How Can A Video Game Company DMCA A Patreon Page For An Emulator? DMCA 1201 Strikes Again
from the 1201-v.-512 dept
You may have heard the story earlier this week that the video game company Atlus had issued a DMCA takedown over a Patreon page for the creators of RPCS3 — an open source PlayStation 3 emulator, because people could use that emulator to play the Atlus game Persona 5. An awful lot of people immediately said that this was a crazy DMCA takedown, and it’s clear that a Patreon page is not violating the copyright of Persona 5 itself. And it is messed up, but perhaps not for the reasons most people are thinking. A DMCA takedown here may actually be legitimate under the law. Rather than a bogus takedown, this may be yet another example of just how fucked up the DMCA is.
The big clue: Atlus itself put up a weird blog post defending the action that is mostly nonsensical, stating lots of things that have nothing to do with copyright law, but see if you catch the one thing that is actually covered by copyright (okay, okay, I’ve put it in bold for you):
You might have heard earlier today that we issued a DMCA takedown notice involving emulation developer group RPCS3 and their Patreon page. Yes, it?s true. We settled upon this action for two reasons:
- We believe that our fans best experience our titles (like Persona 5) on the actual platforms for which they are developed. We don?t want their first experiences to be framerate drops, or crashes, or other issues that can crop up in emulation that we have not personally overseen. We understand that many Persona fans would love to see a PC version. And while we don?t have anything to announce today, we are listening! For now, the best way to experience Persona 5 is on PlayStation 4 and PlayStation 3.
- We appreciate the awareness generated by the emulation community for Persona 5 and know that it is a fantastic example of how much people are loving our game. We want to keep bringing you titles like Persona 5. Unfortunately, when our content is illegally circumvented and potentially made available for free, in a format we do not think delivers the experience and quality we intend, it undermines our ability to do so by diverting potential support from new audiences.
We want to continue having a dialogue about where and how you would like to play our games. Please let us know what you think.
So here’s what I think is going on. It’s similar to another story we wrote about a few weeks back, concerning how an anti-adblock company was able to use the DMCA to delete a URL from an adblock list. The key is that this is not what most people think of as a DMCA takedown. Most DMCA takedowns are filed under DMCA 512, which has as whole section on how the “notice and takedown” process works. This is what is used to tell a third party site that a user has uploaded some infringing material. But that’s clearly not the case with the Patreon account for RPCS3.
And that’s where the other part of the DMCA comes into play, the digital locks anti-circumvention part, known as DMCA 1201. This is the part of copyright law that (bizarrely) makes it a violation of copyright if you “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.” In short, violating 1201 means doing something to circumvent DRM. Now, we’ve spent many blog posts explaining why this is dumb, and how there are tons of legitimate, non-infringing reasons to get around DRM, but 1201 more or less ignores most of that.
Of course, there is no notice-and-takedown process for 1201 violations. But, increasingly, we’ve seen companies assuming that if they see what they believe is a 1201 violation, they can file a 512-like notice, and platforms feel obligated to treat it similar to a 512 notice — which means removing the offending material to avoid the possibility of liability. It’s not at all clear if this is what the law requires.
It’s also not at all clear if the Patreon page at issue here violates 1201. Going on the text of Atlus’ blog post, it would certainly apear that they’re trying to claim that the Patreon page is a form of “offering to the public” a “technology” that is porduced for “circumventing” the DRM on Persona 5. I think this is a huge stretch to read DMCA 1201 this way — since it requires the product to be primarily designed for such a purpose, to have “limited commercially significant purpose or use other than” circumvention, or is marketed in a way that advertises the circumvention capabilities. Perhaps Atlus is arguing the latter point. That because the makers of RPCS3 have publicly stated that you can play Persona 5 on it, that’s advertising the circumvention capabilities (still feels like a big stretch).
Either way, that would also explain why Patreon settled things by having RPCS3 simply remove all references to Persona 5.
In discussion with the very helpful people over at Patreon we have decided to proceed with caution. Per the request of Patreon, we removed every single reference to Persona 5 on the Patreon page itself and rpcs3.net. This seems to have resolved the situation.
Of course, the RPCS3 Team also points out that Atlus could have just reached out to them directly, rather then sending the takedown to Patreon, and also pointing out that this whole effort seems pretty pointless by Atlus:
RPCS3 as a project and the Patreon itself are safe. And whatever people may wish, there’s no way to stop any playable game from being executed on the emulator. Blacklisting the game? RPCS3 is open-source, any attempt would easily be reversed. Attempting to take down the project? At the time of this post, this and many other games were already playable to their full extent, and again, RPCS3 is and will always be an open-source project.
But, once again, we’re seeing just how weird and messed up the DMCA’s anti-circumvention provisions are — and how people are now using them similar to the DMCA 512 notice and takedown provisions. I assume this will not be the last time we see these kinds of questionable takedowns being sent.