Why Are Emulators Legal? Dolphin vs. Nintendo, and the Fate of Emulation [Great Emu War Pt. 1]
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Why Are Emulators Legal? Dolphin vs. Nintendo, and the Fate of Dolphin Emulator
Everyone knows that emulators are legal... but why are they legal? Emulation is far more fragile than most people think, and its protected only by the thinnest veneer of law. Nintendo's recent takedown of Dolphin Emulator's release on Steam shows us that we cannot take the future of emulation for granted!
Let's explore together, the history of emulation law, the Dolphin vs. Nintendo battle over Steam, and the fate of Dolphin emulator. In so doing, we will learn what is legal in emulation, what isn't legal, and what still has yet to be clarified.
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Chapters:
00:00 - Intro
01:14 - Sponsored By Brilliant.org
02:27 - A Tale of Two Companies and a Marine Mammal
04:33 - Intro to the Legality of Emulators
05:39 - Sony v. Connectix Corp., the Basis for Emulation Legality
09:19 - Sony v. Bleem, NOT the Basis for Emulation Legality
12:06 - TL;DR Legality of Emulation Summary
14:28 - Sega v. Accolade, Intro to 17 USC §1201(f)
15:55 - Dolphin Emulator Takedown Intro
18:21 - Analyzing Nintendo's Letter
30:22 - Valve's Role
35:16 - The Existential Threat of Emulation and the Big Red Litigation Button
37:35 - Soulja Boy Tangent
39:48 - Conclusion
41:08 - End Credits Gag, Silly Songs with Moony
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Track List:
Intro - Dolphin Park, Wave Race 64
Sponsor - Wii Shop Channel, Smash Ultimate
Tale of Two Companies - Grandma's Theme, The Legend of Zelda: Wind Waker
Legality of Emulators/Connectix - Beginning Overture, Phoenix Wright Ace Attorney
Sony v. Connectix Corp. - Objection! 2001, Phoenix Wright Ace Attorney
Sony v. Connectix Corp. - Testimony ~ Allegro 2001, Phoenix Wright Ace Attorney
Sony v. Bleem - See, Above
Emulation Summary - Pursuit ~ Cornered, Phoenix Wright Ace Attorney
Sega v. Accolade - See, Above
Dolphin Emulator Takedown Intro - Bubblaine, Super Mario Odyssey
Nintendo's Letter - Dolphin Shoals, Mario Kart 8 Deluxe
Nintendo's Letter - The Trial, Chrono Trigger
Valve's Role - Want You Gone, Portal 2
Valve's Role - Still Alive, Portal
Big Red Button - Swing Doors, Fallout 3
Soulja Boy Tangent - Boogie Man, Fallout 3
Conclusion - Game Over, Ecco the Dolphin
End Credits Gag - Moony sings a parody of "So Long and Thanks For All the Fish" from The Hitchhiker's Guide to the Galaxy Movie.
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Attributions:
Mario Homerun Contest Footage:
• Super Smash Bros. Ulti...
Dolphin 5.0 Release Video:
• Dolphin 5.0 Release Video
Dolphin Comparison Footage New Super Mario Bros
• New Super Mario Bros. ...
Steam Summer Sale Memes
• Are You Ready? - Steam...
• Are You Ready? - Steam...
• Attack on Gaben
• TONIGHT'S THE NIGHT
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Additional Reading:
No Scrubs, by TLC
en.wikipedia.org/wiki/No_Scrubs
17 U.S.C. §1201
www.law.cornell.edu/uscode/te...
Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000)
caselaw.findlaw.com/court/us-...
Sony Computer Entertainment America v. Bleem, 214 F.3d 1022 (9th Cir. 2000)
casetext.com/case/sony-comput...
The Nintendo Letter to Valve
imgur.com/a/cLE6DPX
The Verge's Article on Dolphin Emulator -- the best researched article on the subject I've read. They also published the Nintendo letters!
www.theverge.com/2023/6/1/237...
Use of a Game Over: Emulation and the Video Game Industry, A White Paper, Northwestern Journal of Technology and Intellectual Property
scholarlycommons.law.northwes... - เกม
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Thank you, Moony, for being a bastion of legal cool-headedness
Great video, Everyone is going to comment on different aspects, as they are amazing, thought out, and well deserved.
But I'd just like to give personal love to your silly song at the end of the video. Please keep those. Hilarious, funny, and a great way to keep people watching through the end of each video going forward for watch time. ❤
love ur style, voice, and content my man! great stuff! much love
Glad I have been hearing this on 35:18,
This is why we have rules.
Its legal to put cocacola in a pepsi bottle and drink it. Similarly we should legally be able to consume media such as games on other devices.
the fact people can just sue someone knowing they won't be able to cover legal fees, even if they're not in the wrong, is completely ridiculous and one of the worst things about the modern legal system.
not even just from corporations, but even rich people with too much money can just sue individual citizens they don't like just because they can, make them lose all of their money no matter who ends up winning the case
If the lawsuit is actually frivolous, the defendant can frequently counter-sue for legal fees.
The really dangerous lawsuits are from people who don't have money. Even if the judge awards you legal fees, there's virtually no chance of actually collecting them.
@@derrickcrowe3888yes, but it's not that simple. Mainly because frivelous is in the eye of the beholder
@@Ziggurat1One would think that sueing someone on the same grounds as several previous lawsuits that you have already lost would count as frivolous. (But I know it's not that simple.)
I wonder if it's any different in other countries e.g. Europe?
More people need to speak up about planned obsolescence and right to repair!
I don't understand why legal fees are a thing in the first place
The use of dolphin shoals is a brilliant way of making the legal mumbo jumbo bearable
The cover of "so long and thanks for all the fish" from the 2005 movie adaptation of Hitchhiker's Guide to the Universe (which was sung by dolphins who in Hitchhiker's Guide, were actually not native to Earth all along) was genius too.
I enjoy the legal mumbo jumbo, but I'm Jewish so take that for what you will
the intense sax shredding was a bit distracting for me personally
@@BBWahoo💀
I didn't think i would see you here
I would also like to add that Valve telling Nintendo about Dolphin's intention to move to steam, isn't necessarily siding with Nintendo. It's extremely likely that Nintendo would have found out by themselves, so Valve has essentially two options:
1. Don't tell Nintendo, but they'll hear about it eventually (probably quite quickly) and then you get the current situation.
2. Tell Nintendo, and now you did them a "favour".
If they're going to hear about it anyway (and they 100% will), better to tell them yourself and reap any potential benefits.
plus, if it does go to trial and nintendo loses, they can still host Dolphin, now without the risk of disruption from a take down mentioned in the video. It's win-win for Valve
Heck even if there is no chance at a reward from Nintendo (seems unlikely to me at least) Valve telling them removes any liability they may have had if they distributed it before the legal action started.
i would have guessed the main reason is that they didn't want to risk being a target of ire or even liable for something
I think your call at roughly 37:00 is dead on. Nintendo doesn’t want this issue to be settled, legally, because it could result in an even less desirable outcome. But they *must* maintain the image of aggression and keep up the front that emulators and their users are in danger of legal consequences. At some point, they will be forced to make good that posturing, but I do believe that they will delay that action until they’re left with absolutely no choice.
Well said.
Nope, they're waiting for their advertising to take effect and for public opinion to shift against freedom. Never assume corporations are waiting because they fear something. They're waiting because they have enough money to buy the permanent end of the entire industry.
I wonder if it's possible for lawsuits to happen that will erode Nintendo's power in this situation, like opening Pandora's box in legalizing emulation, exactly what Nintendo doesn't want
On the plus side - the more time passes before this legal battle the more likely the jury (& judge) is to be of a younger generation.
A lot of the older generation just dont "get it" when it comes to modern tech.
Did you guys see that Google court case where some of the lawyers didnt know the difference between Android and Apple?
@Kavukamari it's high risk high reward for both parties. What emulation and major publishers/developers stand to gain is absolute control on the software - something they certainly won't mind, while we lose out on any means to preserve games that are both functionally and actually factually dead. They also stand to lose big time if ROMs become completely legal - and we do too, as it becomes a problem to stop piracy of new games that you can legally and easily obtain, which hurts studios and disincentivizes investment into video games as an industry.
Emulation and preservation on the other hand stands to gain legal standing and the ability to legally and proactively preserve games - especially online-only games. But we also stand to totally lose the ability to even back up our own legitimately owned software.
Or things stay as they are, where we keep out heads down and can save what we can while these studios and publishers can protect their more active products - they'll take issue with pirates going after their new stuff, and things that you can legally obtain, as that directly impacts profits, while continuing to look the other way for their otherwise impossible to purchase products and abandonware.
I think Dolphin really, _really_ needs to play it safe. It doesn't really need to expand and having emulation as an option is far too important for game preservation to risk.
This right here. I'm sure that anyone who wanted Dolphin on their Steam Deck has already done that. They really should not poke the million dollar corporate bear.
Yeah it's safe to say all if not most people who are interested in emulating are doing it already, so I see no real point in an "official" release on a store... you have your audience already lol
@@DOCTOR.DEADHEAD They are thirst for more donations and patreon support.
Too bad people don’t use emulation for such a noble cause.
@@lalehiandeity1649is emulating an out of print game for a non current system really not noble? 🤔
Honestly, I feel like there needs to be some type of legal push for game emulation for the sake of archival purposes. We're losing tons and tons of games over time because the companies that make them don't provide ways to maintain the old games or software. They might create remakes or remasters of popular titles, but more obscure or less popular titles simply get left behind and lost to time. We keep detailed archives of things like medical records, scientific research, books, movies, music, machine blueprints, etc. Why not games? There's gotta be some legal basis for recreation of software that is no longer in production for the sake of historical record keeping, right? I'd hope so, at least.
We need a video game version of a library so we can check out for free any game we want, and not just rely on donations of old games that no one has heard about or sucks, I mean all of them. Could make it an online library and you get them in the mail or something if you purchase the shipping
Just tossing out an idea, could be polished definately
Okay but.. legally speaking.. who cares? Who cares if games are not available anymore? Go waste your time with something else. And no, your romanticazed perceptions about the old games do not matter.
No there isnt need a legal archiving push for retarded "games". We can barely do it for the books. No need to even consider wasting effort in stocking games.
Voluntery speaking, do whatever you want. It would be cool to be able to play old games. And storage isnt expensive so there is not much thing thats stopping you.
