[CyberRabbi]

What are "fair use rights" in this context? Fair use specifically concerns creating derivative works. You don't by default have a right to use Nintendo's IP however you like, no matter how virtuous or benign you think your use is. You are only licensed to use their products in the ways that they permit.

[EMIRELADERO]

Fair use (specifically the American variant) is a constitutional and statutory doctrine that balances the rights of the copyright holder and society's. It's decided by 4 factors, weighed "holistically" and individually. Ultimately it's up to each judge to decide whether fair use is present or not. And it applies to all possible infringments of copyrights, not just derivative works.

[CyberRabbi]

Thank you for confirming that fair use is not a right. Second, yes it absolutely concerns derivative works as it is a concept in the domain of copyright. While not every violation of copyright is a derivative work, only derivative works are justified under fair use. For instance, piracy can never be justified under fair use. The new work must be transformative to a significant degree.

This topic on the other hand has nothing to do with fair use as there is no derivative work being created. It also isn't a copyright violation, it's a violation of the DMCA. Specifically it violates the DMCA's provision that prohibits distributing tools used to violate the copyright of other work.

[EMIRELADERO]

> While not every violation of copyright is a derivative work, only derivative works are justified under fair use.

Absolutely not.

Just as an example, the Sony v. Universal case involved direct copying from the TV stream to a VHS tape. Not only that, but it saved Sony itself from the contributory infringment claim too, not just the hypothetical users from their hypothetical direct infringment.

As for the DMCA issues, they're probably unconstitutional. Because fair use is constitutionally required (as held by SCOTUS in Eldred and Golan), a law that results in the doctrine being basically impaled by proxy can not stand.

This is the same rationale the court used in the VHS case. Because a fair use was found, Sony was allowed to continue making their devices. If it was tried today, the DMCA's anti-trafficking provisions wouldn't be allowed to stand IMO, as they would conflict constitutionally with the fair use requirement and factual finding in its favor by the court.

[Spivak]

I think the fair use rights would be "you are allowed to write an emulator for the switch and any software components necessary to make games interoperable to the platform of your choosing."

And while you are allowed to implement technical measures to prevent people from doing this or make it difficult you shouldn't have any legal protection.

[CyberRabbi]

That has nothing to do with fair use. That is a misuse of the term which has a specific meaning in the context of justifying derivative works of copywritten material.

You are allowed to make an emulator because there is nothing that says it's illegal. Under the DMCA, you are not allowed to distribute tools which help in the circumvention of copyright, which is what this tool does. It allows people to bypass the copyright protections Nintendo has put in place to prevent people from running copied games without permission.

[Spivak]

The fair use right that you have is the right to make copies of works for your own use. If you own mario party on the switch and would like to play it on your computer you are allowed to do make a copy of the work to do so.

Tools that facilitate this legal use shouldn't be an able to be taken down. It doesn't matter if you think they're using those tobacco accessories for something else.

But a tool that allows you to break say HBO's streaming DRM wouldn't get this protection.