#dmca 1201

[mostlysignssomeportents]

The US Copyright Office frees the McFlurry

I'll be in TUCSON, AZ from November 8-10: I'm the GUEST OF HONOR at the TUSCON SCIENCE FICTION CONVENTION.

I have spent a quarter century obsessed with the weirdest corner of the weirdest section of the worst internet law on the US statute books: Section 1201 of the Digital Millennium Copyright Act, the 1998 law that makes it a felony to help someone change how their own computer works so it serves them, rather than a distant corporation.

Under DMCA 1201, giving someone a tool to "bypass an access control for a copyrighted work" is a felony punishable by a 5-year prison sentence and a $500k fine – for a first offense. This law can refer to access controls for traditional copyrighted works, like movies. Under DMCA 1201, if you help someone with photosensitive epilepsy add a plug-in to the Netflix player in their browser that blocks strobing pictures that can trigger seizures, you're a felon:

https://lists.w3.org/Archives/Public/public-html-media/2017Jul/0005.html

But software is a copyrighted work, and everything from printer cartridges to car-engine parts have software in them. If the manufacturer puts an "access control" on that software, they can send their customers (and competitors) to prison for passing around tools to help them fix their cars or use third-party ink.

Now, even though the DMCA is a copyright law (that's what the "C" in DMCA stands for, after all); and even though blocking video strobes, using third party ink, and fixing your car are not copyright violations, the DMCA can still send you to prison, for a long-ass time for doing these things, provided the manufacturer designs their product so that using it the way that suits you best involves getting around an "access control."

As you might expect, this is quite a tempting proposition for any manufacturer hoping to enshittify their products, because they know you can't legally disenshittify them. These access controls have metastasized into every kind of device imaginable.

Garage-door openers:

https://pluralistic.net/2023/11/09/lead-me-not-into-temptation/#chamberlain

Refrigerators:

https://pluralistic.net/2020/06/12/digital-feudalism/#filtergate

Dishwashers:

https://pluralistic.net/2021/05/03/cassette-rewinder/#disher-bob

Treadmills:

https://pluralistic.net/2021/06/22/vapescreen/#jane-get-me-off-this-crazy-thing

Tractors:

https://pluralistic.net/2021/04/23/reputation-laundry/#deere-john

Cars:

https://pluralistic.net/2023/07/28/edison-not-tesla/#demon-haunted-world

Printers:

https://pluralistic.net/2022/08/07/inky-wretches/#epson-salty

And even printer paper:

https://pluralistic.net/2022/02/16/unauthorized-paper/#dymo-550

DMCA 1201 is the brainchild of Bruce Lehmann, Bill Clinton's Copyright Czar, who was repeatedly warned that cancerous proliferation this was the foreseeable, inevitable outcome of his pet policy. As a sop to his critics, Lehman added a largely ornamental safety valve to his law, ordering the US Copyright Office to invite submissions every three years petitioning for "use exemptions" to the blanket ban on circumventing access-controls.

I call this "ornamental" because if the Copyright Office thinks that, say, it should be legal for you to bypass an access control to use third-party ink in your printer, or a third-party app store in your phone, all they can do under DMCA 1201 is grant you the right to use a circumvention tool. But they can't give you the right to acquire that tool.

I know that sounds confusing, but that's only because it's very, very stupid. How stupid? Well, in 2001, the US Trade Representative arm-twisted the EU into adopting its own version of this law (Article 6 of the EUCD), and in 2003, Norway added the law to its lawbooks. On the eve of that addition, I traveled to Oslo to debate the minister involved:

https://pluralistic.net/2021/10/28/clintons-ghost/#felony-contempt-of-business-model

The minister praised his law, explaining that it gave blind people the right to bypass access controls on ebooks so that they could feed them to screen readers, Braille printers, and other assistive tools. OK, I said, but how do they get the software that jailbreaks their ebooks so they can make use of this exemption? Am I allowed to give them that tool?

No, the minister said, you're not allowed to do that, that would be a crime.

Is the Norwegian government allowed to give them that tool? No. How about a blind rights advocacy group? No, not them either. A university computer science department? Nope. A commercial vendor? Certainly not.

No, the minister explained, under his law, a blind person would be expected to personally reverse engineer a program like Adobe E-Reader, in hopes of discovering a defect that they could exploit by writing a program to extract the ebook text.

Oh, I said. But if a blind person did manage to do this, could they supply that tool to other blind people?

Well, no, the minister said. Each and every blind person must personally – without any help from anyone else – figure out how to reverse-engineer the ebook program, and then individually author their own alternative reader program that worked with the text of their ebooks.

That is what is meant by a use exemption without a tools exemption. It's useless. A sick joke, even.

The US Copyright Office has been valiantly holding exemptions proceedings every three years since the start of this century, and they've granted many sensible exemptions, including ones to benefit people with disabilities, or to let you jailbreak your phone, or let media professors extract video clips from DVDs, and so on. Tens of thousands of person-hours have been flushed into this pointless exercise, generating a long list of things you are now technically allowed to do, but only if you are a reverse-engineering specialist type of computer programmer who can manage the process from beginning to end in total isolation and secrecy.

But there is one kind of use exception the Copyright Office can grant that is potentially game-changing: an exemption for decoding diagnostic codes.

You see, DMCA 1201 has been a critical weapon for the corporate anti-repair movement. By scrambling error codes in cars, tractors, appliances, insulin pumps, phones and other devices, manufacturers can wage war on independent repair, depriving third-party technicians of the diagnostic information they need to figure out how to fix your stuff and keep it going.