Have a thousand up-ticks.👍😀
Protection for a technical innovation, a patent, typically lasts 20 years (and even then you have to regularly renew it during that time). Protection for a cultural innovation, copyright, lasts closer to a century in many countries. And there is a good argument to be made that this is rediculously long, but it is at least reasonable in the sense that if you want to read a book or see a movie first published halfway the previous century, there often is a way to get your hands on a copy that can still be read or played with a reasonable amount of effort and money. Less well known movies and particularly TV series can be challenging, actually, everything can be really challenging, and it gets harder with the shift to streaming, as there often is no official digital release. Sorry for derailing myself there, anyway, games have it worse, and console games often even worser. Even a 20 year old title will often be completely out of reach without essentially making a hobby of finding the right hardware and then keeping it running. I'd say there is a good case in that sense to treat emulation more in line with patent laws then with copyright laws, or at least to make a one time exception for what has basically become the abandonware era, everything before the late 90's or so, games that became unfindable ones they were a few years old because technology had moved on and there was something better now. At least if a company no longer supports the games being run. And if in response the next generation of consoles are all fully backwards compatible as far as 30 years back, with some way to (re)buy, restore or replace games, problem solved.
Note: I am not a lawyer, but I'm pretty sure none of this works legally. Let's instead just not rock the boat. Given that my favorite historic games era is DOS, I feel like I'm dealing with some of the chillest people in the industry already. Thanks for being chill people, people.
@@Echiewel you are overthinking. All we, consumers need to do is just pirate the game and use emulators. Illegal emulators or not. Not sure why people are too afraid of the label "illegal". If you believe you wont get caught, play with your own ethics. Not some random corporation called "court".
Ever since the DMCA existed, I've always rebelled against the bypassing protection part. It effectively removes pretty much every consumer friendly exception to copyright law. It used to be perfectly legal to make backups of your DVDs, but now it requires circumventing the CSS encryption which is a violation of that part of the DMCA.
This. It's an unjust law and should be broken at every opportunity.
There is a reason why all those exeption where included in the law at first... it's up to us to put pressur on the people we elect to make them legal again!
it's because there's nothing "consumer friendly" about copyright law
@@TalysAlankil not since the shitty DMCA there's not
The whole "Wii Common Key" issue with Nintendo is done and over with. If I were to download the Dolphin emulator today here in the USA, would it be legal or illegal to use? I am not trolling. I am genuinely asking.
The part about the legal system and suing people that can't afford it is pretty crazy. It's like even if the opposing party could have a point they could make or even win, but the battle in the courtroom basically turns into a war of attrition with the attrition factor basically being money.
Windows 11 has android support just think if you play Nintendo games within windows
by APK and that rom file
Welcome to the US judicial system! 🙃
On the other hand, you can't make people immune to lawsuits just because they 'can't afford it'.
@@arstulex No, but you cannot expect random citizens to fight attritious legal battles over months or years just because a multinational has gripes with them. What should be provisioned is a free lawyer or defense of some kind, like what you get when you're faced with criminal charges but broke. Otherwise it's just SLAPP, plain and simple.
@@spaghettiking653 Define "free" in this case.
Who is paying those lawyers for their work and time? Or are they required to work without compensation (slavery)?
"Soulja Boy, notable for being off in it, oh"
that line was amazing
look who's here
It’s interesting that Valve has chose to proactively notify Nintendo of Dolphin despite Retroarch, and its various emulator cores, already being available on Steam. Dolphin isn’t the first emulator on Steam
Do we even know if Valve acted differently with this case? Dolphin did a big no no compared to a lot of other emus out there on the market by including the encryption keys into the emulator itself which is what gives Nintendo the legal legs to stand on (other emus tell you to obtain a bios from somewhere). Retroarch, in theory, could have triggered the same letters to the companies but they had no legal recourse to try to block it since the copyright code weren't included with the emu.
I may be wrong on this but I'd guess it's because Retroarch itself isn't an emulator but a implementation of the Libretro framework that allows emulators and other media using the framework to run on it. It's more like making a browser that only runs other emulators rather than an emulator itself. In addition to that, from what I see, they don't make their own emulator cores, other emulator developers make cores that it can run, so they are in a safer area than actual emulators. They're also pretty safe from this due to how they market themselves:
- While they promote emulation, their steam page does not specify the type of emulation and only shows old computer games or custom games not associated with any existing corporations, so there's no need for Valve to directly notify a specific company.
- The majority of the cores are for old computer/arcade games and pretty much none of them market what they emulate, making it harder for general consumers to use the product, which makes Retroarch's market almost exclusively techy types. Since techy types will likely find more ways to emulate or pirate games, corporations won't consider them viable customers, making little incentive to waste time going after a product that doesn't harm their profit. (i.e. Keeping the status quo and not pushing the big red button)
- Dolphin is specifically for Nintendo products, so Nintendo has a strong incentive to go after them and Valve has strong incentive to make connections with Nintendo.
Not every core for retroarch is available on steam. For instance, dolphin core isn't available, neither is citra. cores that require you to download external bios (and encryption keys) to function, are. Flycast core is on steam because it doesn't come with a bios.
As others have said, not every emulator is on there. Another consideration is the value of GameCube and Wii games compared to anything prior to that. They aren't in the same league.
Dolphin was being an idiot. It is explicitly a tool that circumvents Nintendo’s IP rights. Of COURSE Nintendo would want this taken down, and Valve wants it off their hands as quickly as possible. Dolphin on Big Company Hardware is a dumb idea, period. Dolphin is a decent sized fish in the equivalent of a fish tank. We like it in its tank. We want it there. If we move it out to the wild, our little fish dies. Dolphin, in this case, is trying to leave its fish tank, which is a VERY bad idea. Keep your head down, play what you want, but dude, this shit’s illegal. You’re not paying for a product. Of course it’s not fully legal. But it’s not like I’d go down the legal route anyways.
As someone working on his LLM, it's fascinating just how much of the "law" as it exists in practice is really just empty space that no one wants to litigate and risk codifying the wrong way. It's like physics, if you look closely enough at something solid you realise it's not the atoms but the forces between them that make it so. Which is great for industries that don't want expensive law suits and want to save face with consumers, but annoying for students who just want a straight answer on something that should have been settled decades ago.
Nintendo pressed the button
I'm skimming through the complaint as we speak. This does look like a potential push of the button, but I'd bet that the risk calculus has already been done, and that Nintendo doesn't anticipate much of a meaningful fight from Tropic Haze.
@@moon-channelWill you make a video going over the complaint? I and I'm sure many other people would love to hear your opinion on it and what will happen OR what could happen if it actually goes to trial, which is probably unlikely.
@moon-channel after you've finished reviewing it, would love to hear your thoughts on it (for those of us who aren't fluent in legalese) :) It seems that there's unqualified metrics thrown around in that document and there's lots of references to things that Tropic Haze is not responsible for being framed as arguments against them in it.
@@moon-channel I just finished reading the lawsuit. I wonder if Nintendo doesn't even want Tropic Haze to settle. They might say no to any settlement cause they want precedent so they can takedown all emulators
@@moon-channelI’m still remembering the stuff that I learned from your video moon cause there’s a bunch of toxic people who also pirate games for no reason.
This is why I subscribed to this guy (Moon channel)
- He's really honest and truthful!
- He doesn't jump straight to conclusions like the other popular TH-camrs 24/7
- He takes time to get the evidence and everything he needs
- Most importantly, he's a really good lawyer!
Thank you for the kind words, M64! You've supported Moon Channel since the very beginning, and I am very grateful for your support.
@@moon-channel my pleasure!
The reason all other youtubers jump to defend emulator as legal is becuase they have their biases and never push them to the side. They are layman and as layman they only get the info that defends their conclusion. But moony is an actual lawyer, so he is trained to push his biases to the side and look at the case as a whole. Which is great becuase he can give insight into what actually is more likely going on that most youtubers that just want nintendo to he the most evil company becuase nintendo is the company that goes the hardest against youtubers.
Also moony, found your channel recently and I have to say, you have some of the best vid on TH-cam. Been recommending your channel to people that go into the nintendo is evil to see if they can think more openly and not just in a one track mindset.
Also have a small question: is it illegal to use trademark material for a piece of art like displaying coka cola or a car brand in the background of a shot. Becuase I assume it was illegal, that why licensing agreement exist, and why film makers would either cover or remove in post any trademark from films that they don't own or have license for.
@@zleeven indeed and exactly!
Yeah I don’t like those kinds of videos by Moist Cr1tkal and Some Ordinary Gamer(both channels that I like) because they just go duuuuuuhhhhhhhhhhh Nintendo hates they’re fans that’s not gonna get them respect points to I wish Nintendo is like SEGA ha ha SEGA does what Nintendon’t and cmon Nintendo try to make good graphics for once, like I get it you don’t like Nintendo because you’re a PC gamer that cares about graphics and shit.
Y'know, If you told me 20 years ago that in the future, I'd be watching a 40+ min video on video game legalese that was entertaining and ended in song, all on what is essentially my phone, I wouldn't know which part to disbelieve first....
Yet, here we are...
It’s frustrating that companies fight to prevent you from playing games that you can’t otherwise reasonably play, though I realize it’s all about money. Emulation isn’t about free games, it’s about playing games you otherwise couldn’t.
Like nerrel pointed out on his video on the matter, emulation is already far over the line of "good enough" for the free games argument, yet almost every emulator keeps on trying to improve not only the emulation method to be more accurate and run with better performance (like project 64 is currently looking forward), but even also improve user experience with resolution improvements, mod support and even better performance than the actual console it's emulating. Bust a groove 2 is a game that will probably never receive any re-release or even acknowledgement from the current owners of the IP, and the only way we can play it in an accessible manner, is via an emulator that can actually run it 8x the original resolution, with texture filtering improvements and at 60 fps despite the original version on ps1 running at 25 fps at the best scenarios. That is something that many would pay to have access to freely in their consoles, and big companies just won't provide.
I would buy a port of Xexxex in a heart beat.
Companies might rerelease X game down the line, which is why they’ll shut down roms of it online so people have to buy it if/when it comes out.
While it's certainly true that a lot of people use it for that reason. The truth is that most people use emulators (one way or another) for piracy.
The impending follow up to this video is going to be exciting.
You just keep on knocking it out of the park with every video you put out, Moony! Despite all the "I'm sure that sounds miserable" and the "...what is this, law school?", you manage to bring dense topics like these in a way that keeps me interested.
"in ""god"" we trust"! (which is really the money itself!)
34:18 "Gabe is an idealistic man, but he is still a millionaire" THANK YOU sometimes he obvious must be said
*"billionaire"
This is why people were laughing at the Titan Sub incident, and we were being called heartless. When something happen to the lower income people the rich don't give a shit, so don't judge as us for laughing at their demise.
