley of their games and consoles (unlike Sony and Microsoft), and they do need profit to survive. but they always pushed boundaries and try to deliver the best gameplay. There are a lot of ways to increase profit, using outdated hardware doesn’t seem the safest way. I prefer to focus on the innovation Nintendo keeps delivering, regardless.

You cited two sources that are irrelevant to your claim. Neither Sony's nor Microsoft's hardware profits have any necessary bearing on Nintendo's.

The last time a major vendor seriously contemplated something like this, Sony made a 45 second ad completely humiliating them, destroying any and all goodwill that vendor had built up over the 6th and 7th generations, and won the early years of the 8th generation more or less for free. Never underestimate to what extent people value things like being able to play games offline and not having to deal with obtrusive checks tied to a centralized service.

Microsoft did it to kill second hand market and piracy. They did it to make more money. They did not for a single speck of time contemplated the benefit for users in that decision.

> But then, unfortunately, I will admit also that about 92% of emulation, is so people can play games they did not pay for. The sense of entitlement from these people when they talk about it is often stunning, and I cannot support it. As for Homebrew, despite people talking about it, I have yet to see anyone say “XYZN is a fantastic homebrew game that really shines on the Switch specifically.”

Who cares? Most of the people using a PC have used it for piracy at one point in time. Do you think PCs should be banned? The fact that some people are going to use emulators for piracy is irrelevant, especially in the scenarios where many of these people do not have the option to purchase said game if they live in regions where they're no longer serviced. And as we've seen before, companies have had no problems taking away things you've purchased or preventing you from playing games you own.

Emulators are both legal and a public good. They are the only reason why a lot of games still exist, as there are many games that never left the consoles they were released on.

I resonate completely. Proponents of piracy don’t understand that it takes teams of people (each with a family to feed, bills to pay) to build stuff. In short term, humanity would benefit from piracy. Everyone would get what they want for free. In long term, we’d just wipe out small businesses and studios that used to make stuff.

There is also a disconnect between “I never think twice to pay for a nice shirt” vs “Games should be free”. People don’t mind paying for things in the analog world.

I never ever feel bad about paying for something that I enjoy. It’s a transaction as old as human civilization. Exchanging value that is mutually beneficial.

I don’t know why I get this feeling that we are actively dismantling the society that used to produce amazing things through trade and trending towards nothing will be built, like some sort of a Frankenstein neo-communist society. I talk to young people and they want free stuff. If it’s not open source, you’re evil.

>Proponents of piracy don’t understand that it takes teams of people (each with a family to feed, bills to pay)

"To be more precise, the study estimates that for every 100 games that are downloaded illegally, players actually legally obtain 24 more games (including free games) than they would in a world in which piracy didn't exist."

https://arstechnica.com/gaming/2017/09/eu-study-finds-piracy...

In the limit when 100% of the society pirates, what happens then? Is there a concrete theory that after a certain threshold, piracy plateaus?

Piracy is mostly dependent on availability, pricing, value proposition, regional parity and affordability. Steam is a great example of how to tackle piracy.

Steam and F2P basically killed piracy for games (and streaming services nuked it for movies) in Russia, for instance, somewhere where I'd estimate 80-98% of everything was pirated. With the current situation there's been a revival of the piracy scene in Russia like it's 2005 all over again.

> Proponents of piracy don’t understand that it takes teams of people (each with a family to feed, bills to pay) to build stuff.

Opponents of piracy don't understand that financial loss was never proven by studies and is an urban legend at this point.

Which one is the urban legend?

Is it that "Let's pirate, it's good for the society, I'm told it is free marketing"?

No the financial loss stories, it's a complete urban legend, never proven by any study

Repeating lies doesn't make it true, even if you have money to push it.

Let's pirate, because, unfortunately it's the best way to preserve the old stuff, because copyright holders mostly don't give a damn about preservation.

Piracy is harmful short term, but absolutely necessary long term.

