There’s similar legal issues with the “right to a private copy” many European countries have. Those laws were made to allow people to make a copy of their media, in case the original breaks. Important to note is that those private copies weren’t allowed to be distributed to anyone, not even lent to a friend.
This worked well at the time for cassettes and VHS, which did break occasionally.
But at some point most CDs came with copy protection, which got broken pretty quickly. But at least in Germany, they are still considered “working copy protection” and thus are illegal to circumvent, even for a otherwise legal private copy.
The same is the case with Switch games: Copyright owners use copy protection to make otherwise legal use cases illegal.
E.g. Nintendo made it so that Switch games can only be played by decrypting the ROMs, which is illegal for anyone except Nintendo.
At least that’s their standpoint which was never tested in court but it’s not unlikely that it’d be accepted.
But this is still to be discussed, because if the emulator does not circumvent any copy protection and the games are dumped with the protection in place, and the copy protection is reverse engineered, then the games would play with the copy protection decrypting. It does not circumvent the protection, it actively “uses” it. So from that standpoint making backup copies is not illegal in theory. Now would this hold in court? I don’t know. Nintendo does not know either and rather like to take things out of court. Because if Nintendo looses such a case, it would be devastating.
I’m in Germany too and the right to a private copy is exactly what I had in mind too. Not all copy protection measures were accepted for the right to not copy. What I mean is, there was some extremely simple protection mechanisms that were not accepted as a working and effective copy protections, and you were allowed to do a copy; even with the so called copy protection in place. Therefore it effectiveness was kind of important to the discussion too. I guess the Switch has a much more advanced one, so its probably not an exception.
Great comment!
There’s similar legal issues with the “right to a private copy” many European countries have. Those laws were made to allow people to make a copy of their media, in case the original breaks. Important to note is that those private copies weren’t allowed to be distributed to anyone, not even lent to a friend.
This worked well at the time for cassettes and VHS, which did break occasionally.
But at some point most CDs came with copy protection, which got broken pretty quickly. But at least in Germany, they are still considered “working copy protection” and thus are illegal to circumvent, even for a otherwise legal private copy.
The same is the case with Switch games: Copyright owners use copy protection to make otherwise legal use cases illegal.
E.g. Nintendo made it so that Switch games can only be played by decrypting the ROMs, which is illegal for anyone except Nintendo.
At least that’s their standpoint which was never tested in court but it’s not unlikely that it’d be accepted.
But this is still to be discussed, because if the emulator does not circumvent any copy protection and the games are dumped with the protection in place, and the copy protection is reverse engineered, then the games would play with the copy protection decrypting. It does not circumvent the protection, it actively “uses” it. So from that standpoint making backup copies is not illegal in theory. Now would this hold in court? I don’t know. Nintendo does not know either and rather like to take things out of court. Because if Nintendo looses such a case, it would be devastating.
I’m in Germany too and the right to a private copy is exactly what I had in mind too. Not all copy protection measures were accepted for the right to not copy. What I mean is, there was some extremely simple protection mechanisms that were not accepted as a working and effective copy protections, and you were allowed to do a copy; even with the so called copy protection in place. Therefore it effectiveness was kind of important to the discussion too. I guess the Switch has a much more advanced one, so its probably not an exception.