The solid legal theory behind Nintendo’s new emulator takedown effort

Ars Technica:

This weekend saw an exception to that rule, though, as Nintendo's lawyers formally asked Valve to cut off the planned Steam release of Wii and Gamecube emulator Dolphin. In a letter addressed to the Valve Legal Department (a copy of which was provided to Ars by the Dolphin Team), an attorney representing Nintendo of America requests that Valve take down Dolphin's "coming soon" Steam store page (which originally went up in March) and "ensure the emulator does not release on the Steam store moving forward." The letter exerts the company's "rights under the Digital Millennium Copyright Act (DMCA)'s Anti-Circumvention and Anti-Trafficking provisions," even though it doesn't take the form of a formal DMCA takedown request.

In fighting a decision like this, an emulator maker would usually be able to point to some robust legal precedents that protect emulation software as a general concept. But legal experts that spoke to Ars said that Nintendo's argument here might actually get around those precedents and present some legitimate legal problems for the Dolphin Team.

This silly cat and mouse game between Nintendo and emulators is childish. The only people getting rich off this are lawyers.

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"Solid legal theory"? Give me a break! This is all covered by Sega vs. Accolade; it was legal for Accolade to include Sega's copyright notice and this is no different. Plus there is an exception to the DMCA covering interoperability.

Minuous,

The legal theory is "we have expensive lawyers, and can spend millions litigating the case, you as a small developer will be bankrupt in a flash".

And it works almost all the time. Very solid theory in practice.

sukru,

The legal theory is "we have expensive lawyers, and can spend millions litigating the case, you as a small developer will be bankrupt in a flash".

And it works almost all the time. Very solid theory in practice.

+1 So true.

Turns out the issue is that Dolphin ships a decryption key that Nintendo claims copyright on, and a copyright claim on such a thing hasn't been legally tested before. This is a major reason other emulators require you provide your own BIOS [presumably dumped from your own hardware, but everyone knows you didn't].

dark2,

Turns out the issue is that Dolphin ships a decryption key that Nintendo claims copyright on, and a copyright claim on such a thing hasn't been legally tested before.

I am not familiar with these emulator cases, however what you’re saying sounds nearly identical to the decss case where the decryption key needed to decode DVDs was initially copied from a reverse engineered player.

In the DVD case, it was legally tested and the judge ordered that decss be taken down. But at the time people reacted by printing the decryption code on shirts and even setting it to music. So court orders became irrelevant and controlling the decryption keys became utterly futile. In theory, I guess the same legal battle could happen with game emulators. Steam themselves are unlikely to defy the courts, but if it were to come down to a fight with the public in a battle of numbers, as it did with DVDs, the court take down orders might be more effective & detrimental against fewer/weaker protestors this time around (game emulating is far more niche than movies) So conceivably the decryption key bans could stand.

There are provisions in the DMCA for circumvention for compatibility, so that might be a legal option. However the DMCA circumvention clause is only allowed when no alternative is readily available. So if Nintendo provides it's own emulators, then I have doubts that Dolphin's circumvention would be cleared by the court.It will be interesting to see where this goes.

Alfman,

That is a fair point. However as you mentioned DeCSS, there are alternatives around including decryption keys in the software.

If it all came down to having those keys, they could always compromise. (At least, if Valve were to be on their side to help against Nintendo). Like open source DVD players only supporting unencrypted content, they could do something similar. And have their own "DeNintendo" as a separate option.

Yet, again, against a litigative behemoth like Nintendo, it would be a very hard battle to fight.

sukru,

It seems like valve/steam wanted to clear this by Nintendo first, they don't intend to challenge Nintendo in a legal battle. But hypothetically they should be able to publish dolphin without any keys or copyrighted work. Dolphin could have a UI to allow the user to input keys and roms on their own. Obviously this would still upset Nintendo, but it’d be factually wrong to claim that steam would be distributing their copyrighted work.

Is there a case against steam distributing Dolphin if Dolphin users are inputting the keys themselves? Something like "facilitating copyright infringement"? I really don't know. I’d be curious to see what the courts would say about this.

Actually trying to reply to @Alfman. I guess I do not know either. IANAL.

That said, if Xerox was not sued for "facilitating copyright infringement" then I cannot imagine that it is a thing.

The thing is, those emulators could provide a reverse-engineered version of the BIOS (think how Compaq reverse-engineered the PC BIOS using clean-room techniques), they just can't be bothered to because BIOS files are so easy to find.

Instead, you can't reverse-engineer a key, it's just a number, so emulators that need a key are doomed to always ask from users to provide their own key.

kurkosdr,

You "can" kinda… reverse engineer a key. Modern computers can crack the DVD keys in seconds, and even larger ones can be done given the right hardware.

Blu-Ray's AACS is 128 bits, which is pretty much not possible, though; at least at consumer level. However it has already been leaked by other means: https://en.wikipedia.org/wiki/Illegal_number (It is literally the "free speech flag" at the moment).

Bottom line: older hardware with weaker encryption can be cracked on the fly. Never ones as you suggest will require acquiring the key by other means.

sukru,

You "can" kinda… reverse engineer a key. Modern computers can crack the DVD keys in seconds, and even larger ones can be done given the right hardware.

You probably already know this, but even at the time 40 bits was inadequate. It was the result of US crypto regulations where cryptography > 40 bits was prohibited by export restrictions. This is also the same reason WEP (used for wifi) was notoriously weak. Foreign versions of windows + IE also suffered at the hand of US regulators.

