Nintendo pushes to remove Dolphin from Steam

[wanderingfool2]

6 hours ago, gjsman said:

Unfortunately, this legal case is actually obsolete. It was decided before the DMCA was law (and before the protections against “circumvention” were even written), and Nintendo’s first console to use digital signing and other DMCA-1201-protected countermeasures and digital signatures was the Wii. 
 

In which case, Sega v Accolade, if Sega had used digital signing and had the DMCA at the time, would very likely go for Sega.

It's not obsolete; also you should read what I was replying to; he was stating that Nintendo has precedence which there isn't.  Instead the precedence supports them being allowed to.

 

The DMCA didn't make the standing obsolete; like I've mentioned earlier they have provisions in regards to interoperability and also backing up which would nullify the rules of counter measures.

 

Even if the Library of Congress didn't put in exceptions, there would become an argument that if the number was floating around for so long it's no longer an "effective" form control of accessing the data.  It's a similar reason why VLC can get away with DVD encryption keys.

[demonix00]

11 hours ago, jagdtigger said:

If reverse engineering wasnt legal microsoft wouldve crushed wine(+proton) and reactos a very long time ago......

Except using proprietary code isn't which the Wii common keys are and is the only thing nintendo could go after the dolphin team for since the whole emulator was a clean room effort with no proprietary code in it (apart from stupidly using the Wii common key).

 

Although with the big N's latest open mouth, insert foot moment by stating that emulation stifles innovation, if I had a facepalm image to use it would go here.

[Zodiark1593]

1 hour ago, demonix00 said:

Except using proprietary code isn't which the Wii common keys are and is the only thing nintendo could go after the dolphin team for since the whole emulator was a clean room effort with no proprietary code in it (apart from stupidly using the Wii common key).

 

Although with the big N's latest open mouth, insert foot moment by stating that emulation stifles innovation, if I had a facepalm image to use it would go here.

Don’t really have much to say about Nintendo myself that is objectively worth anything, already voted with my wallet awhile ago. The og 3DS is my last Nintendo console, and I haven’t played anything on Switch (emulated or otherwise). I simply don’t have reason or desire to do business with them. 

[gjsman]

4 hours ago, wanderingfool2 said:

I've mentioned earlier they have provisions in regards to interoperability and also backing up which would nullify the rules of counter measures.

The Electronic Frontier Foundation has said those exceptions are actually almost useless.

 

Take the Interoperability exception. It protects reverse-engineering and breaking TPMs *only* for developing software that *doesn’t* break TPMs, according to the EFF. The Dolphin developers can’t be sued for breaking TPMs to develop Dolphin, but they *can* be sued for distributing TPM-breaking code or projects of their own.

 

Another example would be a DVD player. Breaking the digital locks to reverse-engineer it is legal. Distributing tools to break the locks to other people is illegal. And according to the EFF, that’s not even up for debate - it is settled law.

[gjsman]

5 hours ago, wanderingfool2 said:

It's a similar reason why VLC can get away with DVD encryption keys.

Incorrect. VLC is based in France where the DMCA does not bind. In the US, VLC is actually illegal to use which VLC lampshades on their legal page, if you don’t have a DMCA exception. Corporations often block the use of VLC for this reason. For a long time, the MPAA and MPEG LA actually had the ability to purchase individual patent licenses to use software like VLC; and if you are a corporation or a manufacturer like Dell, you often buy your Linux codecs and DVD playback functionality from Fluendo, a legally licensed provider, for ~$20 per device. Almost every company that uses Linux and multimedia together from Disney to Pixar to IBM does not use VLC but pays for licensing.

VLC’s website:

Quote

NB: In the USA, you should check out the US Copyright Office decision that allows circumvention in some cases.

If you actually read what those cases are, private home use never appears on the list. The EFF themselves says they have fought every rule making session for private DVD circumvention rights and failed, every time.