@@hailthequeenFM Um... no. That's still wrong. Death is death. And you forget that there were innocents on that Sub. Like the Kid that didn't want to be there. Heartless shit like that is why people give you shit.
@@hailthequeenFM "so don't judge as us for laughing at their demise" You are subhuman.
@@hailthequeenFM I mean...you're not wrong, and it's an understandable sentiment, but if you take that to the logical extreme you just end up being exactly as awful as they are except without the money.
Well this just became relevant again...... Nintendo actually suing the Yuzu emulator for "bypassing switch encryption" to facilitate piracy
Yuzu flew too close to the sun. You ABSOLUTELY DO NOT tie your emulator to financial gain in any way. This is how flashcart sellers get sued and Nintendo won a case against them in 2017 when the 3DS started to sunset.
Just finished reading the lawsuit. Honestly, the fact they had a patreon isn't even that big of a deal. It was only mentioned like once of twice. The real big thing is the DMCA and how Yuzu doesn't work without keys, and the only way to get those keys is to illegally hack the console in some way. AKA, yuzu doesn't work without illegally hacking the console or pirating the keys. Yuzu links to sites where they tell you how to illegally hack a switch, which violates the DMCA. That is the fact they repeat, not the making money on patreon part.
The reason the patreon part doesn't matter is that if everything else was legal, than making money on patreon is fine. If everything is illegal, then obviously making money on patreon isn't fine. Making money on patreon can never turn a legal act to an illegal one.
@@MIKAEL212345 Legally the patrion does matter, and by extension the potential cost of a lost court case are also far worse. I am not saying that patreon was the main reason or anything like that, but by having financial gain directly tied to the illegal activity the threats nintendo could make were far more costly.
I like how this wholesome edutainment video essay also stealthily doubles as legal advice for a group of ostensibly well-meaning underdogs.
Half of Moon Videos is "I love your stuff, but you are really fuck, but they rather not do it either if they can, let them go that way".
Cordial warning more like, as legal advice in the US must be specifically proffered; it binds the advisor to relevant legal proceedings.
@@laggingdragons Right! Not legal advice, more like… a law-related heads-up!
@@laggingdragons Well, it still works as legal advice for people watching it outside the US.
@@VixYW I think moon channel being a practicising American lawyer, and the trial would likely taking place in America is what relevant.
Just one correction. Valve HAS done business with Nintendo as they released Portal: Companion Collection on Switch. That likely fueled their reasons for wanting to coalesce with Nintendo on this subject.
Plus If Valve doesn't put down Dolphin, Nintendo can make some barriers for ports to Steam.
Hell, even before that, as it is possible to connect a Switch Pro Controller to Steam officially instead of being forced to use outside applications
@@TeknoThomI don't think that was really a matter of business partnership so much as valve just deciding to make intermediate controller software.
I think it’s more than likely Valve doesn’t want to get involved. Because they stand up for Dolphin now they are on the hook too for all the legal fees. So Valve has to say is this the fight that we want to fight.
A prior game port to a console is definitely not indicative of some coalition. Valve clearly did not want to host free illegal content so they had nintendo nip it in the bud.
I graduated from Berkeley Law School a few years ago, and I was so happy that there was a class on video game law. This area of the law is so ill-defined and yet it involves such a large industry and market while featuring a unique patchwork of IP law.
I wanted to thank you for this. I stumbled upon your video and you did a wonderful job. Your breakdown of the decisions and brinkmanship was exactly right, and these are the considerations that motivate choices regarding litigation. I am happy about you pulling back the curtain on that process, as I feel it is important for the public to know.
Great job.
One of the best breakdowns of emulation legality I've seen on this platform, subbed and liked, well done.
37:36 delivering this line so straight and moving on with zero pause had me rolling. frankly this whole channel is consistently funnier than you'd expect.
really interesting and informative video. as usual. def one of my favorite YT channels.
i did a double take at that line and was shortly crying
Wow. Was not expecting the Hitchhikers guide parody song at the end and was thoroughly entertained. Thanks again for the very informative and easily digestible video Moony.
anyone here after the yuzu lawsuit incident
Update: Yuzu and Nintendo reached a mutual agreement, yuzu will pay $2.4 million in damages to Nintendo to settle their lawsuit, the Yuzu devs probably decided to take the bullet to avoid making a precedent in court if they were to lose
I'm surprised they have that kind of money to pay the 2.4 million settlement.
@@mingchenzhang3113 to be fair they were making around 29,000 at month on patreon so it wouldn't surprise me if they do have to money to pay.
@@miguelangelucsanchez183 It would take 7 years for them to make 2.4mil from patreon at that rate though, yikes. Hope they had more revenue streams than that.
@@miguelangelucsanchez183 I didn't follow them and just realized they make money from it, yikes.
@@keving9770 and the switch has been out for 7 years. Maybe that's how the sum was reached...
As one who is pro-emulation, this was a very enlightening video to watch, seeing just how much of a tightrope it walks on.
Same here. Emulation is LEGAL!!
@@DJNightcoreHD if an game DEAD and who made it also no longer with US
Would they care
0% because is no longer profitable
because the only copy left is downloadable for everyone to take
I am fearful about it going to court due to the part of encryption being the part Nintendo picked for what to say first about why they would do it. Then you have how WINE works to get windows to work on linux and how proton works to get windows games to work on linux. Effectively emulation of the windows environment on a linux OS but Microsoft can't sue them as they aren't using any code from windows. Now if it goes to court that might cover both the encryption as it is about the cryptographic keys and the point that it is an emulator.
I am pro encryption. Even if you don't know it is happening if you have a windows computer you have encrypted files for some it is when it is in the CPU and system RAM that they are encrypted but not when on the storage media. Depending on how the ruling is worded that might become illegal to have happen and many people's computers an illegal to own device due to what happens without them knowing it is happening nor them caring it is happening for security reasons.
@@Stormlywing They probably care because that means less people to purchase their newly released games. Essentially "If they're not spending their money on our new games, they don't deserve to game at all" is how these video game companies view emulation. Remember, they are never your friend, they just do what's required to entice you to pay for their games/services.
Thank you for finally tackling this issue and making it clear and easy to understand what's actually at stake and what is Nintendo actually alleging. When it comes to legal matters, especially those surrounding Nintendo, it's sometimes really annoying to sift through hateful opinions to get to actual facts.
Whilst I'm a strong believer of the lgality of emulation (one done by actual reverse engineering that is) I do alsto think that Dolphin's devs got overzelaous in their persuit of following in the steps of RetroArch without actually stopping to think how does their platform differ from RetroArch's.
I've used RetroArch a bit and didn't know it was on Steam. How does that work? I've noticed that RetroArch seems to be more of an emulator platform than an emulator itself so does that afford it protection?
@@jedimasterpickle3Maybe a bit more, but they do facilitate access to the cores, so it's a toss-up
@@NovaMaster375 Yeah that's what has me wondering. It lets people directly download the cores of other emulators to use, and I'm pretty sure Dolphin is included in there as one of the cores.
@@jedimasterpickle3 I think the difference is on the steam version of retro arch you cant download every core. The ones that can be downloaded as DLC don't have the same decryption key needed for games to play. This follows the argument in the letter Nintendo sent since they are not going after the emulation part of Dolphin but the fact steam would be trafficking in the method of the games being decrypted.
@@rossm83 I see. Thanks for the explanation.
Being a law student, this channel appeals to me in ways I didn't quite imagine a TH-cam channel ever doing. This, along with other legal asides in previous videos have been really interesting to hear, and touch subjects that I'm pretty invested in that I rarely see beyond passing or ill-researched mentions in other video game related content. It's really cool man, I hope you keep up the good work.
Welp, Nintendo just pushed the big red button.
Yuzu kind of forced them
@@hass556 but Yuzu paid up for them to dearm it again. Hopefully future emulators dont get as arrogant...
That last bit, on the unspoken rules of engagement and the favorable but legally blurry status quo, I feel like it applies to so much of the modern internet. There is a ton of stuff out there built on blatant copyright infringement, which very few people feel is wrong, and which companies take no action against. And there is so much more that has never or rarely been brought to court and is legally grey. So much of the internet relies on this legally unsettled status quo, it's kinda crazy it's still holding on, I wonder for how long it will stay like this. Maybe new laws will clarify the matter.
I think the reason companies don't shake the bucket is because the companies with the money to set the legal precedent are too big and scared of risk. And this is definitely risky, because the public opinion is not on their side. And, even if they *did* win, it likely wouldn't change much as its hard to enforce things on the internet as it is a fundamentally *decentralized* paradigm.
@@zyansheepI mean it ultimately doesn't matter, it literally doesn't cut in their profit margin enough that they aren't still having company growth and any action taken would just be cruel and monopolize the market even more than it already is, which is TERRIFYING I mean looking at how South Korea is conducted alone is reason for concern for the tech monopolization of the market.
@@zyansheep It's a similar situation to Ad Blockers. Companies don't attack it legally because no matter the outcome, they lose. Lose the case, Ad blockers become more prevalent. Win the case, and website become far more liable for quality of ads they allow.
The internet is rife opportunities to fall victim to the cobra effect.
The real mess was back in 2000s, when everything was chaos thanks to the p2p revolution. A few companies went heavy on copyright enforcement, which was somewhat effective, but also made them into internet super-villains despised by all. When big record labels were suing people into bankruptcy for downloading music in order to set an example, it was not good PR for them.
@NotSpecialDude yeah I noticed that all the attention google is giving to ad blockers is making people be more aware of them, also I'm not sure about other people but me and one other friend switched to Firefox after hearing about the manifest v3 stuff
Something to consider: More than 80% of *all* game releases are currently unavailable for legal purchase.This includes both console and PC games. But, dispite that fact, the ESA (whose body comprises of many of the parties discussed in this video) has consistently lobbied against game preservation efforts and laws that would allow the distribution of archived games. The reason cited being that consumers having access to older games, even in an archival capacity akin to a library, would disrupt the sales of newer releases in an unhealthy way.
Game companies arent just after emulation. They're after *all* forms of game preservation for the sake of their own profit margins.
For all the talk around the issue of so-called 'game preservation', I don't really see many arguments as to why it's necessary for the public to have perpetual remote/digital access to every game that's ever been released. The primary motivation behind this still sounds to me like wanting free games, but of course, when push comes to shove, people will fall back on more ostensibly noble arguments that don't even apply to most people (including most of the people who will offer these arguments) that generally fall under the umbrella of 'research'. I won't deny that there are people interested in genuine preservation/archival of old games, but let's be real. For as selfish as the games industry is claimed to be when it comes to accessing older games, the gaming community is arguably just as selfish in arguing that they should be allowed access to them by any means necessary.