This is bad enough in normal times, but during the acute phase of the covid pandemic, hospitals found themselves unable to maintain their ventilators because of access controls. Nearly all ventilators come from a single med-tech monopolist, Medtronic, which charges hospitals hundreds of dollars to dispatch their own repair technicians to fix its products. But when covid ended nearly all travel, Medtronic could no longer provide on-site calls. Thankfully, an anonymous hacker started building homemade (illegal) circumvention devices to let hospital technicians fix the ventilators themselves, improvising housings for them from old clock radios, guitar pedals and whatever else was to hand, then mailing them anonymously to hospitals:

https://pluralistic.net/2020/07/10/flintstone-delano-roosevelt/#medtronic-again

Once a manufacturer monopolizes repair in this way, they can force you to use their official service depots, charging you as much as they'd like; requiring you to use their official, expensive replacement parts; and dictating when your gadget is "too broken to fix," forcing you to buy a new one. That's bad enough when we're talking about refusing to fix a phone so you buy a new one – but imagine having a spinal injury and relying on a $100,000 exoskeleton to get from place to place and prevent muscle wasting, clots, and other immobility-related conditions, only to have the manufacturer decide that the gadget is too old to fix and refusing to give you the technical assistance to replace a watch battery so that you can get around again:

https://www.theverge.com/2024/9/26/24255074/former-jockey-michael-straight-exoskeleton-repair-battery

When the US Copyright Office grants a use exemption for extracting diagnostic codes from a busted device, they empower repair advocates to put that gadget up on a workbench and torture it into giving up those codes. The codes can then be integrated into an unofficial diagnostic tool, one that can make sense of the scrambled, obfuscated error codes that a device sends when it breaks – without having to unscramble them. In other words, only the company that makes the diagnostic tool has to bypass an access control, but the people who use that tool later do not violate DMCA 1201.

This is all relevant this month because the US Copyright Office just released the latest batch of 1201 exemptions, and among them is the right to circumvent access controls "allowing for repair of retail-level food preparation equipment":

https://publicknowledge.org/public-knowledge-ifixit-free-the-mcflurry-win-copyright-office-dmca-exemption-for-ice-cream-machines/

While this covers all kinds of food prep gear, the exemption request – filed by Public Knowledge and Ifixit – was inspired by the bizarre war over the tragically fragile McFlurry machine. These machines – which extrude soft-serve frozen desserts – are notoriously failure-prone, with 5-16% of them broken at any given time. Taylor, the giant kitchen tech company that makes the machines, charges franchisees a fortune to repair them, producing a steady stream of profits for the company.

This sleazy business prompted some ice-cream hackers to found a startup called Kytch, a high-powered automation and diagnostic tool that was hugely popular with McDonald's franchisees (the gadget was partially designed by the legendary hardware hacker Andrew "bunnie" Huang!).

In response, Taylor played dirty, making a less-capable clone of the Kytch, trying to buy Kytch out, and teaming up with McDonald's corporate to bombard franchisees with legal scare-stories about the dangers of using a Kytch to keep their soft-serve flowing, thanks to DMCA 1201:

https://pluralistic.net/2021/04/20/euthanize-rentier-enablers/#cold-war

Kytch isn't the only beneficiary of the new exemption: all kinds of industrial kitchen equipment is covered. In upholding the Right to Repair, the Copyright Office overruled objections of some of its closest historical allies, the Entertainment Software Association, Motion Picture Association, and Recording Industry Association of America, who all sided with Taylor and McDonald's and opposed the exemption:

https://arstechnica.com/tech-policy/2024/10/us-copyright-office-frees-the-mcflurry-allowing-repair-of-ice-cream-machines/

This is literally the only useful kind of DMCA 1201 exemption the Copyright Office can grant, and the fact that they granted it (along with a similar exemption for medical devices) is a welcome bright spot. But make no mistake, the fact that we finally found a narrow way in which DMCA 1201 can be made slightly less stupid does not redeem this outrageous law. It should still be repealed and condemned to the scrapheap of history.

Tor Books as just published two new, free LITTLE BROTHER stories: VIGILANT, about creepy surveillance in distance education; and SPILL, about oil pipelines and indigenous landback.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/10/28/mcbroken/#my-milkshake-brings-all-the-lawyers-to-the-yard

Image: Cryteria (modified) https://commons.wikimedia.org/wiki/File:HAL9000.svg

CC BY 3.0 https://creativecommons.org/licenses/by/3.0/deed.en

[probablyasocialecologist]

Fifty per cent of web users are running ad blockers. Zero per cent of app users are running ad blockers, because adding a blocker to an app requires that you first remove its encryption, and that’s a felony. (Jay Freeman, the American businessman and engineer, calls this “felony contempt of business-model”.) So when someone in a boardroom says, “Let’s make our ads 20 per cent more obnoxious and get a 2 per cent revenue increase,” no one objects that this might prompt users to google, “How do I block ads?” After all, the answer is, you can’t. Indeed, it’s more likely that someone in that boardroom will say, “Let’s make our ads 100 per cent more obnoxious and get a 10 per cent revenue increase.” (This is why every company wants you to install an app instead of using its website.) There’s no reason that gig workers who are facing algorithmic wage discrimination couldn’t install a counter-app that co-ordinated among all the Uber drivers to reject all jobs unless they reach a certain pay threshold. No reason except felony contempt of business model, the threat that the toolsmiths who built that counter-app would go broke or land in prison, for violating DMCA 1201, the Computer Fraud and Abuse Act, trademark, copyright, patent, contract, trade secrecy, nondisclosure and noncompete or, in other words, “IP law”. IP isn’t just short for intellectual property. It’s a euphemism for “a law that lets me reach beyond the walls of my company and control the conduct of my critics, competitors and customers”. And “app” is just a euphemism for “a web page wrapped in enough IP to make it a felony to mod it, to protect the labour, consumer and privacy rights of its user”.

[yesterdays-xkcd]

I spent more time trying to get an audible.com audiobook playing than it took to listen to the book. I have lost every other piece of DRM-locked music that I ever paid for.

Steal This Comic [Explained]

Transcript Under the Cut

Black Hat: Thinking of buying from audible.com or iTunes? Black Hat: Remember, if you pirate something, it's yours for life. You can take it anywhere and it will always work.

