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:

  1. 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.
  2. 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.


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  • identicon
    Anonymous Coward, 29 Sep 2017 @ 1:57pm

    As far as I understand, Atlus wasn't even alleging that RPCS3 itself circumvents DRM, but that in order to use RPCS3, one must circumvent DRM *prior* to using the emulator, in the form of dumping the disc.

    Which seems to be a much broader implementation of DMCA 1201 - making it illegal not only to make a product that circumvents DRM, but to make a product that does not circumvent DRM itself, but is only usable if someone somehow manages to circumvent DRM

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Oct 2017 @ 10:37am

      Re:

      making it illegal not only to make a product that circumvents DRM, but to make a product that does not circumvent DRM itself, but is only usable if someone somehow manages to circumvent DRM

      Which is exactly the case that even the USSC refused to hear due to the contradicting nature of the DMCA vs. Fair Use. Opting instead for Congress to clarify the language.

      If there is any law that needs repealing / reigning in it's the DMCA. Unfortunately it's more than likely to be replaced with an even worse alternative.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Sep 2017 @ 2:13pm

    In the 70's

    SCOTUS said that IBM's competitors could build plug compatible mainframes as long as they didn't use IBM's IP.

    Isn't this the same thing?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 3:14pm

      Re: In the 70's

      yes, but DMCA did not exist back then. Under DMCA IBM might have been able to keep its monopoly a little better...

      O shucks, yet another "regulation" being used to help "Create/Maintain" a monopoly... go figure!

      reply to this | link to this | view in chronology ]

      • identicon
        Bruce C., 29 Sep 2017 @ 6:15pm

        Re: Re: In the 70's

        Actually, there's nothing similar. The ruling that allowed competitors to sell compatible hardware was from the 1950's and was part of an anti-trust settlement. So it isn't related to copyright or patent law, it was related to IBM's abuse of its monopoly position on computers at the time. The case in the 1970's was an accusation that IBM violated the terms of the 1956 agreement. The "copying" of IBM's IP in that time period wasn't justified under IP law alone.

        The federal government has shown little interest in enforcing anti-trust regulations since roughly the Reagan administration. This is a shame because "too big to fail" implies an influence on the economy that is so large that monopoly power is implicit. The power of monopolies is what gives us stuff like crappy customer service, unprosecuted financial fraud and forced arbitration.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 29 Sep 2017 @ 3:15pm

    CAN i LAUGH NOW?

    1. IS THERE ANY MENTION OF drm bypass ON THE PATREON SITE??
    nope, NADA..and every other negative word..

    2.Un-released, product?
    yep..its not done, so it isnt a crime..

    3. OTHER programs that do the SAME, Emulation??
    YEP..

    4. do those other Emulators BYPASS DRM??
    Dont know.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Sep 2017 @ 5:57pm

      Re: CAN i LAUGH NOW?

      There were mentions of the DRM bypass on the site. The blog post mentions they removed them.

      The emulator has been released to the public and can run games. It is released by any sense of the word.

      It's the only PS3 emulator of its kind.

      To emulate commercial games, a PS3 emulator will need to bypass the console's DRM at some point.

      reply to this | link to this | view in chronology ]

  • icon
    afn29129 (profile), 29 Sep 2017 @ 7:10pm

    DMCA and foreign countries

    Sigh. It's gotten to the point where it's a better idea to program, live, and host your software in a place other than the USA, where the DMCA doesn't apply. Although the MPAA still went after DeCSS Jon who lived in Europe.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2017 @ 3:48pm

    of slippery slopes

    It's good to see that Patreon did not drop the hammer so easily, but this is an ongoing problem for many "platform" companies that find themselves the focus of complaints by angry activists who systematically work their way up the food chain in search of a sympathetic ear.

    Following the example set by various social media and crowdfunding sites, as well as payment processors such as Paypal, Patreon has started down that slippery slope and is now engaged in banning people for expressing an unwelcome opinion or being engaged in legal activities that some government entity, outraged individual or self-serving pressure group finds objectionable.

    While some people may welcome the idea of private companies, especially monopoly entities, taking it upon themselves to impose their own form of "street justice" by denying funding opportunities to alt-right sites or DMCA-compliant Usenet providers and indexers, the bigger issue is how much farther this will expand (because it always does) and especially because payment providers are always under this kind of pressure.

    Although Patreon was not yet born when Wikileaks came under embargo in 2010 by virtually every US-based payment processor, including Visa, MasterCard, PayPal, Bank of America and Western Union, it's almost certain that Patreon would have joined that Wikileaks blockade.

    In short, the decisions of companies like Patreon are less influenced by any kind of adherence to universal principles as they are to personal prejudice, outside pressure, expediency, and above all, profit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Oct 2017 @ 12:57pm

    Question.. Were users required to have purchased a valid license to play Persona 5 on the emulator?

    There is also the possibility that the developer was given money by Sony to remain platform exclusive, and they are policing that relationship.

    I understand free market economy and the need to break up monopolies, but companies also need to protect themselves against piracy and trademark/copyright violations.

    reply to this | link to this | view in chronology ]


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