@@qactustick That whole mindset is why I don't give a fuck about that anymore, if there's a game I want to play, and I don't have the means to do so (the console and the physical copy itself), I just download the emulator, the rom, and play it. I don't need to come up with an entire reason for doing so.
@@qactustickit's because video games are art. An interactive medium. Telling someone 5 player bomber-man was fun is very different than playing 5 player bomber-man. Imagine if no one preserved any films, or books, or paintings. Art should be preserved, and games are the ONLY medium that isn't done digitally.
@@qactustick because games are an art form.
imagine if all the historical paintings in the world vanished, or if all the most beloved tv shows and movies ever made disappeared never to be able to be watched again.
Not only that but EVERY TECHNOLOGY PIECE IN THE WORLD HAS A DEATH DATE.
Boards, chips, discs, drivers, everything and anything dies. Discs will decompose, hardware will stop working, and whatever is stored in it will become unrecoverable.
That's why game preservation is important, and thats why emulation is important. Hell one would say that's why Piracy is important. Without piracy, everything preserved will have no reason to be preserved, why preserve something that you can't get anymore, if you can't even use it? That's like if making copies of books was legal, but you couldn't read those copies long after they're no longer being sold. What would be the point?
Unfortunately all kinds of preservation will lead to some sort of bad thing being tied to it. That's just the price of keeping something around forever.
As Gabe Newell has said, 'The easiest way to stop piracy is not by putting antipiracy technology to work. It's by giving those people a service that's better than what they're receiving from the pirates.' This is an industry problem, not a problem with society.
The gaming industry, or just, industries as a whole, need to either allow for infinite affordable or free access to their older works, or let fans do the game preservation and piracy of older stuff continue on
@qactustick it's a little hard to take this argument seriously when console manufacturers and game publishers have shown absolutely no intention of letting their older titles be playable long term outside of the means they dictate, let alone as they were released on their original hardware. From my point of view, corporate greed is demonstrably more harmful to this medium than consumer Greed, seeing as one party has IP control and immensely more capital than the other. And those two factors alone shouldn't be what dictates the direction an entire art form is pushed in.
And this isn't even delving into all of the issues inherent to the used game market and the sustainability of that market long term, seeing as the goods that drive it are both out of production and have a limited shelf life.
The breakdowns really helped to double check if I was taking in the legalese right and thank you for having a list of tracks used, not enough creators do these and your effort shines in these small details.
Would be very interesting to see you cover the Yuzu case. Again, the case didn't result in some broad ruling on emulation and settled instead, but going through the details of exactly what Yuzu devs did wrong to come out on the losing side could make for a useful cautionary tale.
I call bs that it was about the Patreon. Nintendo were just petty and wanted to blame somebody for people downloading their $70 Zelda game. The Yuzu devs knew they were going to be stun locked by Nintendo's legal team into bankruptcy and it wasn't worth going through any sort of lawsuit that's a lose-lose situation. Personally I never liked the idea of granting features through Patreon but I didn't want to see Yuzu die because of it. I'm just sad that Citra ceased as an effect of this.
@@PipeGuy64Bityup yuzu I can somewhat understand but citra hell no and there is Absolutely no Justification for that just nintendo being petty
This conversation is important as we tackle the "87% of videogames before 2010 are gone now" issue. Of course these companies have no reason to preserve their older games as they don't return as much a profit as modern pokemon, zelda and various other franchises but with examples like the recent Gex series coming to modern consoles... there's very much a massive market there that's not being taken advantage of.
If people stopped licking the boots of Mark Zuckerberg, Microsoft, Nintendo, Nvidia and basically the majority of the entire film industry, the world would eventually become a better place.
SO history of our past wars should be forgotten and throw away too. Explains why my people are so abused today in Canada. You have no idea what this brings.
@@TheExileFox Just say "fuck capitalism", it's shorter
@@Robert_D_Mercer? Dafuq do wars have to do with video games?
But the value of that Gex collection is based on the long period of time when it wasn't available. If everyone had easy access to an emulated version all the time, the compilation business model falls apart. Publishers want to sit on popular IP until demand reaches a certain point, and then push a remake or remaster to grab all the old players that have nostalgia, AND the brand new players who have heard of the original game but NEVER GOT A CHANCE TO PLAY IT.
Holy cow, that ending was chilling. 39:24
This video made the debate so much easier to understand. Thank you so much Moony!
(And I love the Hitch Hiker's Guide to the Galaxy parody. XD You have a great singing voice!)
Emulation will never end. Anything else that's banned is readily accessible just by looking harder. Ex: no one wants to host certain types of AI deepfake software due to questionable legal status, but I'm one url from a site hosted in Kazakhstan that will give me that software.
It's amazing how this guy can make a dull and boring legal argument sound like we're standing on the brink of the roman empire being invaded.
@@DrTheRich the rest of the video had good legal analysis. It's just that one part at the end which is a little...overblown :D
@@pickler_pickler I'm kinda ok with modding being illegal, i started my career as a modder. Not the horse armor type, but the one modifying games binaries. I never thought it was legal, but never cared.
People who want mods know where to find them, if you don't look, you don't care enough.
I'm a romantic pirate I guess...
@@DrTheRich Yeah, so lets just give up freedom and let mega companies control everything. Why the fuck should they have the right to ban modding?
*Absolutely everyone* should know by now that when it comes to ANY form of emulation or even modding of Nintendo software, you MUST keep it on the down-low!😅 Dolphin out here trying to put their hand on the hottest stove in the universe and shocked to find their hand is incinerated. Y'all we MUST play it safe with Nintendo, even us who simply enjoy playing old games in emulation.
I'm totally in Dolphin's corner, but I'm also scared this may cause Nintendo to erase more emulation software out of existence. Remember how they made a patch to 3DS's after they shut down the store to PREVENT emulation? So petty bro...
While I agree, people on Reddit and such talk about AMR2 all the time. I guess Nintendo simply can't stop what's out there, nor the methods used to update it.
So as someone who has never used dolphin i find the encryption key argument from Nintendo actually to be pretty interesting, because of all emulators I have studied on a technical level they make an explicit point of not including the encryption keys in their code in any form, instead having their emulator depend on a magical third party wizard in a way:
Yes, I understand an ROM that magically exists in a state where sony/nintendos encryption is simply already gone, but I am helpless if you ask me to do something on a file that exists with copy protections on it. Do not bring me files that have protections on them, I can't help you that. You need to use your own hardware to rip the encryption keys (Yikes,) or get official hardware to decrypt it for you (As backups are an unsettled topic, still questionable, but much more steady ground where I see emulators have a chance to seriously stand their ground.)
One called citra, for example, uses a complicated process that involves your 3ds's SD card, to use nintendos own hardware to do the decoding for you (Plus you get to keep your saves when you do this, so having a save that is directly shared, in common between your 3ds and your computer is very strong evidence you did things this way.) Sure, many, possibly most users, might be sharing third party files that have nintendos protected keys in them instead of using their 3DS to get a file loaded in an unencrypted state, but citra recommends that you not do this and offers no public facing integrations to let you use them, you need to do this yourself.
If dolphin works with roms that lack this need of a wizard, that I find very interesting because in the technical history of emulators I have studied, this has simply not been the case because the makers of other emulators have explicitly steered clear of this on a technical level explicitly because of the unsettled law, and that, if dolphin were to go down, it would need to do so in a highly specific way even effect most emulators which nintendo, and especially sony would be worried about. (And given dolphins open source nature, it would be possible to make a branch of it named something like Orca which follows citra's model. Thus retreating back into unsettled law.)
However, of course, having dolphin directly in steam probably isn't the wisest, because I doubt having steam broadcast you are using dolphin is the best idea, as if you do not have a wii rigged up to your computer providing you nintendo driven decoded backups (Which still may or may not be legal,) you have a very high risk of being in violation of the law.
Now, I am not a lawyer. This isn't legal advice. I am not a wizard who has seen the possible state of future cases. Its possible that the courts might rule against users backing up things which they have bought. However, I can note, even in the concerns brought up here, that most emulators have taken steps to insulate them against the potential falls that dolphin could face if they did include these keys. Even ones which are old, 15 years or more. It would be more strange to me if I read dolphins source and found those keys then if I didn't given how long of a history all other emulators I have read have had in not using these keys whenever possible.
nintendo’s new complaint against yuzu is basically arguing that it doesn’t matter if the keys aren’t provided by the emulator, the simple act of circumventing copyright protection methods is a violation of their rights. hopefully this argument doesn’t hold up in court cause it could jeapordize the entirety of game emulation
Man the fact that citra willingly terminated as a secondary side effect of a case which didn't directly address it, and didn't end in a court case makes my post age like milk.
Here I was thinking that specific one might be unusually hard to knock down because of the specifics of what it was standing on, but I suppose them yielding instead of fighting a years long legal battle is totally valid. Especially if it shared developers with something that might (Or I could have been fully wrong here) or might not have been more vulnerable.
Really unfortunate.
@@WalrusJones185 yeah. hopefully citra development will continue, just under other devs
@@mcbaws21 I'm fairly sure its open source, there likely is forks of forks of forks over too many repositories to count over a handful of hosting services.
Still, Nintendo has fragmented things into parties that are likely (But not certainly) smaller and easier to intimidate into settlements at this point.
@@mcbaws21 Wait actually the developers messed up so hard if what they did with Yuzu I've heard about right...
They had been releasing patreon only improvements to running TOTK, before you know, TOTK actually came out.
So proving they had pirated a game, and actively selling access to the ability to pirate it for a window of time....
I can see why nintendo targeted them instead of the longer running dolphin.
Moonie, not gonna lie your channel made me love IP work as a law student. Applied for a bunch of associate positions doing IP law!
But is not the entire field based on the violation of the right of private ownership?
@friedrichhayek4862 I mean not necessarily, even in this video, there is a small, very small precedent for the contrary. You can help solidify with less shaky precedent the protecting of emulation. There are probably other laws that can also help and protect or even create more room for public domain stuff. I'm sure something is not blatantly awful about it for consumers.
@@user-th1pv6ks5o How not?. The core fundation of IP Law is that is you have an idea and implement it, you are granted monopoly over the production and distribution of implementations, there is not room for being less than a violation of human rights.
Congrats!!
Please fight for public domain and protecting ownership of consumers!
I don't get why dolphin got so ballsy as to want to get a place on steam. It's a legal grey area, and things were doing fine in the shadows. A steam release feels so naive and reckless.
because some people think they are Batman(except without his wealth unfortunately).
