Is it your position that no entity should ever try to challenge a big company's interpretation of the law, however ridiculous it may be? At that point, why even have a judicial system?

Because the last time it was litigated in the US, the good guys won. But SCEA v. Bleem was over 20 years ago, and there's no guarantee that the courts won't roll back protections for emulation development.

NoA is notoriously vindictive & litigious, and they have more money than the Dolphin devs. Even though Sony lost the case, the lawsuit ruined Bleem. It's not outside the realm of possibility that Nintendo will try to do the same thing to Dolphin, Ryujinx, Yuzu, etc.

So when a bigcorp says jump you expect everyone to just do so?

I think the point is, you’re welcome to place yourself in Nintendos crosshairs, and we’ll cheer you on as you pit your billions against Nintendos billions, fighting for a favorable ruling.

Dolphin developers apparently are not in a position to pit billions against Nintendo. Can’t blame them either.

It’s an expensive theory to test. I would imagine most OSS projects or their contributors are not in a financial position to get to court, let alone see the trial to a conclusion.

I don’t know what to do about it, but it seems we’ve fell into aristocracy of ruling corporations.

That's what advocate and civil rights organizations are for. I bet the likes of the EFF would be very interested in taking this case. It aligns with their incentives to take down the DMCA.

If EFF is very interested, they can find a way to test it themselves. But here, even with EFF's help the developers would be still exposed to risk. EFF is not able to say "we'll fight this for you, pay 100% of expenses and your time's worth, and go jail instead of you if things turn really bad".

The main point is that it's not a good survival strategy for a hobbyist project that may draw the ire of a big company: even if the companies legal action is completely frivolous, it can easily destroy the project (basically the only option they actually have is enough public outcry to get the company to back off due to the bad publicity). Generally speaking laying low is the better option. It sucks, and it's a big problem with the current judicial system, but it is the status quo. It would take someone able and willing to put some serious resources into a risky bet to change that.

Sometimes it's just better to settle for good enough, or in this case pretty damn good.

But no, some of you want the most convenient way. Only this time, that's painted a massive target on the back of what you want.

Every interaction with IP law is a total gamble and if you lose you are gone forever. It's best to take as few gambles as possible

Many people agree but don't have the resources or are risking too much if they try.

If you think you can make a difference, the world will welcome you.

While Nintendo is infamously litigious, there's speculation (without concrete evidence either way) that the recent string of DMCA takedown requests were not made by Nintendo themselves, but by someone impersonating them (as for why, who knows, some people get very caught up in the "emulation hurts game studios" line of thinking).

That seems implausible. There's only one way for the sender of a DMCA takedown notice to get in serious trouble, and that's by lying about being authorized by the copyright holder to send DMCA notices over their works:

> 17 U.S. Code §512(c)(3)(A)(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(emphasis added)

Submitting a DMCA takedown request does not require any authentication beyond a declaration that you're telling the truth. Anyone can do it, even over a Tor connection.

A DMCA notice requires the aforementioned declaration under penalty of perjury, plus some other declarations that are merely required to be good faith beliefs, plus contact information for the sender.

That last bit makes it quite easy to discover that a DMCA notice was faked, thus quite risky for the sender: either they provide contact information for themselves that will be repudiated by the actual copyright holder should anyone question it, or they provide contact information for the actual copyright holder and are unable to carry the charade beyond the initial message and the takedown will not last beyond the initial ~2 weeks for a counterclaim to take effect (plus they'd catch the notice of the actual corporate legal department, who are unlikely to appreciate the impersonation).

> the takedown will not last beyond the initial ~2 weeks for a counterclaim to take effect

I wonder how often a DMCA recipient actually bothers with a counterclaim, though? I thought counter-notices were extremely risky, particularly when dealing with a (seemingly) deep-pocketed entity. Doesn't a counterclaim open oneself up to immediate ligitation within 2 weeks, else the content must remain?

If it is in fact the rightsholder, I assume they won't be happy to simply let the allegedly infringing content stand - which means they have to sue. Of course, if one really believes the claim to be bogus, they can always test it in court. They might even be right, but I suspect they'll be bankrupt nonetheless.

I guess the solution is to just reach out to the listed contact directly... Without it being in the form of a counterclaim? I love this system.

If you infringe someone's copyright they can take legal action at any time. The 2 week timeline is just how long your content takes to be reactivated if they aren't sueing you.

I've worked in the field. Almost nobody bothers with a counter notice. It's just risky.

Either they ignore it and you have to evaluate whether you'll gain or lose money by suing (oftentimes that's not the case, good luck bringing to court some 13 years old living in a different country and making 2k per month from ads) or they just comply as soon as possible to avoid legal drama.

There's no way to actually enforce the penalty of perjury in many cases. I've tried before, lots of big companies will ignore you when you try to get the information on the person who filed the fraudulent claim, which prevents you from doing anything about it. Unless you feel like also suing Google or Valve.

Yikes, this should be more well known. The bigcorps enjoying and abusing their protection from the law, while bullying people into submitting from them and shielding their own workers from any consequences.

If it was all that risky for the sender, people abusing DMCA to tale down youtube videos they dislike would not be as common as it is. The vast majority of the time nothing happens to the claimant and the person claimed to just has to take the punishment.

penalty of perjury works how exactly? because there are a number of high profile politicians or directors from 3 letter agencies who have been found to lie under perjury and as far as I know no one has ever gone to jail. sounds like its a free card to play.

Has anyone faced consequences as a result?

I don't think anyone intelligent enough to compose something resembling a valid DMCA takedown notice would be stupid enough to fake it in that particular manner, when the law deliberately leaves much wider and safer gaps for a sender to abuse the takedown process.

How about if you don’t live in the US? A few million lawsuit is not going to get you extradited, but let’s say the dmca request was created in Russia.

Not even then. Copyright infringement is normally tried in the infringer's jurisdiction.

So got any links to such cases? Its 100% certain some kids have sent invalid DMCA notices over the years. It's basically a prank that doesn't get you into trouble, at this point.

Whoever's been trying to wipe the game Cookie's Bustle off the internet clearly hasn't been punished at all, even when they pretended to be Nintendo.