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Comment by pprotas | Hacker News Reader

Why are emulators illegal? I understand that they are associated with piracy because people play pirates games on them. But it’s like banning BitTorrent because it allows you to pirate, or Windows because you can play pirates games on it as well.

The article mentions that emulators “illegally circumvent Nintendo’s technological protection measures and run illegal copies of Switch games.”. But which law makes it illegal to circumvent such systems? And what about Wii-only emulators? Surely they have nothing to do with the safety systems of the Switch.

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> But which law makes it illegal to circumvent such systems?

DMCA section 1201

You are right, it says it right there:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

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

Can the emulators remove the circumvention code to avoid the DMCA takedown?

Isn't the whole emulator a circumvention? It circumvents the hardware which "effectively controls access to a work", which is the console itself.

Not exactly. Clean room reimpmentations are fine, and has been upheld in court. I think the copyright office even has a published exemption for it.

The issue is when you bypass encryption keys and systems.

Thanks for the clarification and the info.

my mouse and keyboard is circumventing me manually flipping transistors in my processor

Could "effectively controls access" be attacked here? The purpose of the hardware is not to control access.

It’s not hardware, it’s encryption and decryption systems.

A Nintendo Switch is a non-hardware decryption system?

Not even for research purposes?

Research would be considered fair use. But you can’t just claim research and get a pass, it has to hold up in court.

There are exemptions that get updated by the Library of Congress every few years. The current one is from 2021: https://www.govinfo.gov/content/pkg/FR-2021-10-28/pdf/2021-2...

You get a few exemptions for research for security reasons, but it does require it to be on "a lawfully acquired device or machine on which the computer program operates solely". So an emulator doesn't fit the bill at all.

Video games are mentioned: you're allowed to circumvent DRM for games that no longer have their online servers running.

That is interesting. I wonder if there are any Switch games which have had their servers turned of and if an emulator can be argued to be made for the purpose of supporting that game only (that it then happens to play other games...)

DMCA § 1201 makes reverse engineering modern consoles illegal.

Any modern game console has some form of decryption, which can be argued to prevent access.

This is when we run into the chicken/egg problem because you can't write emulation without violating 1201. It is also in part the argumentation Nintendo used in the yuzu case.

Not just modern consoles. Nintendo has had ‘security’ hardware built in since the NES (the CIC chip)

The difference is those security chips were used to prevent unlicensed games, not to prevent the games from being played on unlicensed consoles (emulators).

A NES clone without a CIC will play games fine.

One argument that I’d like to see made is that DMCA takedown requests, which are intended to enforce copyright is the wrong enforcement mechanism because the 9th Circuit, in SONY v. CONNECTIX said that the functional aspects of emulation can only be protected under patent law.

Ok, what if the emulator that is distributed is not functional, but to make it into a functional emulator, you have to (1) compile it, OR (2) make small modifications to it (that are distributed through a different channel), or both.

> that effectively controls access

Not very effective, is it?

I assume this means something else in lawyer speak.

Effective means "has an effect".

i.e. you cannot put a piece of paper in the box with the words "this is a technical protection mechanism" and claim it is.

But it doesn't mean that what you do has to be infailable, or meet some arbitrary level of doing it's job well, no.

Overriding DMCA it's legal for interoperation purposes.

IANAL; Afaik only in the EU, it even allows non-cleanroom reverse engineering.

EU resident here. Reverse engineering in general is allowed, but decompiling software adds a good number of restrictions[1].

Disclaimer: I have talked to lawyers. Our company makes industrial IoT loggers and during my career I have only been given appropriate documentation twice by manufacturers. Most of the systems have been reverse engineered through packet capture.

[1] https://vidstromlabs.com/blog/the-legal-boundaries-of-revers...

> given appropriate documentation

Even with documentation you still get garbadge. I've had to decompile a HSM firmware to figure out what the actual input of functions was since the manufacturer kept claiming the documentation was correct. It wasn't even close. Only after I provided the solution to my own support ticket they changed the documentation (why bother paying for full support...).

I've gotten a bit of empathy for the poor front support guy since he'd have to keep complaining to the developers which kept saying "no it's fine as documented".

Brazil also allows non-clean room reverse engineering (I still don't understand why we're not a rev-eng tech hub, come to Brazil my Ghidra/IDA users) and have much saner laws regarding piracy (like it being legal for 24h for testing), I've only ever seen big pirates (those who have piracy streaming websites) getting busted, I don't ever use a VPN and had no issues whatsoever with my piracy (have been a pirate for almost 20yrs now).

>> But which law makes it illegal to circumvent such systems?

> DMCA section 1201

...which is an unambiguous observation that DMCA section 1201 is in conflict with the 1st amendment.

In the US. The DMCA is only relevant because GitHub is operated by a US company. Nintendo would have to try to make the same arguments for EU law, e.g., if the software in question would be hosted in the EU. That might be more complicated.

Emulators per se are not illegal. Most likely.

If emulators in general were illegal, Nintendo would be in trouble too and would be obliged to remove the emulated games it sells on the Virtual Console.

You believe the sword is double edged, fair and cuts both ways.

It does not.

Beautiful, that is poetry man!

Well no, any theory of emulators being illegal would be under the DMCA, which bans DRM circumvention without the authority of the copyright owner. But Nintendo is selling games with said authority, so it wouldn't apply.

There's a difference between if I try and sell you a digital copy of Super Metroid and if Nintendo does, right? Nintendo's argument would be that the emulator itself is no different.

some argue that emulation infringes on their patents, but i am not big on the concept of monopolizing ideas myself.

Well, yeah, the best precedent we have is the Sony and Bleem case. But the funny thing about common law systems is the precedents are really important until someone tries again and the precedent is suddenly thrown out.

This is a good question. In addition to an answer, if someone could give a high level but technical overview about how the Nintendo Switch encryption works and how the emulators work around it I'd be grateful.

DMCA makes it illegal to circumvent DRM. Whether or not it's good DRM is irrelevant. The classic example would be DVDs that are encrypted with CSS and 40-bit keys. Because you need to be able to decrypt the DVD to be able to play the video, if your software doesn't have permission to playback (encrypted) DVDs, you're circumventing DRM. A DVD ripping software maker has lost this in court: https://w.wiki/9yNu

So like how DVDs are encrypted, all Switch games are encrypted. Except with good AES encryption and proper key sizes. This started with games in the Wii/PS3 generation, so emulators for systems before that would be fine.

Also I've now learned that wikipedia has a URL shortener. Because Hacker News eats the period at the end of the wikipedia article title.

Yes, but how does that apply to the Nintendo Switch and Yuzu. Did they actually extract the AES key from real hardware and include it in the emulator?

It applies to Yuzu because it breaks the encryption on Switch games without the copyright holder's permissions. And it's simple to argue that the encryption is for DRM purposes, like CSS for DVDs.

Nintendo's argument in the filing was that it effectively did, as the website instructed people on how to extract the keys, and that the software did real time decryption for which there was no legitimate source of keys.

That didn't get tested in court, but I suspect it would have succeeded (this is not legal advice).

So, the emulator did not contain the key but it made it easy to use one if you had one? Is that a suitable description?

How useful would the emulator without the key be? I guess you could still write and play (and share) your own software. Is that what people call "homebrew" in the Nintendo Switch context?

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