They had a simp bomb and needed to dispose of it... or was it to attract more?
Point is, this emulation stuff goes glacier slow and the further from mainstream is probably better for all us.
Last thing we need is someone swekering it and ending it.
@@Subject_Keter
Imagine all the tiktok kids accidentally nuking dolphin the way they did an e-books dl site
It's not legally grey though? It's pretty much settled law that Emulation is Legal. Bleem! was a thing. They won their case against Sony. It just bankrupted them in the process.
I mean given that dolphin is a free non-profit site, I doubt they 100% knew that was going to happen, given that legalise is hard to decipher, the rocky ground that precedent stands on may not seem shakey when your standing still, and we are watching a video from a trained lawyer breaking it down from his professional view of the situation, and making it a lot easier to digest than what someone who didn't spend years in law school just reading the law, would pick up on first glance. Moon even makes a funny jab, at this predicament within the footnotes and how something that most people aren't picking up on in the discourse is a huge red flag for him. And if Dolphin isn't working with the most diligent lawyers again given their limited resources comparatively to the two media conglomerates I can see where the oversite could be had, especially before Nintendo said anything especially when this was working well for 10 years.
I feel like you need to understand your perspective before and after the video to understand Dolphin's pov with the probably limited resources they have, compared to large media conglomerates like Nintendo and Valve. And also the coporate consolidation between these companies, that Dolphin maybe couldn't have predicted given how steam was willing to host their emulator.
Like I don't think they were trying to be batman, like some comments suggest they CLEARLY didn't because they put their emulator on steam and tried to broadcast as such. Their was probably oversite, and because they aren't a corporation with 10,000 of people and can afford lawyers worth 100,000 of dollars, it is an understandable oversight given how notably, by this videos own admission, unprecise the law is.
I do hope other emulators see this video and understand their position on any future prospects though I think that this oversite can be avoided with how well communicated and easy to understand this video is.
Coming back to this video after nintendo is suing the Yuzu devs and just like this video said nintendo is avoiding the 1201F trap in their argument.
We''ll see what happens later
Edit: Also The Yuzu devs may have gotten themselves into a bigger issue since the were using patreon to finance the development of Yuzu., they were making 29,560 dollars at month.
At around 30 minutes in, you actually start telling the story of a very tense, intrigue laden hidden war that's actually sounds really cool! Ik it takes place IRL but it kind of reminds me of the story of Starcraft: Brood War - you've got a bunch of not-exactly-friendly factions that kind of work together but nobody really know what's gonna happen next. Pretty cool!
I think ultimately it's not a matter of if the big red button is pushed, but a matter of when. The issue of game preservation is not going away, and it will continue to linger, and it's been escalating in recent years. Emulation plays a massive role in preservation. Eventually something big is going to happen, the button will be pushed, and a legal precedent will be set. So brace for impact, and enjoy emulators as they are while you still can, because there's no guarantee they'll stay around as they currently are in their present form. Big changes are coming, and it's likely things are going to get A LOT worse before they get better.
And Nintendo themselves have already benefitted from emulation, IIRC. I want to say it was the original Final Fantasy that they had actually erased all of their own copies of, and when they wanted to re-make it, they actually had to get an 'illegal' rom to do so. I may be mis-remembering, though.
@@colinsmith1495his sounds wrong to me, since publicly available roms are typically dumped from actual cartridges. I’m pretty sure it’s legal to “back-up” your own copies of purchased games just as long as you don’t redistribute them.
Small correction: final fantasy is owned by Square Enix and not Nintendo. It’s likely Square could’ve just bought a physical copy of whatever Final fantasy they were looking to port and dumped it themselves. But they could have easily just downloaded a rom and done it that way as well.
Not necessarily disagreeing with your conclusion as Nintendo could have likely benefited in a similar way sometime in the past. Just thought I’d sprinkle in some context
@@LitPasta It's an ELUA violation to dump your own but that's a lot harder to enforce. Nintendo also doesn't have to follow their own user agreements.
@@mattwo7 EULA terms are generally completely unconscionable because the end user has no negotiating power, and many of those terms typically violate their consumer/customer rights.
@@boyishdude1234 Sadly, If it's not against the law to put something in a contract, it's still valid regardless of ethics. This isn't like the Airport Master lawsuit where the ELUA's terms were completely illegal.
Slight correction at 3:00 : An emulator mimics a console, but a ROM does not mimic a game. It IS the game. This was slightly kinda sorta touched on in the video with the mention of patents, but allow me to clarify. (Full disclosure: I am not a lawyer. I do have a degree in game design, for whatever that's worth. Also none of what I am about to say is particularly relevant to the overall point of the video, but I still think it's salient to note.)
Game consoles are physical, manufactured hardware. As such, they are (with the exception of digital components like the OS, bios, etc) protected by patent law. You cannot simply manufacture a PlayStation 5's internals and sell it with a different shell as the "GameBox" or whatever because doing so would violate Sony's patent. However, patent protect only the design of the physical device. An Emulator does not use physical components, it EMULATES them via code. As long as none of the code it uses is copyrighted (see video) it is theoretically not in violation of any IP law and is, therefore, legal. The console is hardware and the emulator, being software, is fundamentally unique. It is a mimic of the hardware but is, very specifically, NOT the hardware.
Now, you could attest that the USE of a ROM mimics a game cartridge or disc, but that's not really what a game is. Physical media is just a containment form, a carrier, that was devised to make handling and distribution of copies of games easier in the days before digital distribution. But the physical objects are not themselves the games. The actual games themselves are digital code, and thus subject to protection under copyright, and ROMs are literally that code. They are, fundamentally, the same thing. A game ROM does not "mimic" a game's code but rather is an exact one - to - one copy of the game code. It is very literally the game itself, sans physical carrier. This is why the distribution of copyrighted games counts as a violation of copyright, and is therefore illegal.
Sorry for the huge wall of text over a relatively minor detail, I'm just always worried about people misunderstanding these sorts of things. This video was fantastic, I thought I knew the emulation legality issue quite well, but I ended up learning much more than I expected from this. Well done!
Correction of your correction: Hardware emulators that have physical components are a thing! Namely FPGAs (Field Programmable Grid Arrays). MiSTER and Analogue are FPGA based hardware emulators. Even some ROM cartridges have to emulate some special chips that used to be found in cartridges themselves for some games.
@@avasam06 FPGAs are not physically the same as the hardware components though. They are programmable so they're more like software in that sense. They're like hardware that behaves like software. The program to become the other hardware is unique to the FPGA.
My question is, why are there so many big websites that contain the roms and are available for download if they are illegal. Why do companies don't sue those webpages and focuse more on emulators than the actual games (ROM) themselves that the emulator plays? I would guess they have a bigger chance of taking on them than the mulators since the emulators have a grey area and the ROMS don't
@@Nobodyfrom2003 They are sued when possible. And many have been taken down over the years. Sometimes the owner can't be sued or charged in a country that matters.
@@Nobodyfrom2003 Most of those sites, I assure you, are hosted on Servers NOT in a NATO Country. An American or Japanese Company trying to sue someone in Russia or China (who have vastly different local copyright laws) ... not easy. Sometimes they will pursue when the damage is big enough to be worth the effort (Lego suing the Chinese Lego knock-off company Lepin for example), but most of these Illegal ROM Sites on the Internet, especially when the Server Hosting can just be moved easily enough somewhere else? Difficult.
So, you are allowed to make a new printing press but you can't print the books without 'licence' to do so. Thus roms are illegal but emulators aren't?
Hm, that's actually not a bad comparison! I'll have to remember this analogy and think on it. You should be a lawyer, wepped!
I never even questioned that it might be illegal to dump roms of your own games. I mean, there is literally hardware being sold to do just that, for people who want to preserve their own games in digital form.
Kudos to Capcom for oftentimes including rom files with their digital releases of older games. THAT should be the gold standard.
it's not illegal (in the US), period. any private citizen has the right to make personal archival or backup copies of their personal possessions. dumping a rom is legally the equivalent to saving your music CD as MP3. playing the dumped rom is the same as playing a burnt cd copy in your car so the original doesn't get scratched. private property is private. just don't sell to the public copies of things to which you don't own the distribution rights.
In the case of the Gamecube and Wii (especially pertinent to Dolphin here), making backups of games on a softmodded Wii is braindead easy and requires no extra hardware. I can understand the argument against backup devices sold for profit with older consoles and how those might be illegal under patent law, but that doesn't apply to the modern era of digital game storage that the Wii was pioneering.
Actually it's interesting that the "patented NES lockout chip" that got Tengen sued out of existence now has its functional equivalent in illegal numbers, like the Wii's encryption key that seems to be at the center of Nintendo's legal reasoning against Dolphin.
@@TheJacklikesvideos DVD and DeCSS I think is an interesting case to combat Nintendo's claims and maybe worth Dolphin being proactive in seeking injunctive relief. This could be a good case for the copy left, GNU, and related parties to fight against these provisions of the DMCA that clearly conflict on ones ability to make backups and media conversions under fair use terms of copyright and patent.
The other major option is to strip the specific keys from Dolphin and provide an interface for it to be provided by separate service or manually entered by the users or works with ROMs previously decrypted by the user or converted to a format that doesn't conflict with Nintendo's keys.
Another option would be for Nintendo to conduct some limited licensing agreement to lock Dolphin into only working with licensed Nintendo content on the steam version. Then Nintendo could release classic ROMs on steam at some bloated price.
Ultimately, Dolphin screwed up not by advertising their emulator on a large platform like Steam, but by including proprietary code in their emulator. Apparently this inclusion was even pointed out to them by a random user several years ago, but they essentially ignored them. So they even had an opportunity to correct this mistake but pressed on anyway.
Unfortunately (for people emulating) it's not entirely that simple. It is true that they could do that, but to do so would require one of two things: either people in general supply the key in a file (meaning you've only moved the issue to a potentially even worse place - and now emulation being legal *even if you dump your own games* is itself in trouble due to the anti-tamper clause) or you require decrypted dumps of every game, which would be required to be done on console to keep in line with not actively circumventing any form of DRM. It's a pretty nasty legal trap, and the way out is thorny but still possible.
This would mean that all current ROMs of the games are effectively useless and that they would need to all be re-dumped. Even if we charitably assume that everyone rips their own games, that's still a truckload of effort, and it's even worse when you consider how many games even exist to be preserved.
That being said, all of this assumes that Nintendo doesn't have a follow up attack, and I think it's quite likely they aren't showing their full hand. There's no reason for them to.
