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Comment by Jasper_ | Hacker News Reader

The DMCA was for the private encryption keys included directly inside Dolphin source code [0]. I am not defending the DMCA at all, I think it's a shit law, but let's be clear, I can't think of a clearer example of a valid DMCA violation. It is circumventing a technological measure that effectively controls access to a protected work [1]. Defending it by saying the work is non-infringing is fighting a very losing battle, you would have to attack the DMCA at its core in order to come out on top here.

[0] https://github.com/dolphin-emu/dolphin/blob/master/Source/Co...

[1] https://www.law.cornell.edu/uscode/text/17/1201

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> It is circumventing a technological measure that effectively controls access to a protected work

To be fair, the law is worded so poorly that I'm not sure that _anything_ can be considered a "clear" example of it. How can a measure be "effective" if it can be circumvented? If you're going to define "effective" in any way that includes this, you're going to need to explain why it wouldn't apply equally well to a loading screen message calling "dibs" when the game starts up. It's just as effective up until the point that you circumvent it (by just ignoring it)!

I do think that this is the type of thing that's _intended_ to be against this law, but it's hard to take that seriously as an argument that this justifies legal action when the view that laws should be read exactly as written and not "interpreted" for intent is promulgated with such fervor in many political circles.

By "effective" it means "that has the effect of"

I don't see how that clarifies anything; what effect does a measure that's been circumvented have, and how does it differ from the effect of a message of "dibs" that some people decide to abide by?

The law says that nobody shall circumvent a technical protection measure that has the effect of controlling access to a copyrighted work.

Okay, so how is my access controlled if I circumvent the measure? And how does that not apply equally well to me just being told in a "technical" way not to access something?

You are strawmanning the law whereas a judge interpreting it will steelman it.

Exactly. A judge will not interpret the law as only outlawing what is impossible.

And the law does provide a definition:

> a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

This is just continuing to move the question into new language that's not any less obtuse; if the game comes on a cartridge and I need to copy it onto a computer to put in an emulator, and the game's loading screen tells me not to, how is this not "a process" that doesn't have "the authority of the copyright owner" even if it's not encrypted in any way? Even more preposterously, if the game tells me I can only play on Tuesdays, and when it boots up it gives me a prompt saying "press A to continue if it's Tuesday, but if it's not, shut down the console and wait until Tuesday", and I ignore that and press A on Wednesday, how am I not performing a process (pressing A) without the authority of the copyright owner (who only gave me permission on Tuesdays)?

Sure, I don't actually think that my arguments would actually hold up in court, but that's kind of my point; the law is written very poorly, which means that the _actual_ legal effect is not nearly as clear to a lay person as the original comment I was responding to was arguing. I alluded to this in my second paragraph in my comment, but I guess I could have been more explicit.

In the same way that you are still trespassing even if you can easily step over a fence saying "no entry". Try going to a judge and saying "well the sign lied, because yes I was able to entry when it said I shouldn't be able to"

Crimes are not based on technicalities, they are based on intent. The environment put up resistance and signs to let you know it was trying to effectively control your access. You just willfully ignored them and stepped over the fence anyway.

Even if I play my own games? I bought the game, I just want to play it on an emulator.

Courts have clarified that bypassing it "without the authority of the copyright owner" means the authority to access the work despite the technological protection measure. By default you can't access it without bypassing the measure.

Repeating from another subthread: if the game tells me I can only play on Tuesdays, and when it boots up it gives me a prompt saying "press A to continue if it's Tuesday, but if it's not, shut down the console and wait until Tuesday", and I ignore that and press A on Wednesday, how am I not bypassing a technical measure (requiring an input electronically to the console) without the authority of the copyright owner (who only gave me permission do to so on Tuesdays)?

The access isn't very controlled if you give all your customers the key, now, is it?

> How can a measure be "effective" if it can be circumvented?

"Effective" is defined in the law. It basically means any copy protection measure which, during the normal course of its operation (i.e., the happy path), prevents unauthorized copying. A bit of JavaScript that disables "Save Image As" qualifies. If you write a browser extension that knocks out that JavaScript, you could be civilly and criminally liable under the DMCA.

That's the intention. They make the law so unclear on purpose that they can arrest you for almost anything.

Effective is very clear in legal drafting - it means that there must be a function that occurs for this purpose, not that it has to succeed.

Essentially all "effective" means is that you can't put a piece of paper in the box that says "this is a technical protection measure", you need to have some engineering that is intended to be one.

No ambiguity in the drafting here, and if you took your argument to court you would lose.

If this is going to be Nintendo's 09F911029D74E35BD84156C5635688C0 (or its 455FE10422CA29C4933F95052B792AB2 as this is far from the first time Nintendo's keys leaked), I doubt the courts would care.

Worst case scenario, someone in France can probably get around the problem by launching it on French Steam so people can only get the emulator through one of those throwaway VPNs. VLC managed to avoid censorship from big media companies through "foreign" law. I doubt it's worth the trouble, though.

DMCA 1201 is good law in France. America conditions trade agreements upon countries adopting equivalent language to 1201 in their local law. In the case of France, the EU Copyright Directive has had 1201-equivalent language in it since the early 2000s.

Even if it wasn't good law in France, Steam is a US platform, there is no "French Steam". You need something entirely owned and operated by non-US individuals to even have a chance of escaping US jurisdiction. Chinese domestic equivalent services would be your best bet these days, except now you have to deal with China's censorship machine, which makes the censorship[0] of not being able to release encryption keys for old videogames look like nothing.

