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Comment by gjsman-1000 | Hacker News Reader

This is something that often gets missed in the “Why can’t Nintendo be more like Sega?” argument.

Nintendo sells games from other publishers, Sega doesn’t. Other publishers get mad if Nintendo can’t keep piracy on their platform under control. They send angry letters, complain to their representatives, and so forth. It’s not just (arguably) lost sales, but now you have to deal with more cheating players. To Nintendo, piracy is an embarrassment. Nintendo files DMCAs, in part, because other publishers expect them to and because only Nintendo can.

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>Other publishers get mad if Nintendo can’t keep piracy on their platform under control

Maybe, but if that mattered we would have seen the consequences already because Nintendo since the gamecube has been uniquely abysmal at anti-piracy, the worst by far of any console maker. Most recently their blockbuster game Tears of the Kingdom was playable for free for anyone with a decent video card, more than 10 days before the game was officially released.

That’s not an aberration, they are just extremely bad at securing their hardware platforms. they still seem to be doing OK.

Switch was broken through a Nvidia tegra hardware bug.

And Nintendo Fokus on gameplay and not doing the hardware race makes emulation much easier for current games (switch is also really old by now)

My impression is that Nintendo doesn't really care about piracy. It doesn't seem to affect them meaningfully, and their actions to stop piracy are always in the "too little too late" fashion. I have a Switch, and I don't pirate its games because I like the company. It wouldn't be hard to do it if I really wanted to.

What they really seem to care about is their brands and IPs, and seem to go after about people using those - for example, the draconian rules on streaming, shutting down Smash Bros competitions, etc.

I can understand their actions. More than any other game company, Nintendo lives and dies on their brand and IPs. Sony and Microsoft are larger than their gaming divisions. Nintendo only has gaming to save itself, and their IPs are major console sellers.

I think a big part of the issue may be that the Switch is extremely weak (compared to competing consoles like the PS5 and Xbox Series X) so its games can be emulated very easily.

The Switch is extreemly week vs a PS4 I don't think this is what they are competing with.

> they are just extremely bad at securing their hardware platforms

Frankly, though I hate to defend them; this is wrong and an insult to Nintendo.

The Nintendo Switch was so, so close to being a masterpiece of security. Nintendo even built their own OS from scratch for it based on a microkernel. It is so secure that an open-source developer who reimplemented it (SciresM) has said we very likely may never have a kernel exploit on future Nintendo systems, ever. The entire kernel is so compact there’s almost nothing to attack. Everything else from graphics to USB runs in sandboxed usermode and can’t run homebrew. This thing is intrinsically more secure than the Xbox One and PlayStation 5 in design.

Nintendo’s software was, according to him and other developers looking at it, downright almost flawless in security. The problem was NVIDIA, who had a bug in their recovery mode allowing unsigned code; and NVIDIA again for releasing a chip with inadequate protections against glitching. Nintendo did everything they could almost perfectly, but their chip supplier didn’t.

Both of those are one-time plays though. The next chip will almost certainly contain glitch protection; and the recovery mode bug has already been patched on newer Switches. Combined with Nintendo’s (literally) impeccable OS design, and the Switch 2 may not be broken for a very, very long time.

>Nintendo since the gamecube has been uniquely abysmal at anti-piracy, the worst by far of any console maker.

I'm still amazed at the 3DS piracy that was done through downloading from the official eShop.

What I'm hearing is that when Nintendo has to decide between its users or its publishers it is choosing the publishers.

I didn't realize developers were still publishing Gamecube and Wii games. Can you share some of the newest games that have been released?

What are you talking about? Every game developer licenses with Nintendo to publish to Switch. Nintendo takes about 30% royalties, which stings if their platform is insecure. Only Nintendo can make physical cartridges. Nothing with the status quo there has changed.

Also, the last original Wii game was Just Dance 2020. Not joking, a Wii game was released 3 years ago.

I was specifically asking about Gamecube and Wii games, not Switch. Dolphin is a Gamecube/Wii emulator, both of which no longer have active games being released for them. Your argument might have some application if it was a Switch emulator being propped up.

I would say it’s more about establishing legal boundaries.