[There is a flowchart whose paths are (You're a Criminal)<-Pirate<-(Buy or Pirate)->Buy->(Things Change)->(You Try to Recover Your Collection)->(You're a Criminal)]

Black Hat: But if you buy DRM-locked media, and you ever switch operating systems or new technology comes along, your collection could be lost. Black Hat: And if you try to keep it, you'll be a criminal (DMCA 1201). Black Hat: So remember: if you want a collection you can count on, PIRATE IT Black Hat: Hey, you'll be a criminal either way. (If you don't like this, demand DRM-free files)

[persephinae]

U.S. Copyright Office Presses 'Pause' on DMCA Exemption for Video Games

By Lydia Leung, LLB | Last updated on November 08, 2024

When we think of a library, we picture never-ending shelves of books; the world's knowledge available to us at the touch of a finger. But nowadays, it's not just physical records that libraries collect. Many now lend video games to their members, providing their local communities with entertainment while helping preserve the software for future generations.

The recent decision by the U.S. Copyright Office (USCO) to reject an exemption to the DMCA for video games in libraries' collections has put that practice into question. The decision prevents video games from being accessed remotely by researchers. While some in the games industry view this ruling as a win for rights holders, others see it as a major setback for arts research, especially compared to researchers in other fields with "routine and regular access" to digital archives.

What Is The DMCA?

Passed in 1998, the Digital Millennium Copyright Act (DMCA) brought the U.S. in line with treaties of the World Intellectual Property Organization (WIPO), updating copyright law for the digital age. Section 1201 of the DMCA criminalizes the "circumvention of copyright protection systems" that prevent unauthorized access to copyrighted works, such as reading encrypted optical discs or removing copy restrictions from electronic documents.

Exemptions are made for some uses, including for nonprofit libraries, archives and educational institutions (section 1201(d)), as long as a "good faith" determination is made. Libraries are permitted to create digital copies of obsolete works for purpose of preservation, but those works must not be commercially available for a "reasonable price" and can only be accessed onsite.

The Petition

The Video Game History Foundation (VGHF) has been working with the Software Preservation Network (SPN) since 2021 on a petition to the U.S. Copyright Office, proposing that the DMCA digital copying exemption be expanded to allow access to games outside of the physical premises of an institution. A study published by the VGHF in July 2023 estimated that 87% of video games released in the US before 2010 are "critically endangered" and inaccessible, being out of print in either physical or digital form. Options to play classic games are limited as many require vintage hardware or are no longer available on a digital storefront, potentially pushing consumers and researchers towards piracy as the most convenient means of access.

The petition's main argument is framed from the perspective of fair use: works kept by archives and collections are exempt from copyright infringement laws if they are used for purposes such as research or teaching. To enable this, the SPN proposed a system of user vetting and copyright notices, allowing institutions to restrict access only to users who submit a research request detailing the scope of their project and providing notices to remind them that their access is subject to copyright law.

The requirement of having to request specific access ensures that games are being used for research purposes, with the SPN citing "academic literacy" as a way of filtering out users planning to access them for entertainment. The USCO already allows institutions to lend other forms of media remotely, and the SPN argued that the DMCA's stringent rules around distribution of software programs places impediments on video game scholarship that are not present in other disciplines.

Arguments Against

The Entertainment Software Association (ESA), a trade association representing the U.S. video game industry, opposed the SPN petition, stating that the exemption would leave rights owners insufficiently protected and that the market for classic video games would be damaged. The SPN's proposed method of fair use vetting was dismissed by the ESA as "illusory", arguing that this was not enough justification for the breadth of use they would enable. It would be too difficult for libraries to supervise multiple users remotely accessing games, thus enabling usage for entertainment purposes.

Furthermore, the ESA contended that the market for classic video games is "vibrant and growing", citing the number of titles currently available on digital storefronts such as the Xbox Game Pass, not to mention frequent re-releases of individual titles on modern systems. That a game is "out of print" does not mean it is lost forever, only that the copyright owner decided not to put it on the market. Allowing widespread remote access to classic games would present a serious risk to the market and prevent copyright owners from enforcing their copyrights.

The USCO Ruling

The USCO observed that, for a fair use exemption, access to the games would have to be guarded against recreational use by containing "appropriately tailored restrictions". The view taken by the ESA on the SPN's proposed restrictions was echoed by the USCO, which ruled that they were not specific enough to prevent market harm and that the SPN had not met the burden of showing that allowing simultaneous remote access by multiple users was likely to be fair.

Regarding the claims of market damage put forth by the ESA, the USCO acknowledged the evidence presented of a "substantial market" for classic video games, and the SPN's concession that the industry has made a greater effort in recent years to reissue older games. Considering these arguments, the Register ultimately rejected the petition, but recommended clarifying the wording used in the DMCA to reflect that a computer program may be accessed by as many individuals as the institution owns copies.

What Does This Mean?

As a newer form of digital media, U.S. law has yet to settle on a definitive classification of what copyrights arise from a video game. A common view is for games to be treated as computer software and for the source code to be considered a literary work. However, unlike "traditional" literary works such as books or newspapers, the interactive nature of a video game makes regulating access to it more complicated.

Games are often limited to their corresponding hardware, potentially leading to research costs going up as researchers may be forced to travel long distances or somehow purchase a retro console for themselves; not to mention potential consideration of extra-legal methods. Researchers are pushed into focusing on works that are easy to access rather than those they have a true interest in studying. Teaching is also affected: academics cannot assign their students games with historical or technological significance if they may not be able to access them (for example,  the original Metroid Prime (2002), noted for its female protagonist and being the first game in the series to use 3D graphics, is only available on the GameCube). This curtails the growth of video game studies, introducing obstacles to a field with deepening cultural impact and technological advancement.

In their submission to the USCO, the SPN compared the rise of video games to the film industry, highlighting the creation of the National Film Preservation Board in 1988 as a way of recognizing that films are a part of cultural heritage, worthy of academic preservation and study. Whether games will ever reach that status remains uncertain: they make up a large part of our cultural and entertainment landscape today and it's clear that they are here to stay, but only time will tell whether the USCO's attitudes change.

