Comment by bitwize | Hacker News Reader

Comment by bitwize | Hacker News Reader

Parent Full thread

> That's _not_ how it works and there are many court cases on point here.

Those court cases were overridden by Congress... when they passed the DMCA.

Under the DMCA, IT IS A CRIME to:

1) circumvent an "effective" copyright measure for any purpose, except specific, delineated purposes and cases which must be approved and reapproved by the Librarian of Congress every 3 years;

2) traffic in the means or technology to so circumvent a copy protection measure, with no exceptions.

The definition of "effective" is so weak that it applies to anything, even a bit of JavaScript that intercepts right click so you can't "Save Image As". It basically means, would the copy protection measure prevent copying "during the normal course of its operation". I.e., if it's buggy, employs weak crypto, or is otherwise trivially defeated, too bad. You can still catch federal time for breaking it.

In order for a Switch emulator to work properly, the copy protection on the game must be defeated. So even if you dump it yourself and a court somehow rules that copy to be fair use, YOU ARE STILL COMMITTING A CRIME by the very act of dumping it. Therefore, it is illegal to run a Switch emulator to play legitimate Switch games, irrespective of whether those games are "legal" copies or not. And a court may rule that Switch emulators are illegal to distribute as well, since they only have illegal uses.

I am not a lawyer, so I recommend you find yourself a good one if you want to mess around with Switch emulation. Best bet is to not get involved with it at all. Forget about preservation. The Switch and its games are not yours to preserve.

How does an after fact of someone's supposed illegal activity become itself illegal in a case like this? Especially in Brazil if I'm assuming correctly.

I never heard of a case declaring a non-circumvent tool to be illegal just because it may indirectly rely on people dumping it first. If so, then even project64 would be illegal too as bypassing a physical cartridge was ruled to also bypass copy protection.

Also the tool was in another specific country, which I heard doesn't have copy protection laws so the idea that it itself becomes illegal because of the actions in another country sounds even more silly.

I am not a lawyer by the way.

If an emulator isn't actually enabling the circumvention (the DRM has already been circumvented) it does seem a serious stretch to apply it to them.

I wouldn't want to have to pay lawyers to litigate that, mind you...

> except specific, delineated purposes and cases which must be approved and reapproved by the Librarian of Congress every 3 years;

1201(c)(1) says:

> Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

Wouldn't that apply to DMCA 1201(a)(1) - the part that bans circumvention of copy protection? i.e. since there's US[0] caselaw in favor of format-shifting[1], it's probably still legal to format shift DRM-encumbered material, even if it's illegal to tell people how to do that.

Regardless, you probably don't need to tell people - or at least, private citizens not fearing prosecution from Nintendo for unrelated matters - not to dump their own games, because it's extremely unlikely for anyone to ever get caught doing so. Dumping your own games and running them in an emulator leaves little evidence. In fact, that's why DMCA 1201(a)(2) has no exceptions. DMCA exists to take copying tools away from people who are not legible to copyright holders.

[0] The biggest split between US and UK copyright law is actually just format-shifting. In the UK it's not only illegal to format-shift, but a law to legalize it was struck down on the basis that copyright holders need to be paid for lost sales of the same work in a different format.

[1] RIAA v. Diamond, which notably overcame the Audio Home Recording Act, an even more draconian law on digital music recording technology that mandated specific DRM systems on all digital recordings.

What you need to understand is that Stop Killing Games and future initiatives to come are about changing the law. You arguing about current law means nothing when the whole point is to change it.

Anticircumvention laws were passed in many countries to conform to international treaties. They cannot be changed without violating international law.

If you have difficulty understanding why these treaties were signed and laws passed, perhaps ask someone who makes their living in a creative field (programming doesn't count). Ask them what computers and the internet would have done to their livelihood without DRM and the strong legal protections surrounding it.

> Forget about preservation. The Switch and its games are not yours to preserve.

That's false. I own this Switch and I own the games I purchased on it. I ripped the games and I'm playing the new Zelda on my steam deck right now.

Bureaucrats and capitalists can write silly things on paper all they want, the truth of my ownership is self evident and obvious. I haven't done anything wrong and it's incredibly cynical to argue I have.

If I get fined or go to jail for it, it's just another absurdity. I'm not going to lobotomize myself so I can live in lala land with the bureaucrats and understand their clown world ethics, let them punish me if they catch me I guess.

Reply on news.ycombinator.com