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Comment by pprotas | Hacker News Reader

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?

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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.

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

> 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.

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...)

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