Well, there is the stealing part.

Which part? Stealing means that something is missing afterwards. That is obviously not the case. You mean unauthorized copy.

The part with the stealing.

I still hope to download a car some day.

>Proponents of piracy don’t understand that it takes teams of people (each with a family to feed, bills to pay) to build stuff

How incredibly rude. As a small business owner I very personally understand what it takes to pay my bills and feed my family. There is no room in my budget for new games releases, just like there is no room in my budget for a netflix (and sixteen other streaming services') subscription.

The equation really is quite simple -- if a product is good, I will pay for it. If a product is crap -- I will not. If good product is locked behind a shitty delivery system, then I will do without it (ie, not pay) or humor myself by pirating it (ie, still not pay).

A tangentially related anecdote; I used to work for a small IOT company that dealt with some fairly proprietary software & hardware. One day I got an email in my inbox from somebody who had reverse engineered our (closed-source) windows client, and built a generic *nix command line client for the tool. We collectively shrugged, asked the developer if he wouldn't mind us hosting the source code on our corporate website, and what license he wanted to use. End result -- we grew our userbase for that particular device, and could point folks that needed a *nix solution at a source package. tl;dr, moral of the story: don't fuck with hobbyists, even if they're reversing your stuff.

I largely agree with you with regards to current systems (such as the Switch), but I think there's some nuance here to consider.

Emulation is legal with specific restrictions, but it's also the only way to play some games and systems that are no longer produced. If we're talking about Nintendo there's a slew of games that they made over the years that you cannot buy from them, they do not produce anymore, do not make available digitally, and would go after anyone who tried to sell them digitally. That goes for PC, Xbox, Playstation, Dreamcast, Sega, etc. - if a company has abandoned the software and hardware I (personally) don't think they have a valid legal or moral claim to stop that from happening.

The second layer is that the groundwork for emulation in consoles tends to begin when that console is current gen - even though the success rate is miniscule, the foundations are laid that allow emulation at a later date. Without those foundations it might be more difficult to emulate abandonware at a later date.

Nintendo also has an established history of resurrecting titles that seem long-dead (or "abandoned"), both as straight re-releases and re-masters, both as one-off sales and as licensed rentals. They even released new hardware to play SMB on pretty recently.

Thy mostly do that with their most popular first party titles. There are a lot of games that have never been released on other platforms.

Some MGS series games have been released on one platform only and those platforms are no longer supported.

If you want to play something like MGS: Twin Snakes legally you have to find a used copy somewhere (and hope that the discs haven't been damaged) and get the original console (and hope that the hardware isn't faulty) to either play the game on it or dump the game somehow. (Dumping might not be legal everywhere). Or you can just sail the high seas and play it on your PC.

I doubt that anyone is going to port less known games to modern systems any time soon.

> I will admit also that about 92% of emulation, is so people can play games they did not pay for.

Where are you getting this figure? I've never really understood the close tie between emulation and piracy.

Plenty of people play games through emulation that they didn't play when they were new. I certainly have done so. Whether that's something you've seen played by someone else, a famous classic you missed out on, or something you've played the later entries of and want to go back to.

The appeal of, for example, Nintendo's paid-for emulation services goes well beyond just stuff you personally played before, and the same applies to downloading roms.

Of course, even taking the nostalgia market alone, I don't know that having owned a game once creates a permanent right to play it free going forward, even in just a moral sense. How many of those people who had previously "experienced" a game sold their copies, or never owned one in the first place?

> Of course, even taking the nostalgia market alone, I don't know that having owned a game once creates a permanent right to play it free going forward, even in just a moral sense. How many of those people who had previously "experienced" a game sold their copies, or never owned one in the first place?

If a game can not be purchased from the developer anymore I have absolutely no moral objection to pirating it. Why would I go out and buy a second hand copy - in some case for extravagant prices - when the developer sees exactly 0% of that money?

Reply on news.ycombinator.com