Man, come the fuck on....

i think CEO's should be rounded up and shot personally

[azspot]

So regulators are no longer allowed to regulate, but, thanks to DMCA 1201, corporations can just make up rules out of thin air and give them the force of both criminal and civil statute. The government can't govern, but corporations can.

Apple vs the “free market”

[luigiblood]

An interpretation of the Dolphin on Steam situation.

As a reminder, Dolphin, the GameCube and Wii emulator, had announced a release of a Steam version using features from Steam like cloud save, Steam Deck native support and all.

A couple of days ago, Dolphin's Steam page was pulled down, then Dolphin's official blog mentioned a DMCA takedown, and PC Gamer reported on it, quoting the DMCA. Then we all went a bit crazy over this, then Delroth, a former Dolphin member, talked in a bit more detail, and debunked a misunderstanding.

You can still read this from Delroth here: https://mastodon.delroth.net/@delroth/110440301402516214

EDIT: Delroth has made one more very interesting post on Reddit about encryption keys in emulators here: https://www.reddit.com/r/emulation/comments/140b7x5/are_dolphin_devs_special_in_bundling_decryption/

All in all, the situation was misinterpreted from all sides, and to sum it up, according to Delroth: Valve asked Nintendo about this, and Nintendo said they don't want this, and quoted the DMCA's set of laws. In fact, not only Delroth says this, a lawyer contacted by PC Gamer essentially says the same thing in the updated report here.

One more preface: I am NOT a lawyer, legal text is very hard to fully grasp, this is only my own interpretation of the situation, what I am about to say may be VERY VERY WRONG. Got it?

The Digital Millennium Copyright Act is a copyright law from 1998. It is made of several titles and acts. The first title contains the anti-circumvention part which we'll get to later. The second title contains the takedown process part.

DMCA Takedown

I'll get to the second title first:

To sum it up, this is the part where you can do a copyright infringement claim, a "notice and takedown" process. This process also includes the ability of a counterclaim.

NONE OF THIS HAPPENED ON DOLPHIN ON STEAM. Nintendo did not use this process. They just told Valve a reason, and it was Valve's decision alone that got the emulator removed, and they notified Dolphin of the reason.

I won't really debate much on this, it's not really interesting.

"Anti-circumvention"

Now, the anti-circumvention part, the meaty part. There's a lot of legal text, but I will translate to the best of my abilities to you, don't worry.

This is the part where I feel the least comfortable about, and again, this is an interpretation, but let's start again from that quote that I had (from PC Gamer, by the way):

the Dolphin emulator operates by incorporating these cryptographic keys without Nintendo’s authorization and decrypting the ROMs at or immediately before runtime. Thus, use of the Dolphin emulator unlawfully 'circumvent[s] a technological measure that effectively controls access to a work protected under' the Copyright Act.

The thing is... I only said that indeed, the Wii Common Key, required to decrypt everything, is included in Dolphin's source code. It's... not necessarily the problematic point of this, as I tried to read more into it, and I will go back to the Lockpick_RCM actual DMCA takedown.

Lockpick_RCM is a Switch tool that gets a set of keys from your Switch console and puts them into an easy to read file that could be used in conjunction with other Switch tools. They're required to decrypt pretty much everything about the Switch, from games to other packages.

The use of Lockpick with a modified Nintendo Switch console allows users to bypass Nintendo’s Technological Measures for video games

A thing you read a lot is "Technological Measures"... turns out this has a bit of a definition in 17 U.S.C. §1201... or rather, in that text itself, here's the very first thing you can read:

17 U.S.C. §1201 (a)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The wording "circumvent a technological measure" happens to have a definition tied to it:

17 U.S.C. §1201 (a)(3) As used in this subsection— (A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

It's a somewhat precise definition, actually, and purely relying on it... this makes pretty much everything Wii, 3DS, Wii U and Switch a very dangerous situation.

The "technological measure" also has a definition:

17 U.S.C. §1201 (a)(3)(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

Basically it just means a DRM (Digital Rights Management) process of sorts.

A lot of people loves to talk about the previous lawsuits on emulators, but note that I never mentioned the emulation being the issue here. Nintendo is NOT arguing, on a legal level anyway, that emulators are illegal by being one, their communication team does by stifling innovation in their public arguments.

According to 17 U.S.C. §1201 (a)(3)(A), just having encryption is enough to consider that they're protected, and just decrypting is already illegal... this affects a lot more than you think, it's not just Dolphin at this point, it seems we misunderstood a lot of things about the DMCA.

To sum it up more bluntly: I don't feel like the encryption key is the main argument, it's actually about what you do with it that they argue against.

So even if Dolphin removed the Wii Common Key, if they still include the decryption process, even if you provided the key yourself from your own system, EVEN your own Wii dumps, the argument here implies that since you're still decrypting the Wii dump data, this last part is argued to be illegal. This ain't right.

Now apply this to everything else, even if you decrypted the game beforehand so that Dolphin doesn't even decrypt anything, the problem would be moved to the dumper or the decrypter tool doing it. This applies to a lot of systems.

Considering the definition I showed earlier, this seems hard to argue against, however, notice that I never said anything as fact, and insisted that it is Nintendo's argument, legally speaking, I believe this is an important distinction to make.

Exceptions?

The law also explicitly defines exceptions to this, but please read carefully, because this is where I start to really interpret from here:

In 17 U.S.C. §1201 (a)(1)(B), my understanding is that when the protection itself prevents legitimate use, then you are allowed to break it. That said, and this is important: The later subparagraphs defines these paragraphs as something that CANNOT BE USED AS A DEFENSE. This is only there to shield the Library of Congress from any attack, and to allow them to research the various impacts that the protection does and determine rules. Their ruling is also explicitly not allowed to be used as a defense in the text.