The Wii was the first console to use digital signatures; which would make it the first console to really invoke DMCA Section 1201 when prior consoles did not. Establishing out the gate that this tramples on 1201 could be extremely important in the future. Section 1201 is also what overrides Bleam and other prior emulator lawsuits - they didn’t have cryptographic keys protected by law flying around.

Because, how long until Yuzu is on the Steam store? And if Nintendo didn’t take action for the Wii (the first one protected under the title), defending against Yuzu is much harder.

Cryptographic key doesn't matter. It's covered explicitly under the exemptions listed in Section 1201. Discovering the cryptographic key using reverse engineering and using it for system interoperability is legal. They explicitly call this out:

> to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner;

Nintendo has no standing.

If only it were that easy. The EFF had long warned that the interoperability exception is legally much weaker when it conflicts with 1201 than it appears, and is (in their view) legally almost useless.

“The "act" prohibition, set out in section 1201(a)(1), prohibits the act of circumventing a technological measure used by copyright owners to control access to their works ("access controls"). So, for example, this provision makes it unlawful to defeat the encryption system used on DVD movies. This ban on acts of circumvention applies even where the purpose for decrypting the movie would otherwise be legitimate. As a result, it is unlawful to make a digital copy ("rip") of a DVD you own for playback on your video iPod.

The "tools" prohibitions, set out in sections 1201(a)(2) and 1201(b), outlaw the manufacture, sale, distribution, or trafficking of tools and technologies that make circumvention possible. These provisions ban both technologies that defeat access controls, and also technologies that defeat use restrictions imposed by copyright owners, such as copy controls. These provisions prohibit the distribution of "DVD back-up" software, for example.

Section 1201 includes a number of exceptions for certain limited classes of activities, including security testing, reverse engineering of software, encryption research, and law enforcement. These exceptions have been extensively criticized as being too narrow to be of real use to the constituencies who they were intended to assist.“

https://www.eff.org/pages/unintended-consequences-seven-year...

This comes up elsewhere on this Hacker News thread, because Dolphin actually does contain a Nintendo encryption key. Which makes Dolphin almost indistinguishable from, say, a DVD ripper or counterfeit DVD player, which this law was specifically designed to crush.

If you want a further example, look into Apple v Psystar, where Psystar broke Apple’s DMCA 1201 locks to run macOS on unofficial hardware with “interoperability between hardware” being one of their many legal defenses. They were squashed in hearing after hearing and declared bankruptcy after having exhausted all legal options.

> As a result, it is unlawful to make a digital copy ("rip") of a DVD you own for playback on your video iPod.

Strictly speaking, this is true. It is not unlawful to plug a DVD player into your iPod and play the DVD back digitally though. That's basically what Dolphin is doing - it runs unmodified disc images, copy protection and all. They've even abstained from using code or insights gained from the Wii's source code leak. The emulator should be clean, outside of any legal complaints about "damages".

You're correct to highlight that it's still an ambiguous area, but in a post-Bleem! world it's hard for Nintendo/Microsoft/Sony to find the legal willpower to stop these people. They'll settle for easy wins like harassing Valve's legal staff with scary looking letters instead.

> If you want a further example, look into Apple v Psystar

There's more recent precedent with Corellium. Their commercial product is allowed to create iOS VMs on unofficial hardware. Running their code is considered fair use, the most valid legal claim Apple had for shutting them down was their violation of icon and wallpaper trademarks.

> It is not unlawful to plug a DVD player into your iPod and play the DVD back digitally though. That's basically what Dolphin is doing - it runs unmodified disc images, copy protection and all.

If it can play disc images with copy protection, it de facto requires a way around that copy protection that is unlicensed, slamming it squarely into Section 1201.

> The emulator should be clean, outside of any legal complaints about "damages".

Dolphin contains Nintendo decryption keys; which is actually very likely illegal when the rest of the emulator is not. Recall 09 F9…

A competing emulator developer (for Citra) has also commented on this and said what Dolphin did there was legally dangerous and very much not endorsed by courts.

https://www.reddit.com/r/emulation/comments/13ss1o9/comment/...

> Their commercial product is allowed to create iOS VMs on unofficial hardware.