@@WishMakers The thing is, at the end of the day, the amount of effort that might be needed to course-correct is irrelevant. That's not really a basis for a legal defense. If something about the emulator is deemed illegal, then if the Dolphin team wants to keep distributing it (legally, at least), those aspects of the emulator must be changed, or the law must be reinterpreted to allow it as-is.
That being said, I'm no expert on emulators and how they all work, but based on the numerous other emulators that're available for other platforms, I have to imagine that Dolphin just cut some corners here. That, or is the Wii the only console that uses these keys and other emulated consoles don't even have to worry about it?
@@qactustick My -- perhaps somewhat inaccurate -- understanding of the situation is this: An emulator always needs either a BIOS dumped from original hardware, or a reverse-engineered set of substitute cryptographic keys built in, to work. Generally speaking it seems like if the system just boots straight to the game and does nothing else, you can get away with just the keys (NES, SNES, Genesis, N64, GB, GBA). But as soon as the backend hits a certain level of complexity, say for memory card management and etc. (Atari 800, Sega CD, PS1 and onwards), you need a BIOS.
"But wait, I don't need to download a BIOS for Dolphin," and therein lies the problem. I don't fully understand how they went about doing this for Dolphin specifically, but what I do understand is that they got sloppy with it and _may_ have even broken Clean Room design, effectively just poaching code from the original BIOS for the emulator without following proper reverse engineering principles.
If it's even feasible to fix at this point completely regardless of the looming attention by Nintendo's lawyers, I have no idea, depends on how they built the codebase and if they even acknowledge it as something that should be fixed, but they've already screwed the pooch regardless. Even if Nintendo leaves them alone, no way in hell is Valve letting them onto Steam now, despite RetroArch already being on there with dozens of emulation cores for other systems, Nintendo included.
Maybe Dolphin was trying to get acquired by an investor, similar to what happened with CyanogenMod.
@@MediaMunkee The cryptographic key issue seems related solely to the Wii. GameCube discs are unencrypted (Nintendo relied on other factors, such as using a non-standard disc format that couldn't be read by regular drives, as their anti-piracy measure), so once you dump the disc, you'll have the plain data. If you do the same with a Wii disc, the resulting dump still is encrypted until you use the Wii common key to decrypt it.
Regarding the BIOS, games from that generation ran "directly" in the hardware, the BIOS (or IPL, on GameCube's case) essentially did basic hardware initialization, then handed off full execution to the game. Those initialization routines have been reverse engineered ages ago (pretty much since the first public Dolphin version from 2003), hence why you don't need a IPL dump to use Dolphin. Some other emulators using a similar approach for other consoles includes Xebra (for PS1) and Play! (for PS2), they also don't require BIOS files to work...
Wasn't expecting the outro song. That was sick lol great vid, as usual, Moon
The nod towards the free software movement as a whole was good, I wish you would have lingered on it even more. The US, and even moreso the EU, have made some very concerning moves to ensure that software is "secure" and "private" at the expense of being free (free as in commercially free), but without being commercially free, being free as in freedom is very difficult for a software developer. If Linux or full-disk encryption or webserver code ends up targeted, whole industries could be instantly turned into legal monopolies (though they would have to work hard to replace the need for continued development of their free code foundations). We have seen this recently with multiple EU proposals and with the arrest of some weapons traffickers on the grounds of suspiciously secure *software* activity, rather than their actual crimes.
Everyone's comments are so supportive and I echo all of that, but one thing not enough people are talking about is that ending song.
I love it! I didn't know you could sing, Moony; you sound great! If that's also you playing the guitar, it's even more impressive.
Every video is incredible, and you're teaching me so much. Please never apologize for the "legal mumbo jumbo"; it's why you are so much better than everyone else that analyzes these situations. The care and consideration of all sides that you put into this is so unique and something only a lawyer could do. Amazing work, and I can't wait for whatever's next!
If making game backups is legal, but playing said backup is illegal, then what even is the point of making a backup ?
Therein lies the issue, right? The law itself is very unclear, to the point where the conditions are practically undefined here. Playing the backups is ostensibly legal, but there's nothing that makes it so, and there are arguments against that legality if one party or another wished to push the issue.
Not sure how legally binding it is, but I actually checked the instruction manuals I have for several Nintendo games dating back to the Gameboy color and a lot of them included this message or something similar:
WARNING: Copying of any Nintendo game is illegal and is strictly prohibited by domestic and international copyright laws. "Back-up" or "archival" copies are not authorized and are not necessary to protect your software. Violators will be prosecuted.
@@angeldude101 And this is why people need to stop buying into this garbage :-|
@@angeldude101 LOL, "and are not necessary to protect your software", this is just hilariously wrong given everything that's been happening in the games- no - software industry in... basically its entire history. Games older than a decade old being playable is the exception, not the rule. Lots of old commercial software is lost, or would be lost if not for active archival efforts. There are even *several* cases of companies (including large gaming companies, not certain about Nintendo) losing their own software and having to use pirate copies to recover something for a future product or re-release.
the song at the end is so so sweet! thank you!
great video ... and I was pleasantly surprised by the beautiful music at the end!
While I haven't delved into emulation myself, I am in strong support of it. Particularly when it comes to preservation, as games are the hardest medium to preserve..
I’ve had the idea that there should be a law requiring all entertainment companies to provide preservation societies with copies of all their works, not to be utilized unless they choose to disown their works or they’re lost.
Ninnytendo can suck it! I'm not buying hundreds of dollars of retro game merchandise when I can go and just play it on an emulator, if the company allowed access to their older content in a modern format like emulators this wouldnt even be an issue
@@lalehiandeity1649 Securely archiving stuff like a seed bank is all well and good, but these games should also be accessible to everyone like how old books are accessible through libraries.
@@MrMoon-hy6pn People tell themselves its about preservation, but really there's no reason for every individual to preserve games like that. Nintendo owns a private library where you can access SOME of those older games. Some other games are not under Nintendo's control (old third party games). Maybe there should be a public library that can compete against Nintendo's private one, but there literally ARE public libraries that lend out games.
*Obligatory redditor argument voice*
_uhm ackshually something like tattoos would be harder to preserve_
As a Law Student, I must say that I love your approach to those contents.
It is informative even to people outside our bubble but still manages to not oversimplify. I hope you continue making videos like this.
I love emulation and use the steamdeck for retro and modern emulation...but my gut tells me that its kinda effed up to be allowed to effectively copy a console. I feel like if I were to invent my own gaming console, I'd be pretty upset at the fact that it would be made available as a free download to anyone willing too look for it.
To reverse engineer a console as software is one thing. To provide the result of that reverse engineering online for free can't be right.
I can totally see myself siding with Nintendo here, despite the fact that I 100% take advantage of emulation.
your use of the good ol' zsnes file load menu as an example of emulation warmed my heart :)
So, from what I could understand, Dolphin made TERRIBLE mistake, one that big companies like Nintendo have been waiting to make their case against emulation. However, Nintendo is afraid of pushing more serious legal action against Dolphin in fear of creating another Connectivix/Bleem moment and adding another "if" that could be used to protect homebrew emulation. Both sides have a lot to gain but also a lot to lose, so a return to the status quo is preferable.
But seriously, emulator devs should stop trying to bring their emulators to big storefronts. Makes me think how RetroArch hasn't been sued yet. If Nintendo wins, would that open precedent for companies to target Linux distros because their package managers also distribute emulators for free?
RetroArch doesn't make any of the emulators that works with it. Nor do these emulators come with it.
It'd be like if nintendo went after valve for allowing you to manually add dolphin (or any other program) to your library as a "non-steam game".
@@toastman41000mlhe retroarch cores are on steam as dlc to retroarch, for free. There is almost no difference to it coming with them.
@@IceYetiWins In theory they could ditch all nintendo the cores on steam. It is fairly trivial to use non steam version of retroarch to import cores to the steam version. Dolphin in comparison only does gamecube and wii, and it does so put of the box. Retroarch requires some setup at least.
It's because retroarch distributes no copyrighted software, all the included emulators need decrypion keys or bios that are not included, at least on its Steam version. If Dolphin would have had a key system similar to Yuzu's Nintendo wouldn't have a clear infraction to sue.
IMO, another 'Connectix/Bleem VS Sony'-like case is unlikely. The general public is in favor of siding with corporation (Won't someone think of the billionaires?🤣/s) these days, and emulators don't want to risk what unsteady footing we still have.
What I think Nintendo actually wanted is for Dolphin to respond and give Nintendo a chance to make an "emulation is illegal" case in a courtroom. As we've recently seen, precedent can be overturned, if the judge is corrupt enough...
Obviously Dolphin shouldn't have been distributing keys (And it's not the first time they were warned about it) especially on someone else's platform, regardless of how easy said keys are to obtain but this chance is gone now. Best they could do right now is to get on some launcher and hope that launcher ends up on Steam, like Retroarch did. Lutris for example could probably accomplish this with a controller-friendly front-end.
(Funny, I made it to the end of the video and it seems we had a similar idea - Nintendo might actually have a case they think is worth pursuing)
Dolphins are endangered, prevent dolphin hunt together!
Nintendo must really hate endangered species huh?
I love this haven't even seen a second 😂😂😂😂😂😂😂😂
It's true tho ans look nintendos just the biggest one
And I'll admit they are GIGANTIC IDIOTS FOR NOT REALIZING THE POTENTIAL OF FREE USABLE EMULATORS
cuz remember, even this videos title.is incorrect they aren't against emulation..... they rely on it now like really bad... for all that NSO stuff IT WAS EVEN PROVEN AND FOUND OUT THAT THE NES EMULATOR THEY USED FOR THE OG WII VIRTUAL CONSOLE, WAS OUR NES EMULATOR THEY LITERALLY STOLE ONE OF THE PUBLICS MOST PUBLIC EMULATOR, it's in most Wiis code, like can't deny that shit hahahaha
He's a bit confused, but his heart's in the right place.
loved the little number at the end there, i really appreciate your unique takes on what tends to be sensationalized news
This is one well put-together video. Well fkn done
valve probably knew that emulation and roms are in a grey area, and so they didn’t want to risk being in the crossfire in case Nintendo were to also go after them for having it up on steam. to financially protect themselves, they preemptively brought it to Nintendo’s attention themselves
they also have been buddy-buddy with Nintendo in the past, with the Portal 1-2 bundle on switch, and the cancelled Half-life switch game
Not quite. there are nintendo cores available in retroarch. The main thing is that those specific cores either have no encryption keys, or are emulators that require you to download a bios to function
@@stormhought How do you know a Half-Life game was cancelled on Switch?