After reading a lot of this, I only found one thing that, very honestly, I find quite unclear. Subsection (f) about Reverse Engineering, is particularly showing how much they're not well versed in computer science.

17 U.S.C. §1201 (f) basically says if you're trying to understand how the program works, you are allowed to circumvent the protection, under the idea that you're doing analysis, or...

17 U.S.C. §1201 (f)(2) for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

In the case of infringement, I believe this is about copyright in general, as the law suggests this does not affect copyright laws in any way.

So what is interoperability... well let's take the definition from there:

17 U.S.C. §1201 (f)(4) For purposes of this subsection, the term “interoperability” means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

So we're talking about the ability for a program to exchange information with the work, in this case, a game for example.

...what is this? Programs exchange information all the time. That's even the basis of a computer. Maybe there are other definitions, but frankly I can't be bothered to read even more legalese right now.

With just this, and not taking into account anything else, I feel like this allows emulators to work, they don't really modify the game, they try to run it within a sandbox, where a lot of information is exchanged to make sure the program runs as intended.

Oddly enough this would still make the ability to run those games on a modded Switch still illegal though, while emulators could be allowed to do this.

But make no mistake: This is not a legally tested argument. I need to repeat: This is an interpretation. Lawsuits literally work with lawyers interpreting information and the laws, and argue. The whole idea of laws being unclear is not necessarily a fault, it's specifically why lawyers exist.

Why now? And what now?

Honestly, as much as Nintendo argued, for the time being, they have not shown any intention to take down Dolphin as a whole. They could just argue as a scare tactic to prevent Dolphin to reach an even more mainstream status. I doubt Nintendo didn't know about Dolphin for that long.

Until I see an actual DMCA takedown, or worse against Dolphin itself, I'm going to assume Dolphin will stay up for a long time.

Removing the Wii Common Key from Dolphin will not change the situation, as it is the whole decryption process that the argument is about.

Whether Citra, Cemu, Yuzu and Ryujinx could have included the keys or not, the argument would still be the same here.

TL;DR of the complicated part

About the takedown itself:

Valve asked Nintendo about Dolphin on Steam, and they argued that Dolphin is illegal because it decrypts Wii games, and Valve, on their own accord, took down Dolphin from Steam from this. (Note: GameCube does not use encryption and cannot be impacted by this.)

An actual lawyer also takes this as a warning from Nintendo to Valve according to PC Gamer.

About the argument that Nintendo used against Dolphin:

Encryption Keys are NOT the main point of contention, because...

The encryption itself, as a whole, is argued by Nintendo to be a protection measure.

This means that decrypting the game outside of the intended way by the copyright owner (Nintendo, on a Nintendo Switch) is argued to be illegal by default.

The law, as in how I interpret it, goes in that sense, but for some reason you are allowed to make an additional program that can "interoperate" with the protected works in question and explicitly is allowed to break the protection. This is a vague part, and could be used in defense of Dolphin, potentially.

The final answer can only be answered in a courtroom.

[arklayraven]

Screw people who are against archives and preservation for games and media in general so much.

The US Copyright Office announced today that they would not grant a new exemption in the Digital Millennium Copyright Act (DMCA) in support of video game preservation. (see p.29) For the past three years, the Video Game History Foundation has been supporting with the Software Preservation Network (SPN) on a petition to allow libraries and archives to remotely share digital access to out-of-print video games in their collections. Under the current anti-circumvention rules in Section 1201 of the DMCA, libraries and archives are unable to break copy protection on games in order to make them remotely accessible to researchers. While we are disappointed by the Copyright Office’s decision (see p. 191 of the Register’s Recommendation), we have no regrets about going through this process. Over the last three years, working on the petition has helped us generate important research, notably our Survey of the Video Game Reissue Market in the United States report, which proved that around 87 percent of video games released in the United States before 2010 remain out of print. Our combined efforts with SPN have raised significant public awareness of these issues and have already made an impact throughout the game industry and preservation communities. Unfortunately, lobbying efforts by rightsholder groups continue to hold back progress. During our hearing with the Copyright Office, the Entertainment Software Association (ESA) declared that they would never support remote game access for research purposes under any conditions. The game industry’s absolutist position—which the ESA’s own members have declined to go on the record to support—forces researchers to explore extra-legal methods to access the vast majority of out-of-print video games that are otherwise unavailable. We’re not done fighting here. We will continue our advocacy for greater access and legal allowances for video game preservation and working with members of the game industry to increase internal awareness around these issues. We encourage members of the game industry who are disappointed by the Copyright Office’s decision to ask their leadership to push for greater support for the work of libraries and archives within their industry groups.

[meret118]

Great article!

Excerpt:

Think of our ad blockers again. Fifty per cent of web users are running ad blockers. Zero per cent of app users are running ad blockers, because adding a blocker to an app requires that you first remove its encryption, and that’s a felony. (Jay Freeman, the American businessman and engineer, calls this “felony contempt of business-model”.)

So when someone in a boardroom says, “Let’s make our ads 20 per cent more obnoxious and get a 2 per cent revenue increase,” no one objects that this might prompt users to google, “How do I block ads?” After all, the answer is, you can’t. Indeed, it’s more likely that someone in that boardroom will say, “Let’s make our ads 100 per cent more obnoxious and get a 10 per cent revenue increase.” (This is why every company wants you to install an app instead of using its website.)

There's no reason that gig workers who are facing algorithmic wage discrimination couldn’t install a counter-app that co-ordinated among all the Uber drivers to reject all jobs unless they reach a certain pay threshold. No reason except felony contempt of business model, the threat that the toolsmiths who built that counter-app would go broke or land in prison, for violating DMCA 1201, the Computer Fraud and Abuse Act, trademark, copyright, patent, contract, trade secrecy, nondisclosure and noncompete or, in other words, “IP law”.