 

Also, the Librarian of Congress and the courts in RealPlayer, Psystar, etc have actually been exceedingly clear that breaking a key makes zero difference in legality. According to one analogy lifted straight from a court case, it’s still illegal to break into a secured area protected by an 80-year-old rusted lock. RealPlayer still lost a DMCA lawsuit after almost a decade after DVD copy protection was broken; and their argument that DVD copy protection was easy to break didn’t make it past one hearing. They ultimately paid a $4.5 million fine for breaking 11-years-cracked DRM in their product without a license. 
 

https://copyrightandtechnology.com/2010/03/04/mpaa-wins-settlement-in-realdvd-case/

[jagdtigger]

4 hours ago, demonix00 said:

code isn't which the Wii common keys are

Keys arent code, besides those were known for a decade now without nintendo acting so their copyright is pretty much void at this point. No sane judge would rule in their faver after that....

Edited May 30, 2023 by jagdtigger

[gjsman]

11 minutes ago, jagdtigger said:

decade now without nintendo acting so their copyright is pretty much void at this point. No sane judge would rule in their faver after that.

Keys aren’t copyrighted. Breaking TPMs is what is illegal. Keys are blocked because they are useful for breaking TPMs. However, even if you find a way to break a TPM *without* a key (like VLC with libdvdcss2, or a researcher who reversed HDCP 2.1 due to a logic flaw), that’s still illegal. The EFF has been fighting the government since 2016 for permission to allow a researcher to write about that HDCP flaw without getting sued. In the latest hearing a few months ago, the government said he could write the book at a high level, but distributing the code is a no-go and would be illegal despite containing *no* copyrighted keys or code.

 

https://www.eff.org/issues/coders/reverse-engineering-faq

 

Nintendo *does not need* to have copyright on the key or the code. They don’t even have to prove that. All they have to show is that it breaks copy-protection measures on the Wii. That’s it. They don’t have to show how strong those measures were. They don’t have to talk about how long ago they were broken. They don’t even necessarily need to argue whether the key is their property. Breaks TPMs, case closed. How it’s done? Irrelevant.

[gjsman]

5 hours ago, wanderingfool2 said:

that if the number was floating around for so long it's no longer an "effective" form control of accessing the data.  It's a similar reason why VLC can get away with DVD encryption keys

Also, while I am at it, the law does not follow your definition of effective. “Effective” in the DMCA doesn’t mean unbroken. Actually, the definition is so broad that the movie industry is in a lawsuit *right now* arguing that YouTube - which nobody would normally consider having DRM - contains TPMs, hoping to win to permanently kill YouTube-DL and similar. If they think they have a good chance to get *YouTube* considered to have legally-protected copy protection measures, Nintendo’s case would be a slam dunk.

 

Edit: Also, that case is on appeal. The first ruling was that Yout (a stream-ripper) *does* break TPMs on YouTube and that YouTube *does* have protections against circumvention. Yes, YouTube apparently has legally-protected copy protection, in an actual court case, from this year. Odds that you’ll convince them Nintendo doesn’t? Zero. Not a chance. 

[jagdtigger]

1 hour ago, gjsman said:

Breaking TPMs is what is illegal.

https://clinic.cyber.harvard.edu/2018/10/26/a-victory-for-software-preservation-dmca-exemption-granted-for-spn/

 

And this is the end of that.

[gjsman]

52 minutes ago, jagdtigger said:

And this is the end of that.

There’s always exceptions, but none that apply to you, me, or Dolphin developers.

 

Take your link, for example.
 

Quote

The final rule allows eligible libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired computer programs (including video games) to preserve computer programs and computer program-dependent materials. The final rule includes the SPN’s suggestion, in consideration of the opponents’ concerns about breadth, that the exemption be limited to computer programs that are no longer reasonably available in the commercial marketplace. The Library of Congress did create some limitations on the exemption, requiring that the computer program is not distributed outside the physical premises of the eligible library, archives, or museum.

So, a library can do it, as long as it’s no longer commercially available, and never leaves the premises. Also, breaking TPMs *is still illegal*, it is just that the library won’t be held liable though the tool developer still gets liability (normally both the tool developer and the user are liable). Use for defending Dolphin? Nothing.

 

And no, private individuals do not meet the legal standard for “archivist.” On top of that, the exceptions expire every three years and must be re-argued every time; so it’s status as of 2021 afterward might be completely different now than it was in 2018.

 

There are other exceptions too. You can legally use VLC and break copy-protection if you need it as an educator in a public classroom. Doesn’t change that VLC can still be sued (or, would be, if they had any US representation) - you as an individual just won’t be. Not helpful for private individuals or VLC itself.