Something you have seemingly neglected is that the game industry itself doesn't seem to be completely against emulation. A lot of rereleases of retro games rely on emulation. There are several retro games on Steam that use emulation (There's even Retroarch on Steam, which I don't know how it flew under the radar.), Capcom used MAME for their Capcom Arcade Stadium compilations, PS2 stuff on the PSN uses a custom emulator. Even Nintendo uses emulation to reissue their classic games, such as the Virtual Console service, their mini consoles, the NSO service, and so on. There are development teams whose bread and butter are emulation work, such as Digital Eclipse, M2, Hamster, etc.
So if anything, it could make pushing the metaphorical "Big Red Button" even worse, as it could potentially kill off a cash cow of reissuing legacy titles without having to remake them from the ground up.
DOSbox!!!
No I think you misunderstood, the Big Red Button will be a fight to prevent "outside sources" to make emulators without permission. Nintendo or any other company could use an emulation of their own even if they push that red button, because they own the rights to their own codes. For Dolphin's case, Nintendo owns cryptographic keys like this video explained, so Nintendo would be able to use emulations for the Wii and GameCube, but Dolphin wouldn't be able to.
They can use emulation... They just don't want us to use it, unless we pay them for it.
@kevmasengale6903 exactly, but multiple times, because they tie games to the emulator so, having 5 retro games means paying 5 times for the emulator.
@@pakaman9101 All Dolphin has to do is stop shipping the cryptographic key and provide a way for users to provide it themselves. The key has been on the internet for decades, so it's not going anywhere, and this takes all liability off Dolphin and its team.
Well made, your truely a story teller and an educator. Keep up the good work mate.
Just wanted to say you did a wonderful job explaining the rulings to a layman. I was able to follow along without feeling like I wasn't understanding concepts mostly foreign to me.
This video was incredibly good! I've always been curious about the legalities of emulation for a very long time, so it is great to hear from a lawyer's perspective about all of this. My only hope is that the answer to all of this isn't a war between the corporate and the emulators, but instead an increased effort by the larger companies to preserve their older titles so emulation isn't even a concern in the first place. Let's just hope groups like the Video Game History Foundation pulls through with some developments on preservation.
Emulation is always going to be necesary, companies can't preserve the titles forever, for companies do close eventually, and some titles may end up in a licensing limbo that leaves them unrepublisable after some date. So emulation is not only something necessary, it is something positive. The problem really is never emulation, it is piracy, and piracy exists with or without emulation, there is nothing wrong with playing the game you paid for in the hardware you want, that is what freedom looks like, the fact that it simplifies piracy because in consoles they combat piracy by adding shit to their hardware is no excuse to condemn emulators, piracy is a separate issue from emulation.
@@diablo.the.cheaterfingers crossed that games end up being treated like other forms of media with proper effort taken by governments to preserve them
Man, I remember using Dolphin back decades ago. It wasn't so impressive back then, but it was sufficient.
Personally, my perspective is that, if the company hasn't made a dime off the game in a decade or more, then they're not likely to CARE if I use an emulator and rom to play it. If they're still selling it, I'm willing to pay if I'm willing to play. But there's a TON of history that just isn't available on a native system any more.
I also wonder how these kinds of issues will be dealt with as more time passes. Hardware is not infallible (especially kept under less than ideal conditions) and eventually many cartridges or consoles could one day become unusable, which doesn't lend the "buy it secondhand" argument much weight. Eventually, if there are no official ports or rereleases, certain games may one day only be playable as a ROM in an emulator.
And then the remaster is released a month later that you COULD have legally bought and played, but why would you be stupid enough to waste your money to support the company that made the original or the new release now that you've already gotten your full enjoyment out of your illegal copy? Oh, right... you wouldn't because you never cared about the company that made the game, only that you got to play the game.
@@JarieSuicune I stand by the idea that if you stop selling something for a time, you no longer have any moral grounds to your IP, IP exists to create profit, if you stop profiting for some time outside of circumstances, you no longer need the protection of copyright as you already made your profit, copyright should only ever be provided to the ones that are profiting from it every day, every second, or at the very least trying to do, if something you no longer care for, or it no longer gives you profit, there is no point in you having a special and unique monopoly on it, you already made your profits.
@@JarieSuicune If you wont sell something to me I wont buy it, but I will get it from someone else.
I have pretty much the same view. If I had potentially used an emulator the newest game I potentially could have played wasn't any newer than potentially 2012
Excellent video! It was easy to follow and very informative.
Thank you for researching and explaining it all.
I feel I understand the situation a lot better now. 👍👏
Your singing at the end is excellent! Great video
My new favorite channel!
No matter what happens, this is gonna have a worldwide impact for sure.
Amazingly done video in terms of clarity, music choice, narrative structure, and comedic relief.
We are essentially in the cold war of emulation, and the amount of allegories within this video to express that is not lost on its viewers.
A change is coming, good luck gamers.
Not much if you on phone running Android
if Google allow ( free movies sites and Emulators that made them mad )
So Google will not care about their lawsuit
they may have lot of lawsuit dealing with copyright holders losing money over google
It doesn’t matter what happens, writing something down on paper never stops the internet. They already tried this with file sharing and they lost that war horribly. Emulation is here to stay wether they like that or not. They can file all the lawsuits they want. Also, tons of countries don’t care about the DMCA, so good luck enforcing all those countries to stop being a safehaven for ROM sites/Emulator Devs.
@@7TheWhiteWolf yep maybe nintendo should stop being stupid and give us those old games so we dont have to emulate so much
on Linux PC guest what shows up
Click show more if you want my word
every open-source emulator
the one thing Linux stands for
is Open source
Thanks for the video
Btw the song at the end of the video was nice🙂🙂🙂
Wow this channel is GOATed. I'm honestly blown away by the analysis, memes, and the way you break things down. Keep up the great work, you deserve way more subs.
I love these videos!
Like, I'm still going to meep emulating old games regardless of legality, but i do love learning about it
MEEP MEEP!
It gave me chills when Gabe appeared on-screen and "Want You Gone" started playing. Not just a lawyer (or a good singer, apparently), you are an amazing storyteller.
I feel like the biggest hurdle to clearing up and solidifying copyright in the US is financial. The bigger company seems to always win even in losing the case since the legal costs are often too great for anyone or any company under a certain monetary value.
Nintendo is suing Yuzu over piracy, I think coming back to this video is a good idea to refresh us on what Nintendo could point to.
Nintendo is attempting to sue Yuzu on the claims that they facilitated piracy. There’s a lot of intent that Nintendo can’t actually prove because Yuzu has always been clean in their stance against piracy.
@@brandonkruse6412”clean in their stance against piracy” looks like somebody hasn’t read the lawsuit document
@@kekcrocgod6731
I don’t have to man. I’ve been part of the Yuzu community since they started. I’m very well aware of their stance on piracy and how well they moderate their discord to keep it clean of piracy.
That doesn’t mean you can stop people from using your software to play pirated games, it also doesn’t mean they’re responsible for every link that’s shared online for pirated content.
Piracy was part of it, but most of Nintendo's case hinged on the cryptographic keys, same as in this video.
@@brandonkruse6412 I've seen people claiming that they were promoting loudly that TotK was compatible day 1, I could see an argument that that was encouraging people to pirate indirectly rather than purchase the game, especially with it having leaked weeks earlier.
Everyone is talking about the Legal Mumbo Jumbo, which I love hearing about, but no one is talking about your phenomenal singing voice. Coming from someone who has an award for Singing, you have an amazing voice!
14:30 not going to lie I was thinking this and then you told me how impressed you are.
That scene was just funny to me.
Interesting and informative. Thanks for sharing and explaining this topic in casual (easy to digest) words. And your "Im glad that you asked" is hilarious!
One of the things that seems to be missed in many of these videos and cases is that DMCA is only relevant in America. Circumvention protection law was already settled in UK and in Europe back in the day of videocrypt and other similar systems in the early days of satellite television - and it's simplest terms the courts decided that it was the responsibility of the broadcaster to prevent circumvention not the courts. You also have to question if Dolphin truly do have actual crypt keys or if they have a way of operating without the need for them.
PEACE BE UPON YA MOON! :D how are ya? I’ve been gone a looooong time so I got a lot of catching up to do but while I just started the video all I can say is…thank God for Dolphin (and Project64 woo). I can’t imagine gems like Mischief Makers or Chibi Robo or Yugioh Falsebound Kingdom being lost to time simply because they didn’t sell well and Nintendo decided they weren’t worth putting on the Switch Online Library. Oh and people who emulate newly released games? Like the people who put Dordogne on a Switch emulator? Those are actual pirates and I hope they get the slammer. >:] hard-working devs deserve to enjoy the fruits of their labor and we should support, not undermine, them. Godbless! :]
Hello, my friend! It's been a little while since I've seen one of your comments. Thank you for sharing your thoughts with me, as always. I hope you will enjoy the video!
@@moon-channelIt’s good to be back Moon! :] I got a loooooot of stories but that’s for another time. It’s really sweet that you remember though that made my day. And yeah the video just finished and as usual, it was relaxing and enjoyable to watch. But now…I gotta watch all the videos I missed while I was gone. Namely, that JRPG one I’ve been looking forward to! See you on the flipside Moon and have a good day InshAllah ( 0. u 0 )👌🏻.
I’m not a lawyer at all, but you manage to make these topics very engaging and understandable. You are a godsend. As much as I love other creators like MoistCritical, they do tend to be biased and focus solely on the “Nintendo is bad and evil” talking points. It’s nice hearing about things from all sides, even if one’s personal conclusions end up supporting emulation anyway! I am very glad I managed to find your channel in the past few months. Your growth has already been insane, and I love the content you make. Keep it up!
That doesn't mean Nintendo isn't bad and evil though, again, it's that famous quote "just because it is legal doesn't mean it is ethical".
@@thegamerfe8751 oh yeah I’m right with you. I think all corporations are bad and evil. I just don’t think Nintendo is like…exceptionally bad and evil. Which is what a lot of people like to say
@@Ethan-tx1jvYeah, they may employ too much legal abuse, but they don’t get into the highly immoral scandals that a lot of AAA studios did over the past decade, they don’t buy up companies just to kill them off to eliminate competition, and they still keep from absurd monetization practices with the exception of their mobile games.
It kinda annoys me that people put so much more weight towards the emulation thing when there’s a lot worse things other companies have done
Emulation is preservation, it's the only thing allowing for true preservation of videogame's history.
I hope it continues to be legal.
Good luck that the button was not pressed this time.
At this point, I don't think Nintendo will sue Dolphin or Ryujinx; in Yuzu's case, they advertised too much, like tweeting about playable totk after the game launched, and they were also advertised by big channels like LinusTechTips and even Valve's Steamdeck.