IP isn’t just short for intellectual property. It’s a euphemism for “a law that lets me reach beyond the walls of my company and control the conduct of my critics, competitors and customers”. And “app” is just a euphemism for “a web page wrapped in enough IP to make it a felony to mod it, to protect the labour, consumer and privacy rights of its user”.

[kennak]

米ビデオゲーム業界団体 Entertainment Software Associataion (ESA) によれば、高度なスキルを持ったハッカーが海賊版サプライチェーンで重要な役割を果たしているという (TorrentFreak の記事)。 この見解は ESA が米通商代表部 (USTR) による知的財産侵害市場に関するスペシャル 301 条 2023 年版意見募集に応じて提出した意見書 (PDF) の中で触れたものだ。 ESA ではビデオゲームソフトの DRM を迂回して海賊版の配布を可能にする「クラッカー」と���ファイルサイズを大幅に小さくしてダウンロードしやすくする「リパッカー」を「高度なスキルを持ったハッカー」と呼んでいる。DRM 迂回は技術的保護手段の回避にあたり、米著作権法 1201 条 (DMCA 迂回禁止条項) に違反する。 意見書では知的財産侵害市場における追加のトレンドの一つとして、俗に「warez scene」「scene release groups」などと呼ばれるグループの増加を挙げている。こういったグループは DRM の迂回とファイルサイズ縮小により、海賊版の高速な配布を実現する。そのため、高度なスキルを持ったハッカーは欠かせない存在とのことだ。

米ビデオゲーム業界団体ESA曰く、高度なスキルを持ったハッカーが海賊版サプライチェーンで重要な役割 | スラド YRO

[legendoro]

If it is, our biggest obstacle is this app everything culture

To put an ad-blocker in an app, you have to reverse-engineer it. To do that, you’ll have to decrypt and decompile it. That step is a felony under Section 1201 of the DMCA, carrying a five-year prison sentence and a $500,000 fine.

(Cory Doctorow)

[mostlysignssomeportents]

Tesla's Dieselgate

Elon Musk lies a lot. He lies about being a “utopian socialist.” He lies about being a “free speech absolutist.” He lies about which companies he founded:

https://www.businessinsider.com/tesla-cofounder-martin-eberhard-interview-history-elon-musk-ev-market-2023-2 He lies about being the “chief engineer” of those companies:

https://www.quora.com/Was-Elon-Musk-the-actual-engineer-behind-SpaceX-and-Tesla

He lies about really stupid stuff, like claiming that comsats that share the same spectrum will deliver steady broadband speeds as they add more users who each get a narrower slice of that spectrum:

https://www.eff.org/wp/case-fiber-home-today-why-fiber-superior-medium-21st-century-broadband

The fundamental laws of physics don’t care about this bullshit, but people do. The comsat lie convinced a bunch of people that pulling fiber to all our homes is literally impossible — as though the electrical and phone lines that come to our homes now were installed by an ancient, lost civilization. Pulling new cabling isn’t a mysterious art, like embalming pharaohs. We do it all the time. One of the poorest places in America installed universal fiber with a mule named “Ole Bub”:

https://www.newyorker.com/tech/annals-of-technology/the-one-traffic-light-town-with-some-of-the-fastest-internet-in-the-us

Previous tech barons had “reality distortion fields,” but Musk just blithely contradicts himself and pretends he isn’t doing so, like a budget Steve Jobs. There’s an entire site devoted to cataloging Musk’s public lies:

https://elonmusk.today/

But while Musk lacks the charm of earlier Silicon Valley grifters, he’s much better than they ever were at running a long con. For years, he’s been promising “full self driving…next year.”

https://pluralistic.net/2022/10/09/herbies-revenge/#100-billion-here-100-billion-there-pretty-soon-youre-talking-real-money

He’s hasn’t delivered, but he keeps claiming he has, making Teslas some of the deadliest cars on the road:

https://www.washingtonpost.com/technology/2023/06/10/tesla-autopilot-crashes-elon-musk/

Tesla is a giant shell-game masquerading as a car company. The important thing about Tesla isn’t its cars, it’s Tesla’s business arrangement, the Tesla-Financial Complex:

https://pluralistic.net/2021/11/24/no-puedo-pagar-no-pagara/#Rat

Once you start unpacking Tesla’s balance sheets, you start to realize how much the company depends on government subsidies and tax-breaks, combined with selling carbon credits that make huge, planet-destroying SUVs possible, under the pretense that this is somehow good for the environment:

https://pluralistic.net/2021/04/14/for-sale-green-indulgences/#killer-analogy

But even with all those financial shenanigans, Tesla’s got an absurdly high valuation, soaring at times to 1600x its profitability:

https://pluralistic.net/2021/01/15/hoover-calling/#intangibles

That valuation represents a bet on Tesla’s ability to extract ever-higher rents from its customers. Take Tesla’s batteries: you pay for the battery when you buy your car, but you don’t own that battery. You have to rent the right to use its full capacity, with Tesla reserving the right to reduce how far you go on a charge based on your willingness to pay:

https://memex.craphound.com/2017/09/10/teslas-demon-haunted-cars-in-irmas-path-get-a-temporary-battery-life-boost/

That’s just one of the many rent-a-features that Tesla drivers have to shell out for. You don’t own your car at all: when you sell it as a used vehicle, Tesla strips out these features you paid for and makes the next driver pay again, reducing the value of your used car and transfering it to Tesla’s shareholders:

https://www.theverge.com/2020/2/6/21127243/tesla-model-s-autopilot-disabled-remotely-used-car-update

To maintain this rent-extraction racket, Tesla uses DRM that makes it a felony to alter your own car’s software without Tesla’s permission. This is the root of all autoenshittification:

https://pluralistic.net/2023/07/24/rent-to-pwn/#kitt-is-a-demon

This is technofeudalism. Whereas capitalists seek profits (income from selling things), feudalists seek rents (income from owning the things other people use). If Telsa were a capitalist enterprise, then entrepreneurs could enter the market and sell mods that let you unlock the functionality in your own car:

https://pluralistic.net/2020/06/11/1-in-3/#boost-50

But because Tesla is a feudal enterprise, capitalists must first secure permission from the fief, Elon Musk, who decides which companies are allowed to compete with him, and how.