If you read the ruling, the fair use won because Corellium successfully argued there was no way that their product could impact Apple in any substantial negative way in the general market. They also argued that their products do not perform as substitutes to any products that Apple provides. And lastly, their products offer a unique benefit for a unique, niche, special interest, with vetting and similar procedures to ensure only people with those interests used their software.

If, however, they had done that to make their own smartphones, or a general iOS emulator for playing games on PC, they would have been annihilated. Nintendo easily has a case that emulation causes substantial financial and business harm; and that emulation can serve as a replacement for their products. Courts don’t like that.

Edit (“posting too fast”):

Unlike the GameCube, Wii games are digitally signed and encrypted.

This specific line of code contains the illegal key:

https://github.com/dolphin-emu/dolphin/blob/34527cadcce49a9a...

As the developer of Citra (above) noted, big no-no. The emulator is legally fine, but encryption keys are a no-go. Bleam was OK because keys were not involved. Every case that has involved keys for a non-extremely-specific use (Psystar, RealPlayer, VidAngel) has gone down in flames.

> If it can play disc images with copy protection

> Dolphin contains Nintendo decryption keys

I don't believe it does. Wii U emulator CEMU requires them to boot, and Citra the 3DS emulator also requires them. The Wii seems to have no copy protection to speak of, besides it's rudimentary disk check/hashing routine. I'd love to be proven wrong on this, though.

> the fair use won because Corellium successfully argued there was no way that their product could impact Apple in any substantial way regarding security research

> Nintendo easily has a case that emulation causes substantial financial and business harm

So did Sony. Bleem even used screenshots of their official, licensed games to advertise their commercial alternative to owning a Playstation, and a judge deemed it lawful: https://scholar.google.co.uk/scholar_case?case=1183722407805...

From the appeal:

> To the extent Bleem merely approximates what the PlayStation games look like, by generating screen shots through a process of degrading a computer image, it is simply creating a simulation. If Bleem insists on generating simulated approximations of Sony's games, there is no need for Bleem to use Sony's copyrighted material whatsoever.

Again - there is still ambiguity in these rulings, especially for modern console emulators. It's easy to scare Steam into taking this down since Valve doesn't want to take the fall for emulators. That being said, a true cease-and-desist scenario for Dolphin is likely unlawful, given the precedent and context.

Edit in response to your edit: Citra's developer is right - this is brazen. But it's also a legal can of worms Nintendo cannot guarantee a win on. Their claim is that it violates the Copyright Act, which they would then have to defend against the DMCA amendments that give explicit protections to many classes of usage. If "the key" is their objection, Nintendo's copyright complaint will be about as effective as the DeCSS moratorium.

> I don't believe it does.

The aes keys checked in to their GitHub are linked elsewhere in this comment section.

I don't understand how private keys are any different from secret ingredients. You can't stop me from cracking the KFC recipe and if I successfully did it and published the recipe can KFC come after me? What if KFC was sloppy and dropped the recipe on the floor and I found it and published that?

To me the private key is just a secret blend of bits to make the output bits look exactly the way you'd expect. If Nintendo can't keep their private keys private isn't that their problem? Why does someone else have the responsibility to keep Nintendo's key private if they discover it?

DMCA Section 1201 is your answer. Those keys are primarily used for circumventing “technological protection measures” on software. That’s not legal even for otherwise legal uses which is why the Section is morally awful. What you do could be completely legal otherwise, but if it involves circumventing these “TPMs” of which encryption keys are an important part of, you’re screwed.

An emulator, meanwhile, only mimics hardware which is considered legal. An example: It is completely legal to implement the DVD specification; but brute-forcing the keys to decrypt DVDs because you don’t have a license is not.

The same applies to AACS, which protects Blu-ray Discs. It’s actually published publicly - you can just go download the spec for that copy protection right now. But getting a legal, unique device key will require contracts.

Stupid? Yes, but that’s where the law is drawn right now.

What about Sony vs. Connectix? That case seems to have established that US copyright law does not confer a monopoly on devices or software to play commercial games.

https://en.wikipedia.org/wiki/Sony_Computer_Entertainment,_I....

They was both A) a case decided before the DMCA was law, and B) the DRM system of the PS1 is pretty much solely focused on legitimate PS1s only playing legitimate discs; there's nothing in most games stopping other systems from reading everything off the disc freely in cleartext.