[0] US courts have categorically rejected the argument that copyright infringement is free speech. In fact, they seem to believe the opposite: that artists not being paid in monopoly rights is censorship, and that the 1st Amendment has a sort of ROBOT9000[1] rule where copies aren't speech.

The EFF has 1st Amendment challenges to DMCA 1201 specifically but I do not expect them to be successful.

[1] An IRC bot operated by XKCD creator Randall Munroe, which was also implemented by moot in 4chan's /r9k/ board. The bot removes speech that has been spoken in the past.

Are you sure those are Nintendo AES keys? The comments above suggest they're not:

  // Dolphin does not use the same "default" values as IOS does, as we do not emulate unblown 
  // scenario.

If they're Nintendo's keys, why would they DMCA a Steam page but not a GitHub repository that's distributing the keys?

Yes, they are Nintendo's private keys. I believe the comment is referring to the early factory programming stage of the console, though I'm not 100% sure. PCGamer.com also confirmed the DMCA notice says it's about encryption keys [0]

> The DCMA letter sent to Valve cites the anti-circumvention language of the DMCA and specifically claims that "the Dolphin emulator operates by incorporating these cryptographic keys without Nintendo’s authorization and decrypting the ROMs at or immediately before runtime. Thus, use of the Dolphin emulator unlawfully 'circumvent[s] a technological measure that effectively controls access to a work protected under' the Copyright Act."

> If they're Nintendo's keys, why would they DMCA a Steam page but not a GitHub repository that's distributing the keys?

Because Nintendo's legal department is not dumb and makes very specific takedown requests that they know they can win, as opposed to taking down more gray-area things like source code.

Grabbing an emulator from dolphin-emu.org or GitHub is not the same thing as grabbing an emulator from a well-moderated public storefront where a good number of your third-party partners also publish their games.

Nintendo does not publish their games on Steam as of right now, but for an analogy, imagine how happy Sony would be if a PS4 emulator showed up on Steam recommended right next to their other PC games.

This was always playing with fire.

[0] https://www.pcgamer.com/nintendo-sends-valve-dmca-notice-to-...

Doesn't the DMCA's interoperability exception cover this?

(1)Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

(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.

(3)The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

Aside from that, there's also the problem that a DMCA notice as defined in 17 U.S.C. §512 is a procedure for handling copyright infringement. Nintendo is apparently alleging a violation of 17 U.S.C. §1201, which defines a separate class of offense that is not the same thing as copyright infringement. So what Nintendo sent probably isn't a proper DMCA notice, but rather a cease-and-desist letter that pretends to be a DMCA notice or has been misinterpreted by the target and the press as being a DMCA notice because it mentions the DMCA (albeit a different part of the DMCA).

>Because Nintendo's legal department is not dumb and makes very specific takedown requests that they know they can win, as opposed to taking down more gray-area things like source code.

But you couldn't even grab the emulator from Steam! There is zero indication that the Steam version of emulator would even include those keys (it's trivial to make the user to type them in/point to a file with them). So DMCA is a total bs and typical example of the abuse that is never punished in our legal system.

It's like copyright striking a channel with the announcement that they'll be streaming a parody of Morbius with the reason that it contains copyright material (perhaps some previous parody included shots from the trailer), without actually seeing the final product.

> imagine how happy Sony would be if a PS4 emulator showed up on Steam recommended right next to their other PC games

You don't have to imagine, Bleem! was sold in boxes in game stores. Sadly, Sony lost that battle and emulators were deemed legal.

you can extract that exact key from a real Wii using a pair of tweezers

> If they're Nintendo's keys, why would they DMCA a Steam page but not a GitHub repository that's distributing the keys?

I don't know

So remove it and have people copy it in when they set up Dolphin. You can find the keys easily and you can get them for your own wii.

Yeah it feels like republishing with the keys removed will mean this DMCA request is moot

Encryption keys are not an expression, they are more like technological utility. I don’t think they are copyrighted. The DMCA could apply because of the anti-circumvention rules but that’s also kind of doubtful because emulation is fair use.

Nevertheless making an emulator for a current console so easily available so anyone can pirate games on release day is unfair to Nintendo and it should surprise no one that they would act.

Fair use is irrelevant to the anti-circumvention provisions (at least unless the Library of Congress explicitly sets out an exception, and they have not for emulation), and the statement that encryption is fair use is significantly more ambiguous than people hope it is (for a start neither of the relevant cases were heard in a high enough court to establish a significant precedent).

Maybe you're right, but it seems very strange that a series of bits, that is, data, not code, is a circumvention device.

Additionally, it does look like there are carveouts... The anti-circumvention methods need to "effectively control access", which, seems to me as a non lawyer, that if it's very easily broken that's not very effective. (Does DVD CSS still count for this?) The device needs to have no other purpose (homebrew anyone?). There are carveouts for reverse engineering in order to make a compatible product.

Anyway, IANAL, but ... it seems to me like this interpretation can be challenged in court? Does anyone know of examples of it being upheld? There was that prosecution of that Bowser guy, I'm guessing he took a plea deal.

The "effectively" means that it has the effect of, not whether it does it poorly.

Are these keys even necessary for emulating games with Dolphin?

In theory you can dump disk images pre-decrypted, but that would make the Steam version of the emulator incompatible with every disk dump tool and personal Wii game archive out there.

Plus, for preservation's sake, there at least needs to be some attention paid to 1:1 media dumps, as closely as possible.

Maybe we should just let the Streisand Effect take care of it.

I still have the infamous 09 F9 11... stuck in my head as a result of that.

Now you can also memorize 0xebe42a225e8593e448d9c5457381aaf7

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