Once a company owns the right to decide which software you can run, there’s no limit to the ways it can extract rent from you. Blocking you from changing your device’s software lets a company run overt scams on you. For example, they can block you from getting your car independently repaired with third-party parts.

But they can also screw you in sneaky ways. Once a device has DRM on it, Section 1201 of the DMCA makes it a felony to bypass that DRM, even for legitimate purposes. That means that your DRM-locked device can spy on you, and because no one is allowed to explore how that surveillance works, the manufacturer can be incredibly sloppy with all the personal info they gather:

https://www.cnbc.com/2019/03/29/tesla-model-3-keeps-data-like-crash-videos-location-phone-contacts.html

All kinds of hidden anti-features can lurk in your DRM-locked car, protected from discovery, analysis and criticism by the illegality of bypassing the DRM. For example, Teslas have a hidden feature that lets them lock out their owners and summon a repo man to drive them away if you have a dispute about a late payment:

https://tiremeetsroad.com/2021/03/18/tesla-allegedly-remotely-unlocks-model-3-owners-car-uses-smart-summon-to-help-repo-agent/

DRM is a gun on the mantlepiece in Act I, and by Act III, it goes off, revealing some kind of ugly and often dangerous scam. Remember Dieselgate? Volkswagen created a line of demon-haunted cars: if they thought they were being scrutinized (by regulators measuring their emissions), they switched into a mode that traded performance for low emissions. But when they believed themselves to be unobserved, they reversed this, emitting deadly levels of NOX but delivering superior mileage.

The conversion of the VW diesel fleet into mobile gas-chambers wouldn’t have been possible without DRM. DRM adds a layer of serious criminal jeopardy to anyone attempting to reverse-engineer and study any device, from a phone to a car. DRM let Apple claim to be a champion of its users’ privacy even as it spied on them from asshole to appetite:

https://pluralistic.net/2022/11/14/luxury-surveillance/#liar-liar

Now, Tesla is having its own Dieselgate scandal. A stunning investigation by Steve Stecklow and Norihiko Shirouzu for Reuters reveals how Tesla was able to create its own demon-haunted car, which systematically deceived drivers about its driving range, and the increasingly desperate measures the company turned to as customers discovered the ruse:

https://www.reuters.com/investigates/special-report/tesla-batteries-range/

The root of the deception is very simple: Tesla mis-sells its cars by falsely claiming ranges that those cars can’t attain. Every person who ever bought a Tesla was defrauded.

But this fraud would be easy to detect. If you bought a Tesla rated for 353 miles on a charge, but the dashboard range predictor told you that your fully charged car could only go 150 miles, you’d immediately figure something was up. So your Telsa tells another lie: the range predictor tells you that you can go 353 miles.

But again, if the car continued to tell you it has 203 miles of range when it was about to run out of charge, you’d figure something was up pretty quick — like, the first time your car ran out of battery while the dashboard cheerily informed you that you had 203 miles of range left.

So Teslas tell a third lie: when the battery charge reached about 50%, the fake range is replaced with the real one. That way, drivers aren’t getting mass-stranded by the roadside, and the scam can continue.

But there’s a new problem: drivers whose cars are rated for 353 miles but can’t go anything like that far on a full charge naturally assume that something is wrong with their cars, so they start calling Tesla service and asking to have the car checked over.

This creates a problem for Tesla: those service calls can cost the company $1,000, and of course, there’s nothing wrong with the car. It’s performing exactly as designed. So Tesla created its boldest fraud yet: a boiler-room full of anti-salespeople charged with convincing people that their cars weren’t broken.

This new unit — the “diversion team” — was headquartered in a Nevada satellite office, which was equipped with a metal xylophone that would be rung in triumph every time a Tesla owner was successfully conned into thinking that their car wasn’t defrauding them.

When a Tesla owner called this boiler room, the diverter would run remote diagnostics on their car, then pronounce it fine, and chide the driver for having energy-hungry driving habits (shades of Steve Jobs’s “You’re holding it wrong”):

https://www.wired.com/2010/06/iphone-4-holding-it-wrong/

The drivers who called the Diversion Team weren’t just lied to, they were also punished. The Tesla app was silently altered so that anyone who filed a complaint about their car’s range was no longer able to book a service appointment for any reason. If their car malfunctioned, they’d have to request a callback, which could take several days.

Meanwhile, the diverters on the diversion team were instructed not to inform drivers if the remote diagnostics they performed detected any other defects in the cars.

The diversion team had a 750 complaint/week quota: to juke this stat, diverters would close the case for any driver who failed to answer the phone when they were eventually called back. The center received 2,000+ calls every week. Diverters were ordered to keep calls to five minutes or less.

Eventually, diverters were ordered to cease performing any remote diagnostics on drivers’ cars: a source told Reuters that “Thousands of customers were told there is nothing wrong with their car” without any diagnostics being performed.

Predicting EV range is an inexact science as many factors can affect battery life, notably whether a journey is uphill or downhill. Every EV automaker has to come up with a figure that represents some kind of best guess under a mix of conditions. But while other manufacturers err on the side of caution, Tesla has the most inaccurate mileage estimates in the industry, double the industry average.

Other countries’ regulators have taken note. In Korea, Tesla was fined millions and Elon Musk was personally required to state that he had deceived Tesla buyers. The Korean regulator found that the true range of Teslas under normal winter conditions was less than half of the claimed range.

