What's wrong with getting money out of a product? The fact that it was an emulator changes nothing. They would have been sued, Patreon or no Patreon. Making an emulator is not illegal. And I don't mean gray-area not illegal, I mean court-precedent not illegal.
Under precedents established before the DMCA was law, and under lawsuits filed before the DMCA was applicable, on consoles which did not have encryption on which the DMCA would have applied.
> Correct, but the DMCA has an explicit exception for this kind of thing.
That has never been examined or declared, as the DMCA exemptions are much narrower than they appear. The reverse engineering exemption, for example, does not cover the right to make a product that interfaces with the original - only to examine the technology to build your own product.
An obvious example of this is DVDs, which have the same exemptions. The US PTO, and the US Librarian of Congress (who has the power to make DMCA exemptions) are unequivocally clear that a private copying exemption does not exist in their view. This is also why the EFF has been begging every 3 years for the last... two decades... to make such an exemption, and has failed.
(1)Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
(2)Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
(3)The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.
Nintendo may potentially argue that yes, you are completely right. You have the right to interoperability, in the sense that you are allowed to make a device which physically takes Switch cards, decrypts them, plays them, from the original card, does not copy it to storage media of any kind, and does not allow the user any semblance of a DRM bypass, or any way to resell the original card while maintaining a copy. Interoperability is for building CD players, not CD rippers.
EDIT TO REPLY FOR "POSTING TOO FAST": Section 117 is very clever, except there's one problem: It was created in 1980, before the DMCA. Thus, if there is a conflict between the DMCA and Section 117, the DMCA is likely to receive the benefit of the doubt. As such, Section 117 is only effective for demonstrating the legality of copying non encrypted programs, or (as an actual lawyer put it), copying a program with the DRM remaining intact, as useless as that is.
Combine my point about interoperability in the courtroom + Section 117 likely being overruled by Section 1201 of the later DMCA which is extremely restrictive on bypassing "technological protection measures" copied or not, and it's not a clear win.
The case you linked to has nothing to do with the interoperability exception. I don't know how they could reject my view if they never touched it.
Also
> Nintendo may potentially argue that yes, you are completely right. You have the right to interoperability, in the sense that you are allowed to make a device which physically takes Switch cards, decrypts them, plays them, from the original card, does not copy it to storage media of any kind, and does not allow the user any semblance of a DRM bypass, or any way to resell the original card while maintaining a copy.
And they would be right, if copyright law didn't have an additional exception...
17 U.S.C § 117 - Limitations on exclusive rights: Computer programs
(a)Making of Additional Copy or Adaptation by Owner of Copy.—
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1)that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Just curious, why does Nintendo seem to think they have a legal standing? Why did the Ryujinx devs give up instead of continuing their extremely-legal work?
Nintendo obviously doesn't think they have standing against emulators [0]. However they they can make the lives of defendants hell until the emulator devs settle.
Now, I think there are laws to curb this kind of judicial abuse, called anti-SLAPP laws. But reading about it, it seems to apply to defamation lawsuits. Apparently it's okay to threaten legal action in bad faith when it's, say, regarding non-existent copyright infringement.
[0] to be fair, they might get something out of the anti-circumvention clause of DMCA. But this only applies if devs aren't careful enough (or don't know about this technicality). Developing an emulator to run legally acquired games doesn't break any laws.
>to be fair, they might get something out of the anti-circumvention clause of DMCA
Nintendo's entire case rests on DMCA 1201. It entirely circumvents (pun intended) the reverse-engineering case law[0] most emulation developers point to. In other words, they aren't saying "you can't write a Switch emulator", they're saying "you can't tell people how to rip Switch games".
The problem is that a DMCA 1201 compliant Switch emulator would be nearly useless. To be clear, the legal way to use the emulator on your own purchased games would be entirely undocumented. You probably couldn't even say "figure out how to rip the games yourself". The illegal way to use the emulator - i.e. with pre-decrypted, pirated game files that don't rely on any Nintendo keys - would be very easy. But they can't tell you to do that, that would be inducement.
Homebrew developers could still legally release their own games for use in a Switch emulator. And emulator developers could advertise the use of the emulator with those games. But that's really limited and I could see Nintendo convincing a court to just ignore it.