[wanderingfool2]

6 hours ago, demonix00 said:

Except using proprietary code isn't which the Wii common keys are and is the only thing nintendo could go after the dolphin team for since the whole emulator was a clean room effort with no proprietary code in it (apart from stupidly using the Wii common key).

As far as I'm aware it's never been tested in court in regards to "illegal numbers".  Most get settled before.

 

2 hours ago, gjsman said:

RealPlayer still lost a DMCA lawsuit after almost a decade after DVD copy protection was broken; and their argument that DVD copy protection was easy to break didn’t make it past one hearing

And there we go, a conflation of facts.

 

They DID NOT lose the DMCA lawsuit, they SETTLED the lawsuit.  Two very different things.  (It was also fraught with contract violations)

 

3 hours ago, gjsman said:

Incorrect. VLC is based in France where the DMCA does not bind. In the US, VLC is actually illegal to use which VLC lampshades on their legal page, if you don’t have a DMCA exception. Corporations often block the use of VLC for this reason. For a long time, the MPAA and MPEG LA actually had the ability to purchase individual patent licenses to use software like VLC; and if you are a corporation or a manufacturer like Dell, you often buy your Linux codecs and DVD playback functionality from Fluendo, a legally licensed provider, for ~$20 per device. Almost every company that uses Linux and multimedia together from Disney to Pixar to IBM does not use VLC but pays for licensing.

While the company itself might be based in France, it doesn't mean they can't be touched by the DMCA.  A key example being any US servers hosting the file would be subject to the DMCA.   Until it actually gets tested in courts though you can't pretend that it's illegal.

 

It's like patent troll companies, just because they are successful in getting money from patents doesn't make their patents necessarily fully valid (there are cases where someone finally took them to court and their patent was invalidated...but not before they collected millions in fees).  The reason why some things haven't been tested is because the companies with the bigger pockets can drag things out in court until they are settled.

 

2 hours ago, gjsman said:

Nintendo *does not need* to have copyright on the key or the code. They don’t even have to prove that. All they have to show is that it breaks copy-protection measures on the Wii. That’s it. They don’t have to show how strong those measures were. They don’t have to talk about how long ago they were broken. They don’t even necessarily need to argue whether the key is their property. Breaks TPMs, case closed. How it’s done? Irrelevant.

Look at the library of congress exemptions.  It would protect for a lot of it, specifically in 2012 it was added in regards to interoperability for software.

 

The simple fact is, none of this has fully been tested in court and likely won't be (to the highest level).  Afterall, the supreme court has had to step in before where the lower courts get copyright law completely backwards in their rulings.

[Brooksie359]

On 5/27/2023 at 6:53 AM, WereCat said:

Not sure iv Valve decides to fight this but if anyone can it's probably them. I hope they'll at least try.

Why would valve fight this? They are a game hosting platform at that point are they going to fight every game that get DMCA. I am pretty sure valve will just comply with DMCA and be done with it because that is what they legally have to do and I see no reason for them to fight Nintendo in court for some random developers. 

[gjsman]

8 hours ago, wanderingfool2 said:

As far as I'm aware it's never been tested in court in regards to "illegal numbers".  Most get settled before.

There was one that was tested in court, Apple v Psystar, where Psystar claimed interoperability as a defense to break Apple’s locks to allow MacOS to run on PC hardware. They went through the whole legal process (never settled) and lost every hearing. They dragged it out with every technique imagineable and used every defense they could think of - and lost. Their application for relief from SCOTUS at the end of it all was denied. They were found liable for $2.4 million and went bankrupt.

 

Replace MacOS with Nintendo Switch games, and Apple with Nintendo, and Psystar with Dolphin/Yuzu, and you can see exactly how the legal case would proceed if both parties did not settle. Psystar was found guilty not just of copyright infringement; but it was specifically ruled that the decryption of MacOS was a DMCA violation. 

8 hours ago, wanderingfool2 said:

They DID NOT lose the DMCA lawsuit, they SETTLED the lawsuit.  Two very different things

Settling for $4.5 million isn’t losing then? Also the preliminary injunction against them was approved because the judge specifically ruled that it was highly probable their conduct would violate the DMCA, and that the case would very likely just from a brief observation end with RealPlayer found liable. They settled after the injunction clearly showed where it would end.