Still, even weak crypto counts as far as the DMCA is concerned, so we’re still not technically allowed to circumvent it even if we can unless our use fits under one of the allowed exceptions.

My understanding is that (as mentioned by Linus Tech Tips on one of their podcasts, can't remember original source), Japanese copyright laws requires you to very aggressively protect anything you have copyright for, otherwise you risk loosing your copyright. So that might be some of what's going on.

It's a big shame either way.

That's for trademarks.

You can't lose your copyright.

What I heard was that according to Japanese copyright law you had to the same kind of things you have to do about copyright in the US.

Here in Brazil you are allowed to circunvent any encription or security system if the system is not activelly supported by the company maker anymore. This ensures you can fix or patch any issues with the system and make it continue working. For example, you can decript a game's network code if the original servers were taken down and it does not work anymore.

Ugh I wish the US had a law like that. Companies shouldn't be able to just sit indefinitely on things they’re not making money from, or wipe out decades worth of knowledge and labor in their products the minute they go under.

rainbowsocks,

We do have provisions for reverse engineering & circumvention under the DMCA, however they are conditional, not automatic. They are all enumerated here under "‘(f ) REVERSE ENGINEERING". It is not light reading…

https://www.congress.gov/105/plaws/publ304/PLAW-105publ304.pdf

It does sound similar to the law in Brazil as described by protomank. To be clear though this only describes the conditions under which circumvention is allowed, but it doesn't nullify the copyrights themselves, you still need to own a legal copy.

Nintendo is really just hurting theme selves in the future. There is a lot of evidence that Nintendo used an emulator in the mini NES/ Supernes products.

I’m kind of torn on these kinds of things, piracy is wrong, but the way I do it is ok, where I’m just grabbing roms of games I’ve previously paid for.

At the same time, well Nintendo has seen the value of older titles and is making some of the available every now and then so going outside their control isn't strictly necessary.

Bill Shooter of Bul,

I’m kind of torn on these kinds of things, piracy is wrong, but the way I do it is ok, where I’m just grabbing roms of games I’ve previously paid for.

Are you aware of any case law covering instances like this where people pirated software they already owned to get rid of the DRM? I don't know how that would go. Realistically normal people don't have the resources to defend themselves from a heavy handed corporate lawsuit in court so they’ll probably take any settlement offer that costs less than the lawyers do.

At the same time, well Nintendo has seen the value of older titles and is making some of the available every now and then so going outside their control isn't strictly necessary.

It's probably in Nintendo's best interest to do that because the circumvention clauses of the DMCA stipulate that circumvention is only allowed when alternatives are not readily available. If Nintendo ensures the old works are readily available, it weakens the legal case for those who would claim the right to circumvent under the DMCA.

Are you aware of any case law covering instances like this where people pirated software they already owned to get rid of the DRM?

I think consensus is that the opposite is true, especially when the product is still being offered for sale.

However, if you purchased the cartridge, and still have it, you can then dump it yourself. There are even DIY options using raspberry pi: https://github.com/waterbury/SNES-Pi

Are you aware of any case law covering instances like this where people pirated software they already owned to get rid of the DRM?

UHD Blu-Ray discs are such a case, since their DRM doesn't work on newer computers because it relies on Intel's SGX extensions that Intel has removed from newer CPUs. So, if you don't have a spare HDMI port in your TV or don't want to spend on a UHD Blu-Ray player after buying a Blu-Ray drive for your PC, then it's DRM cracking time.

And yes, I know there are other sources of UHD content out there, but they don't have everything, and nothing matches the pixel-perfect goodness of UHD Blu-Ray (achieved thanks to the ample storage of those 100GB triple-layer discs).

Also, DRM cracking is useful for removing region locks from DVDs and Blu-Rays (the HD and 3D variety) imported from a "wrong" region (as arbitrarily defined by the content cartels that have apparently arbitrarily separated the world into separate regions when it comes to disc compatibility).

kurkosdr,

Yes, I agree there are several reasons legitimate owners might want to circumvent the DRM. I wanted to know if this has ever been legally tested in court?

My interpretation of the law is that we’re not legally allowed to do this unless our use case fits into one of the exemptions passed by the library of congress every three years. And to be honest, even the way those exemptions would be enforced is unclear particularly because they are temporary. For example, there was an exemption for security dongles that no longer worked in 2003 (or so), but the library of congress did not renew that exemption. So does this mean users who continue to bypass dongles after the exemption expired are now violating the DMCA? Would they be grandfathered in? It is unclear what is intended much less how it would be enforced in practice.

The thing is people are already running the Wii-U version of Zelda BOTW on their Steam Deck. Usually it's been a little more clear that the games aren't still out for sale and thus emulators aren't doing any real damage to sales, but that gets murky with games released for multiple generations of consoles.

This is the same kind of bone-headed nonsense that all the other DRM industries went through over the last few decades. Just as in every one of those other cases (music, for example, streaming as another) the right way to proceed is to give users what they want – a legal way to consume this software the way they want.

It makes 0 sense to me that Nintendo wouldn't just create their own store front for PC. Epic did it, Blizzard did it. Nintendo could just as easily. Or they could go the way of Sony, and release on the existing platforms (though, I don't think that's necessarily the right play). Nintendo should spend it's money building new revenue streams, instead of harassing enthusiastic users. This is dumb stuff. I’d imagine it could cut in to the longevity of their hardware, but the length of time they hold on to aging hardware isn't helping them anyway.

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