Not to be a stickler, but this does not say making copies is illegal - it makes circumvention of drm methods illegal. You can make drm’d copies as you like as long as you don’t circumvent the drm method. If your game isn’t encrypted, and the emulator doesn’t implement the drm, you haven’t circumvented drm - you are playing your legal copy on a device that does not implement the drm. It’s distinct from removing the drm from a device that implements it.
I do get that most consoles encrypt their software these days, but let’s be clear - it’s not as simple as “DRM means you have no rights.”
I don’t agree with any of that noise around the DMCA for the record. I feel like we effectively lost our right to archival copies.
On a PC, what you said about copying the DRM along with the data is largely true. It is possible sometimes to copy the DRM and reproduce the image with the DRM intact. It also might not be depending upon the copy protection mechanism. Commercial video DVDs used to employ tricks with the storage sector that made it almost impossible to properly copy by a standard computer disc drive. You could get around this with additional program like AnyDVD, but that was only available for sale outside the USA because of the fact that it allowed you to bypass DRM.
And like you said, the content can be encrypted. Decrypting it is, IIRC, considered bypassing DRM - at least in the USA.
Again, I don’t agree that this is how things should be, but the legality of emulation is complicated depending upon what we’re talking about emulating.
I also don’t like how things are legally speaking with DMCA, but the main takeaway is - the creation and distribution of an emulator, without DRM protections, is unequivocally protected and legal. ROM backup is certainly in most cases not, but if you are making your own copies for your own use, even while illegally breaking encryption, it would be difficult to prove and prosecute on an individual basis.
The right we must continually remind people is NOT even REMOTELY in question is the right to create and distribute emulators. This is by far the more important one, because people cannot reasonably develop their own emulators - it requires an open, collaborative community to ensure future preservation, and it’s a constant battle to keep people from actively trying to cede this right because they have nebulous loyalties to soulless companies that return no such feelings.
/edit: I was WRONG. This is my memory failing me. I explain it further below, and apologize for wasting any time.
After the DMCA passed there was a case of a judge finding it legal to bypass DRM to make backup copies, but illegal to distribute the software used to do so. I have no idea if there was ever further clarification or new law about this. That was like 20 years ago. It was part of a case going after the company who was making the software, but the name slips my mind. I’ll try to look it up if anyone cares enough and wants to look for something more than hearsay on a forum.
I get you! I was bigger into copyright some 20-30 years ago myself when we would’ve all been on Slashdot.
To that end, I was WRONG in my post, I think I was conflating two things, and for that, I’m sorry. I was certainly thinking in part about Universal City Studios, Inc. v. Corley (2001). That was the case that decided that the software DeCSS was illegal, and you could distribute the software. I was thinking that while the court did agree with Universal over the software, that it did not find that breaking DRM on a product you owned was inherently illegal. (I legit think this was a “take” at the time. Probably wouldn’t hold up in court these days, sadly.) And I did find that years later the Library of Congress offered exemptions for breaking DRM on some hardware (vehicles, medical devices,) but I believe even those were temporary and have since lapsed.
Sorry I spoke so surely about something I was wrong about.
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https://www.law.cornell.edu/uscode/text/17/1201
In the USA, it is illegal to make a backup copy of any of your media when the original contains any form of DRM.
On any media where DRM wasn’t used, you’re okay to create a backup copy.
The law is different everywhere though.
Not to be a stickler, but this does not say making copies is illegal - it makes circumvention of drm methods illegal. You can make drm’d copies as you like as long as you don’t circumvent the drm method. If your game isn’t encrypted, and the emulator doesn’t implement the drm, you haven’t circumvented drm - you are playing your legal copy on a device that does not implement the drm. It’s distinct from removing the drm from a device that implements it.
I do get that most consoles encrypt their software these days, but let’s be clear - it’s not as simple as “DRM means you have no rights.”
The law is all about those technicalities.
I don’t agree with any of that noise around the DMCA for the record. I feel like we effectively lost our right to archival copies.
On a PC, what you said about copying the DRM along with the data is largely true. It is possible sometimes to copy the DRM and reproduce the image with the DRM intact. It also might not be depending upon the copy protection mechanism. Commercial video DVDs used to employ tricks with the storage sector that made it almost impossible to properly copy by a standard computer disc drive. You could get around this with additional program like AnyDVD, but that was only available for sale outside the USA because of the fact that it allowed you to bypass DRM.
And like you said, the content can be encrypted. Decrypting it is, IIRC, considered bypassing DRM - at least in the USA.
Again, I don’t agree that this is how things should be, but the legality of emulation is complicated depending upon what we’re talking about emulating.
I also don’t like how things are legally speaking with DMCA, but the main takeaway is - the creation and distribution of an emulator, without DRM protections, is unequivocally protected and legal. ROM backup is certainly in most cases not, but if you are making your own copies for your own use, even while illegally breaking encryption, it would be difficult to prove and prosecute on an individual basis.
The right we must continually remind people is NOT even REMOTELY in question is the right to create and distribute emulators. This is by far the more important one, because people cannot reasonably develop their own emulators - it requires an open, collaborative community to ensure future preservation, and it’s a constant battle to keep people from actively trying to cede this right because they have nebulous loyalties to soulless companies that return no such feelings.
Bleem would like a word…
The Bleem case is a separate issue from creating a backup copy protected by DRM
/edit: I was WRONG. This is my memory failing me. I explain it further below, and apologize for wasting any time.
After the DMCA passed there was a case of a judge finding it legal to bypass DRM to make backup copies, but illegal to distribute the software used to do so. I have no idea if there was ever further clarification or new law about this. That was like 20 years ago. It was part of a case going after the company who was making the software, but the name slips my mind. I’ll try to look it up if anyone cares enough and wants to look for something more than hearsay on a forum.I would be interested in that case if you find it. I spend a lot of time thinking about emulation and the surrounding stuff.
I get you! I was bigger into copyright some 20-30 years ago myself when we would’ve all been on Slashdot.
To that end, I was WRONG in my post, I think I was conflating two things, and for that, I’m sorry. I was certainly thinking in part about Universal City Studios, Inc. v. Corley (2001). That was the case that decided that the software DeCSS was illegal, and you could distribute the software. I was thinking that while the court did agree with Universal over the software, that it did not find that breaking DRM on a product you owned was inherently illegal. (I legit think this was a “take” at the time. Probably wouldn’t hold up in court these days, sadly.) And I did find that years later the Library of Congress offered exemptions for breaking DRM on some hardware (vehicles, medical devices,) but I believe even those were temporary and have since lapsed.
Sorry I spoke so surely about something I was wrong about.
You’re okay by me!