 

Also, you would settle. 5 years in prison for a single offense is no joke. Remind me what section of the DMCA Gary Bowser was convicted of violating? (Yes, Gary Bowser was convicted, in part, on Section 1201 violations. Not just general copyright infringement. That literally means that Gary Bowser was found guilty of breaking Nintendo’s legally protected TPMs and trafficking devices that did so, even before the piracy charges.)

 

So yeah, it’s all theoretical and not tested in court. It’s not like a guy didn’t just go to jail for it in addition to copyright infringement as a second issue. In case you don’t believe me, these are the actual charges he went to jail for:

 

Quote

The official charges are "Conspiracy to Circumvent Technological Measures and to Traffic in Circumvention Devices" and "Trafficking in Circumvention Devices", both of which are federal felonies in the United States.
 

https://www.nintendolife.com/news/2022/02/nintendo-hacker-gary-bowser-sentenced-to-three-years-in-jail

8 hours ago, wanderingfool2 said:

Look at the library of congress exemptions.  It would protect for a lot of it, specifically in 2012 it was added in regards to interoperability for software.

Can you find the latest 2021 version? Otherwise it has expired.

[Mark Kaine]

On 5/27/2023 at 6:13 PM, Zodiark1593 said:

Including the decryption keys is a pretty big oversight on the devs' part

i didn't read the article/ link  but is there any actual proof for this statement? 

 

 

i mean its a little odd. they included the decryption keys. before release? ? Couldn't they just remove them then, because there's surely no need to include them (afaik)

[wanderingfool2]

2 hours ago, gjsman said:

There was one that was tested in court, Apple v Psystar, where Psystar claimed interoperability as a defense to break Apple’s locks to allow MacOS to run on PC hardware. They went through the whole legal process (never settled) and lost every hearing. They dragged it out with every technique imagineable and used every defense they could think of - and lost. Their application for relief from SCOTUS at the end of it all was denied. They were found liable for $2.4 million and went bankrupt.

 

Replace MacOS with Nintendo Switch games, and Apple with Nintendo, and Psystar with Dolphin/Yuzu, and you can see exactly how the legal case would proceed if both parties did not settle. Psystar was found guilty not just of copyright infringement; but it was specifically ruled that the decryption of MacOS was a DMCA violation. 

If you are going to try talking about court cases, at least try to understand the reason for the ruling....since you again are abhorrently wrong in your conclusion.

 

If you haven't figured it out, let me point to a glaring issue that you "conveniently" ignored.  Psystar was welling their machines, WITH MacOS installed on them.  Specifically, they also created essentially a golden image which they applied which was a modified MacOS which violates the derivative work doctrine.  So no, this is not the same scenario as Dolphin.

 

2 hours ago, gjsman said:

Settling for $4.5 million isn’t losing then? Also the preliminary injunction against them was approved because the judge specifically ruled that it was highly probable their conduct would violate the DMCA, and that the case would very likely just from a brief observation end with RealPlayer found liable. They settled after the injunction clearly showed where it would end.

If you think settling is the same as losing then you are sorely wrong.  Settling doesn't even necessarily require an admission of guilt sometimes, it's just sometimes weighing the cost of the lawsuit vs settlement cost.  If you also read into it, you would have seen that the judge noted that some of the arguments might have merit; but given the full case wasn't able to presented no official ruling could be made.

 

https://www.imore.com/iphone/apples-ios-emulation-copyright-battle-with-corellium-is-over-for-now

This would be the closest in terms of the case with Nintendo, and even then it was ruled in favor of emulation.  (And yes, Corellium would have been required to break encryption in making and distributing this product).

 

2 hours ago, gjsman said:

Also, you would settle. 5 years in prison for a single offense is no joke. Remind me what section of the DMCA Gary Bowser was convicted of violating? (Yes, Gary Bowser was convicted, in part, on Section 1201 violations. Not just general copyright infringement. That literally means that Gary Bowser was found guilty of breaking Nintendo’s legally protected TPMs and trafficking devices that did so, even before the piracy charges.)

There is a difference in terms of creating a device that is marketed towards piracy where it's product itself was designed only to circumvent the protections vs an emulator that lets you play your games. 

 

[Zodiark1593]

9 hours ago, Mark Kaine said:

i didn't read the article/ link  but is there any actual proof for this statement? 