> a case decided before the DMCA was law

Decided in 2000, and the DMCA was signed into law in 1998?

Video games have had digital rights management since the first Nintendo game system in the mid 80a

I can say pretty confidently that the original Xbox had (and verified) digital signatures.

I’m sorry, I should have said first Nintendo console. The earlier Nintendo consoles had no ROM encryption and used heavily physical protection methods (odd disc sizes, lockout chips).

Why are you ignoring the issue of games being re-released on newer platforms? Even if the Gamecube and Wii are more or less dead platforms, that doesn't mean the games are no longer valuable IP that the studios want protected in any way possible.

Imo if a publisher wants to retain rights to a game, they should have to make it available for sale. If you don't provide some legal way to acquire a game for some number of years (5? 10?) it should go into the public domain (the game itself, not the related IP).

most games are available on amazon. popular games like rayman raving rabids for wii, motorstorm for ps3, and underground 2 for ps2 are still available new. more niche games like frequency for ps2 and older gen games like crash warped for ps1 are still available refurbished. pretty much any console game from the last 25 years that didn't totally flop is available in good condition from a major retailer. the rest are around at boutiques and on the used market.

we get public domain in 70 years just like everything else, and i can't think of an argument for any game being more of a public good than works of other types like lolita, the search for animal chin, or paul's boutique.

70 years AFTER THE THE DEATH OF THE AUTHOR. Still sound reasonable?

> is available in good condition from a major retailer

I don't think Nintendo gets a cut of used game sales; †he first-sale doctrine should still apply.

> we get public domain in 70 years just like everything else,

Nitpick: video games are almost always a work-for-hire, so it's 95 years after publication (or 120 years after creation, in the unusual event that publication gets delayed long enough for this deadline to expire first).

Incredible that this is normalised. When a law is "you can enjoy cultural creations of 2007 in 2102", disobeying it is legitimate.

Your logic is flawed.

You may already enjoy that creation by paying for it, just like you would for many other cultural items.

Or was it just sarcasm?

If there is no legal way to obtain the game, or no practical way to obtain the system to play it on, then you can't enjoy it.

This is one of the most important purposes of emulation: it allows for digital archival of otherwise-obsolete hardware and software.

By the time these games enter the public domain, there'll be no way to play them except via an emulator and no way to develop an emulator if there's not one already - the flash holding the OS on all the Wiis out there will have long bitrotted away. Hell, a lot of the newer Wii Us are already dying due to flash failure just from being switched off for a few years. Strict copyright and DRM enforcement would most likely lead to this era of games being lost forever, just like many older films from a century or more ago have been lost.

> Hell, a lot of the newer Wii Us are already dying due to flash failure just from being switched off for a few years.

I thought I heard that this is actually a specific brand with chip defects.

Googling found: https://hackmd.io/d12Fq9g-QlCjN2HJp7Yvew

Its mostly the hynix flash chips.

I dont know since when but for some strange reason HN has turned into anti IP, anti patent ( good or bad, software or not ) or basically everything should be free, that type of ideological mentality. And it has been going on for more than few years. Just want to say a big thank you for continue to comment and contributing on HN. Hopefully I get to read more of your work on Anandtech.

That is not an answer as to "how to play old games". Quite often, games are modified (besides remastering/rereleasing) in the process.

"Protected in any way possible"? Why should copyright holders with money get that benefit, but those without money are screwed?

Metroid Prime: Remastered just got released on Switch and sold a million units.

Anybody who thought that was a good game is now looking for the second and third installments in the trilogy which Nintendo offically said they weren't going to develop (oops). So those are effectively only available on Dolphin/Wii.

Yeah, Nintendo got caught with their pants down (Metroid Prime sold way better than they expected) and are losing future sales for every person who pulls up Dolphin and the next two Metroids.

You do realise the developer who develops for Gamecube and Wii, also developers for Switch, right?

That is not relevant, this is about dolphin any not any other thing made by the dev

I think you should read my parent and Grand parent's comment.

Not surprising it was _Just Dance_ The 2019 one was the last XBOX 360 title too.

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