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.
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.
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.
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.
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.
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).
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?
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.
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.
Not just modern consoles. Nintendo has had ‘security’ hardware built in since the NES (the CIC chip)
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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.
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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.
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Not even for research purposes?
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.
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Research would be considered fair use. But you can’t just claim research and get a pass, it has to hold up in court.
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.
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...
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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.