@@bestmatch3170yuzu yeah I can understand but citra? Nah thats just nintendo being petty and Im sorry but I see why a whole bunch of others are rlly mad about that. I cant forgive them for that as others have said they discontinued 3ds closed up all eshops and are not selling no more Physical copies and they pull a stunt like this for a console they dont even care about no more ? Absolutely Ni Justification for citra being Completely gone along with years and years of hard work
@@kirby21-xz4rx Nintendo didn't target Citra, Yuzu were the ones supporting Citra, so they got caught in the crossfire.
We really need to get more lax copyright laws... Not only in the videogame industry, but in the music and the audiovisual industry as well. I wouldn't give more than 20 years to make money off an idea before making it public domain. This not only motivates to create new stuff because you can monetize it for many years, but eventually forces to innovate again and lets other people to add their spin to your idea
Mhm. And who will make that happen?
None of the politicians you vote for will want to anything about it.
@SuperFranzs they won't do much about anything. Police would rather go after people pirating online than people committing crimes against children.
We live in a back aswards world
@@SuperFranzs well yeah, the monied interests of capitalists will always win out in a system where money is able to confer political influence, the existence of lobbying groups and the need for all sectors of the economy to experience infinite growth forces politicians to necessarily reflect the desires of corporations.
@@CrystalLily1302 well good for us that is a self solving issue, since infinite growth is obviously impossible, at some point the economical rules by which we abide today will cease to exist and the model we use today will break apart, and when it does boy oh boy its gonna be fun, im gonna love watching this shit world we have today break in half and implode on itself, it will be the definition of schadenfreude
thankfully it seems to have started already so theres a good chance itll happen in earnest while im still alive, ah i can only hope
@@CrystalLily1302 That always happens eventually, no matter what structure your society is, which is why no society lasts permanently. Once one collapses under its own weight a new one has to be built from a clean slate. It’s basically been on that cycle throughout the entire course of history.
Fantastic video! It has been a pleasure to see your channel grow over the past few months, it is so deserved! You really fill a niche that has been sorely lacking!
Great storytelling and a cozy casual subtle voicing as if it were the 50s. Thanks for sharing!
The thumbnails right side is an edited wikipedia page of the australien war against emus
Love the creativity
Was hoping you'd cover this! I really appreciate your channel as a non-lawyer who tries to follow IP law issues and stuff like the EFF's work: You do a good job illustrating how these things are more complex then they seem even relative to that organization's coverage of issues. If you didn't mind, though, I have some questions about some stuff you've brought up in prior videos, including this first one which actually ties into emulation and Dolphin: In your Pointcrow BOTW mod video, you bring up Microstrar vs Formgen, and I'm sort of at a loss trying to wrap my head around both the legal reasoning in that decision and the implications of it in relation to the legality of modding and how it intersects with things like these emulation rulings.
According to the document you linked about that case in that video description, it was found that even if the map files do not contain any of the actual art assets or code that Formgen made, the court found the maps (or, more specifically, the frames of video the game generates when the maps are loaded) to still be derivative works. Microstar brought up (as I would have) that the video frames generated by the software isn't a permanent concrete work and cited Lewis Galoob Toys, Inc. v. Nintendo of America, Inc which found that cheating hardware (Game Genie) to that being non infringing since generated frames/the game running isn't a "work" in itself due to being ephemeral. ... but that the court found that the maps are concrete work (even though their reasoning rested on the frames, not the map files, which it concedes don't use copyrighted content?) and what makes them derivative despite not using any copyrighted content is their status as "sequels"...
...That seems incredibly circular and self-contradicting to me: The maps only actually become derivative of anything under Formgen copyright when loaded by the game in a temporary audiovisual form that the judge doesn't dispute doesn't qualify as a part of the work, so what makes them "sequels" if the maps themselves, the part it admits is concrete and "a work", isn't actually using formgen works or material? Is a "sequel" even an actual legal concept in relation to infringement-fair use determination? Like, as an example (this is purely a hypothetical to help me understand the case better, it is not an actual thing I have or plan to do, nor am I asking for legal advice,) If I make a wholly original 3d model of a room, it's my work, and it's not infringing. But if it's posted online and somebody mods it into a game, in accordance with that ruling, would that model now suddenly be "a sequel" and infringing just on the basis of it's inclusion? Surely not, right?
Like, I get that the judge is trying to say that the game, with the maps inserted, is a new work that's derivative of both the maps and the original game and that's infringing, but again, Lewis Galoob Toys, Inc. v. Nintendo of America, Inc should establish that can't actually qualify as a new work, and works must be concrete which the judge then agrees with, but then the judge points to the maps as a concerete work, but the maps are wholly original and don't use copyrighted elements. Even i'm just repeating myself now!
So: Is that just a really bad ruling that could theoretically make almost anything infringing just on the basis of what people do with it rather then on the basis of the work itself, or am I not understanding it right/did the document you link exclude important details? If it is just a bad ruling, then could Nintendo or some other party allege that the wholly original elements Dolphin or other emulators have are derivative on the basis of being "sequels" in a similar way, irrespective of the merits of reverse engineering etc? (I know the Formgen case also ties into use of copyrighted/trademarked marketing materials for the mappack, but that seems more clear cut and I don't have questions there)
The most charitable/non-insane reading of the ruling I can make is that even if a work is wholly original and non-derivative, if the "purpose of the work" (to pull from a fair use pillar) is to be inserted into another copyrighted work, then that work itself, not just the hypothetical new work resulting from that insertion, can be infringing? To be clear, that still seems absurd (Is white-out tape advertised as being useful to mark curse words in a book a deriative work of all books then because it's intended to modify content on a written page?) but it's the most-workable read of the case I can come up with.
Second question: In your "Why is Nintendo so Overprotective" video, you do a good job trying to present why Nintendo may be so hostile to fanworks. But I'm not sure it really clearly establishes that there's a real legal risk of fanworks causing them to lose their IP's. For example, At least in the US, Petrella v. Metro-Goldwyn-Mayer establishes that lack of enforcement can't result in a loss of Copyright. Trademarks, of course, *can* be via genericization or abandonment or (I think?) laches, but it doesn't even seem like it'd be possible for a fanwork to lead to genericization (I mean, anything is possible, but the notion that a fanwork as opposed to official Nintendo products would push "Nintendo" or "Mario" or "Zelda" etc into being generic terms seems absurd). If Abandonment is only an issue of enforcement, not of use then maybe that's a risk, but as I understand it, abanonment, too, requires a fairly high bar, and cases like Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc establish one does not need to police even a significant minority of infringing uses.
I know you already sort of talked about this in a comment chain with AfterglowAmpharos on the original video, where you state that fanworks alone are unlikely to cause one to lose their IP's, but it could be used as evidence as part of a larger case, but that maybe the questions that user (and I) bring up deserves a follow up video: Is that a video you still wish to do at some point? I'd very much like to see a "Can fanworks really make you lose your IP?" video or something akin to it. (To be blunt, I pretty strongly feel like even if therwe w that Nintendo and other IP holders would simply allow the majority of fanworks: Just plain old control and not wanting to permit fanworks for the sake of it or to fight perceived competition from fanworks is surely a large factor, if not the main factor, above protecting their IP's.)
Lastly, to comment on something you brought in this video, that is, Open Source software/emulation being a existential threat to the entire industry, I very much disagree with this. Even in a worse case scenario (for gaming publishers) where emulation is more strictly legalized, it's found that abandonware is legal to download without being considered piracy, the idea that it would be an "existential" is pretty ludicrous. Even if third party emulators were normalized to the point of being a mainstay on store shelves (and I think even that is a big "if") it wouldn't destroy the entire industry: It would perhaps radically change it, and might significantly reduce the profitability of specific services (NSO) or products (classic game compilations) but, say, the RIAA and music industry survived pretty normalized piracy during the early and mid 00's, of even ongoing major releases: Emulation has a much more uphill battle to eat into corporate profits then that does, both due to the inherent hardware requirements of running emulated games, the fact that modern gaming platforms generally cannot be emulated at the same time the console is still being manufactured (with some exceptions: Nintendo's consoles often can) etc. To me, this is similar to claims that shorter copyright terms would destroy entertainment industries: It may certainly change the landscape, and may reduce profits for specific companies or products and force a shift in strategy, but the entire movie, gaming, music, etc industry wouldn't collapse nor do I see modern consoles going away.
Of course, it still makes sense it's in the interest of those corporations to fight change in that direction (sadly), but even this I think is only somewhat true: I think Frank Cifaldi in his two GDC talks and other publications makes a compelling case that industry embrace of emulation could be mutually beneficial. I'm not sure you've seen them, but he essentially makes the arguement that had publishers tolerated or even embraced third party emulators of older software, gaming publishers could have continued to produce and sell older games (similar to how movie and music publishers have) without needing to invest in continuing to support older hardware or developing in house emulators. Would that actually be more profitable then making/using in house emulators and charging people to use them with services like NSO? Maybe not, but I think it's a good point that even in a world of normalized third party emulators, publishers would still have ways to monetize them to their benefit.
Hey Moonie, just wanted to say my thanks for the video. I haven't even finished your JRPG video yet! What you made here has been incredibly informative and I can't believe you've managed to make sifting through legal jargon so fun and engaging.
I read about your channel description and I genuinely appreciate your approach towards video essays! I hope managing this hobby and daytime lawyering isn't too taxing on you; It makes me happy that creators like you are here.
P.S. That's a great singing voice you on the end! What a fun parody. You a fan of Trey the Explainer? The vibe of your videos (including that end segment) really reminds me of him!
Very interesting video and humorous song at the end!
This was incredible, ty.
The song at the very end was so beautifully melancholy, sent this video to the moon.
I actually just saw your channel name after I wrote that last line, nice.
I enjoy emulation, but I'm really not sure what Dolphin expected to happen. It's a great emulator but that...that was not a good decision. Thanks for the video, though. I figured Valve was just a middleman and that's why they complied with Nintendo; didn't realize they were the reason Nintendo knew in the first place.
Wow. I love how you present these videos. I feel like I get a more nuanced understanding of topics I find interesting. The stories of strategy, tactics and psychology behind how corporations use the legal system draws a parallel to reading up on history. Large institutions in a fight for power.
Being a lawyer sounds like being a historian with extra steps lol.
although im not into law or studying law in any capacity, im enjoying ur videos alot, these topics are very obscure to everyone from an outside perspective so im grateful that ur enlightening us about them in a semi realistic-fun manner
needs to be talked about! thank you Moon!