Now, many companies have been run by malignant narcissists who lied compulsively — think of Thomas Edison, archnemesis of Nikola Tesla himself. The difference here isn’t merely that Musk is a deeply unfit monster of a human being — but rather, that DRM allows him to defraud his customers behind a state-enforced opaque veil. The digital computers at the heart of a Tesla aren’t just demons haunting the car, changing its performance based on whether it believes it is being observed — they also allow Musk to invoke the power of the US government to felonize anyone who tries to peer into the black box where he commits his frauds.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/07/28/edison-not-tesla/#demon-haunted-world

This Sunday (July 30) at 1530h, I’m appearing on a panel at Midsummer Scream in Long Beach, CA, to discuss the wonderful, award-winning “Ghost Post” Haunted Mansion project I worked on for Disney Imagineering.

Image ID [A scene out of an 11th century tome on demon-summoning called 'Compendium rarissimum totius Artis Magicae sistematisatae per celeberrimos Artis hujus Magistros. Anno 1057. Noli me tangere.' It depicts a demon tormenting two unlucky would-be demon-summoners who have dug up a grave in a graveyard. One summoner is held aloft by his hair, screaming; the other screams from inside the grave he is digging up. The scene has been altered to remove the demon's prominent, urinating penis, to add in a Tesla supercharger, and a red Tesla Model S nosing into the scene.]

Image: Steve Jurvetson (modified) https://commons.wikimedia.org/wiki/File:Tesla_Model_S_Indoors.jpg

CC BY 2.0 https://creativecommons.org/licenses/by/2.0/deed.en

[nanan]

テレビリモコン、PVR、広告ブロッカーはいずれも「敵対的相互運用性」の事例だ。これは、既存の製品に接続して、その製造元の許可なく（あるいは反対を押し切って）その機能を拡張・修正する新製品のことだ。 https://www.eff.org/deeplinks/2019/10/adversarial-interoperability 敵対的相互運用性は、プラットフォーム所有者に強力な規律を与える力を生み出す。ユーザが製品のメタクソ化にイラだち、敵対的相互運用性ツールを研究し、探し出し、入手し、使用方法を学ぶようになると、そこで試合終了だ。サードパーティのインクの入手先を発見したプリンタユーザは「永遠に」客ではなくなる。HPのような企業がインクの価格を吊り上げるたびに、ついにジェネリックインクの使い方を理解して「二度とHPに1セントも支払わない」客が増えていくのだ。 ここでDMCA 1201が登場する。製品にDRMが付与されると、製造元はあなたが「合法的な」行為を妨げる権利を手にし、裁判所や法執行機関を従えてあなたを処罰できるようになる。HPを例に取ろう。HPがカートリッジにDRMを追加するとすぐさま、カートリッジを複製、再充填、再製造する企業を潰す法的権利を手にし、インクの値上げを開始した。今では1ガロンあたり1万ドル以上もする。 https://pluralistic.net/2024/09/30/life-finds-a-way/#ink-stained-wretches プリンタにサードパーティのインクを使用することは違法ではない（なんぜあなたが所有するプリンタだ）。だが、プリンタ用のサードパーティインクを「製造する」には、DRMを破らなければならないのなら、違法に「できる」。そのおかげで、HPは色水を文字通り地球上で最も高価な液体として売りつけることができている。子供の宿題を印刷するためのインクは、ヴーヴ・クリコのヴィンテージ・シャンパンやケンタッキーダービー優勝馬の精液よりも高価なのだ。 敵対的相互運用性は、生産者、��介者、購入者のバランスをシフトさせる強力なツールだ。DRMは、そのバランスを仲介者側に「引き戻す」さらに強力な方法であり、買い手と売り手が取引から得られる分け前を減らす。

なぜAmazonはPrime Videoに広告をぶち込めるのか | p2ptk[.]org

[ranfanblog]

DMCA 1201—the "anti-circumvention" rule—imposes a blanket ban on disabling or bypassing "access controls" for copyrighted works. In plain language, that means that you can't override a manufacturer's software locks on copyrighted works. Notably, DMCA 1201 does not limit itself to banning circumvention where copyright infringement takes place: if you remove or bypass a copyright lock to do something that is perfectly legal, like fair use or reverse engineering, you're still in violation of DMCA 1201. What's more, providing people with a tool to bypass a DMCA 1201 lock can sometimes be a criminal violation, a felony punishable by a five-year prison sentence and a $500,000 fine (for a first offense!).

WTF do you mean jailbreaking my "smart" TV to install Linux in order to run adblock on my TV would be "Felony Contempt of Buisiness Model" That sounds like a crime made up by The Board in Outer Worlds.

[lilithsaintcrow]

"So regulators are no longer allowed to regulate, but, thanks to DMCA 1201, corporations can just make up rules out of thin air and give them the force of both criminal and civil statute. The government can't govern, but corporations can."

[kennak]

GitHub は 2022 年、2,321 件の DMCA 削除要請を受け取って処理したそうだ (透明性リポート 2022 年版、 TorrentFreak の記事)。 削除要請の数は 2021 年の 1,828 件と比べて 27 % 増加。中でも DMCA 迂回禁止条項 (米著作権法 1201 条) 違反を主張するものは 365 件 (15.7 %) にのぼる。2021 年の全削除要請に占める迂回禁止条項違反の通知は 92 件 (5 %) であり、2020 年までは 5 % 未満だった。一方、DMCA 削除要請に対する有効な反論通知は 36 件あり、破棄通知 1 件と撤回通知 7 件を合わせた 44 件を処理してコンテンツを復元したという。 その結果、2022 年に GitHub で削除したプロジェクトは 25,501 件。114 件が復元され、25,387 件が引き続き削除された状態になっているそうだ。25,387 件は多く感じられるかもしれないが、2 億件以上のリポジトリがある 2022 年の GitHub では 0.02 % 未満に過ぎないとのこと。なお、2021 年は 19,191 件であり、2022 年は 32 % 増加している。

GitHub、2022年のDMCA削除要請は前年から27%増加、削除件数は32%増の25,387件 | スラド YRO

[hackernewsrobot]

EFF argues DMCA section 1201(a) violates First Amendment

https://www.eff.org/press/releases/licensing-scheme-fair-uses-and-other-speech-violates-first-amendment-eff-argues