this post was submitted on 15 Aug 2023
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Steam Deck
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Except this is false. Emulation is legal per the DMCA, and this was settled decades ago. It's downloading ROMs that is illegal
Although I agree with you for the most part, as far as I understand it, there seems to be different layers to this.
Emulators are legal if they're built from ground up, but if they use any code from the actual system, it's illegal. For example, I think Dolphin tried to get on Steam, but they were disallowed because they used a "leaked copy of the Wii Common Code".
Feel free to correct me if I'm wrong. The piracy talk recently have been kind of interesting, because a couple of the emulator communities I'm involved in require proof of dump for any help such as Yuzu's Discord.
Actually, this is not the case. DMCA allows some amount on code to be duplicated, just not the whole thing. You're not allowed to copy everything, but copying some code is allowed.
Also, the encryption key that was copied in Dolphin is just a random string of letters and numbers. That's not copywritable, so no copyright infringement happened from including that in the software, regardless of what Nintendo claimed
They also are not permitted to bypass, enable, or decrypt any part of a content control system - even one as simple as ROT13. In fact, decrypting and format shifting (from cartridge or CD to storage, for example) without explicit permission is actually an infringing act, BUT it is not prohibited in certain special cases (known as "fair use") and if you are taken to court you can attempt to prove that your use was Fair under one or more of the legal sections dedicated to it. You are still infringing, but it is not illegal and there is no penalty for doing so. That is, as I state above, and very fine point in the law that is fun to argue but ultimately is just a die roll as to whether what you're doing produces enough smoke to get you targeted by content owners. Because if you get caught, you're probably going to lose - either directly, or your life savings in legal fees to prove your use was fair, and courts rarely award fees back to the defendant in these cases. (IANAL, but I have done work in performance rights, and worked with an IP lawyer in the business to ensure that everything we did was legal and defensible)
That's a fine distinction, and requires that no decryption or protection is removed as part of the emulation software - which is entirely true for a very nice, neat, theoretical legal argument. It's like saying Plex is designed for playing your format shifted media and there is nothing illegal about that, or that I arrange copyrighted songs for only for myself and never print them out, only perform them for my personal enjoyment or as part of a blanket license at a venue. All 100% legal, as long as nobody considers reality. I have no problem with any of it, but it's worth admitting that we're counting angels on the head of a pin.
(Note: I also run a plex server and I have format shifted my own physical media, of which I have kept the physical media and do not loan them out - as part of my collection).
This is false. The DMCA has an exemption specifically for bypassing access restrictions.
Also, inb4 the Dolphin topic, the encryption key that was included is legal. Emulators are allowed to copy small parts of code, just not all of it; and the encryption key is a randomized string of characters, which is not protected by copyright
It just so happens that my congressional representative, Boucher, was responsible for the language added which allows bypassing the restrictions, and there are very few conditions where that is permitted. There is research and there is the clause to preserve Fair Use (and other rights under copyright law), but that does not extend or cover the clause concerning traffiking in decryption software, unless that has been added by legal precedent in case law (that I'm unaware of). If you provide software to decrypt or assist someone in decryption, it violates the DMCA the way it was written. The use of decryption software for research or fair use is permitted, but it's illegal to supply it.
I recognize that it's a fine distinction, esp. for ephemeral works. Marijuana is a reasonable analogy in my state: it's legal (again, in my state) to grow and possess personal amounts, but it is illegal to sell it, or for anyone to sell it to you. Anyone who sells it is violating the law, even if that is the only way you can obtain it. In the case decrypting a file for Fair Use is use (legal); selling is trafficking (providing a decryption algorithm); growing for personal use (also legal) is writing your own software from scratch to decrypt. (this is where the analogy breaks down because it's legal to sell growing kits, but it's not legal to sell decryption kits.)