 

 

i mean its a little odd. they included the decryption keys. before release? ? Couldn't they just remove them then, because there's surely no need to include them (afaik)

The video from Modern Vintage Gamer is about as close as I can get to providing "real" proof, short of poring through the source code myself.

 

Gamecube games should probably function just fine without, however, Wii games utilize AES-128 encryption in their copy protection scheme, and I'm unsure we're at the point (even with extensive advancements on both CPUs and GPUs) that we could brute-force that quite yet (while the keys may be legally problematic, a more generic brute-force decryption tool, should better stand up to legal challenge). It's similar to how blu-ray copying software have to constantly update keys to function, as we cannot yet attack the encryption directly, and so the copy protection scheme isn't "truly" broken.

[Mark Kaine]

27 minutes ago, Zodiark1593 said:

The video from Modern Vintage Gamer is about as close as I can get to providing "real" proof, short of poring through the source code myself.

 

Gamecube games should probably function just fine without, however, Wii games utilize AES-128 encryption in their copy protection scheme, and I'm unsure we're at the point (even with extensive advancements on both CPUs and GPUs) that we could brute-force that quite yet (while the keys may be legally problematic, a more generic brute-force decryption tool, should better stand up to legal challenge). It's similar to how blu-ray copying software have to constantly update keys to function, as we cannot yet attack the encryption directly, and so the copy protection scheme isn't "truly" broken.

I don't know exactly how it works, but what im saying is, why ship the "decryption keys" with the emulator,  it seems pretty much every other emulator gets around this problem easily  - again,  i don't know know the details but if that wasn't the case how come for example Sony doesn't shut down the various playstation emulators? 

 

edit: note im not saying you do not *need* the keys, im saying you do not need to *ship* them, because that's freaking illegal, yo. Get what im saying, other emulators, to my knowledge, do not have this problem because they do not offer anything illegal,  Sony (for example) can sue them as much they want and no dice (theoretically speaking) 

 

[wanderingfool2]

13 hours ago, Mark Kaine said:

I don't know exactly how it works, but what im saying is, why ship the "decryption keys" with the emulator,  it seems pretty much every other emulator gets around this problem easily  - again,  i don't know know the details but if that wasn't the case how come for example Sony doesn't shut down the various playstation emulators? 

In the case of the PS2 and prior emulators you had to provide the bios file; and that's how the team essentially got around most of the stuff (I'm actually not sure if they managed to get around that though by emulating the bios).  Even then, you had a few bioses that were also tainted back in the day iirc.

 

A major reason to ship with the decryption keys is that it makes the emulator a lot more accessible to everyone.  If they were to ship it without the decryption keys, then it would be up to everyone to find out what the key was and input it in.  That creates an issue in that sites that actively post it would be DCMA'd (because in that case they don't have a piece of software behind it that they can argue fair use and other things), essentially making any site that hosts it being in a place that doesn't have any ties to the US (they could have Google remove it from search).  It's a lot easier as well when the number is just publish to wrap them up in a lawsuit, which would have an injunction, and at that stage no one has the money to defend themselves properly.

 

The biggest issue is that these things haven't been tested really in courts until the end; so while it's still an "illegal number" I don't think it's truly been tested.  Then again, it's similar to what I've said in the case where the news  reporter was threatened prosecution..."base64" can be classified as a security mechanism according to the law for computer hacking laws.

 

As a note as well, back in 1999/2000 Sony did sue over a Playstation emulator...they lost, fair use argument, and that set another precedent that emulators on a whole were legal.  After that I think Sony had a bit more of an open approach to emulators...even going as far as using the open source emulator in their Playstation classic.

[divito]

On 5/30/2023 at 9:27 AM, gjsman said:

Settling for $4.5 million isn’t losing then? Also the preliminary injunction against them was approved because the judge specifically ruled that it was highly probable their conduct would violate the DMCA, and that the case would very likely just from a brief observation end with RealPlayer found liable. They settled after the injunction clearly showed where it would end.

Settling is absolutely not the same as losing. Settling occurs when neither party is sure what the end result will be, and/or that attempting to reach a legal resolution through the court is prohibitively expensive to gamble. One party wants to pay $0, the other party wants to win a ton of damages. Settling is just finding a reasonable number for both parties to avoid shelling out even more in legal fees.