Responding to https://www.reddit.com/r/youtube/comments/k6ohxl/after_11_years_on_youtube_it_has_finally_happened/genay1q/
Links: https://en.wikipedia.org/wiki/Video_game_console_emulator#Legal_issues https://en.wikipedia.org/wiki/Content_ID_(system) https://en.wikipedia.org/wiki/YouTube#Copyrighted_material https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp. https://en.wikipedia.org/wiki/Smith_v._Summit_Entertainment_LLC https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act
(This comment sort of spiraled way out of control as I was writing it; read the bolded parts for a tl;dr summary.)
I mean, a massive number of modded Breath of the Wild videos have gotten DMCAd by Nintendo, despite the fact that 1) modding is not piracy and is believed to be allowed under current US copyright law, 2) modding does not inherently require emulation (even if emulation makes it a lot easier), 3) jailbreaking mobile computing devices is a recognized exception to the DMCA per the US Copyright Office (it is currently unclear if video consoles count as such under this exemption as it hasn't been tested in court yet, but it could also be argued that the Switch is in fact a "general purpose tablet" as it allows for video streaming and limited social media use), 4) emulation is considered fully legal under US copyright law per Sega v. Accolade (decompilation and reverse engineering of software to produce compatible technologies is considered fair use), Sony v. Connectix (reverse engineering of a system BIOS, even if doing so requires the creation of intermediate copies of the BIOS code in the process, is still fair use), and Sony v. Bleem (creating systems to allow copyrighted software to run on third-party technology is not considered unfair competition, and using screenshots of copyrighted software in advertisements for said technology is considered fair use), and 5) format shifting of content for personal use is considered fair use per the precedent set in Sony v. Universal (the "Betamax case", which ruled that home video recording devices were not infringing on content creator copyrights), which was extended by Galoob v. Nintendo to include both the extraction of copyrighted code onto a different system for personal use and on-the-fly modification of copyrighted code for the purposes of "personal enjoyment", as long as the user had legally purchased a copy of the software in question.
(Quick side note: it's commonly stated that digital software and game purchases don't actually count as "buying" the software in the same way that purchasing a physical copy of it does, with many saying that you are only receiving a "license" to the software. This argument...doesn't actually make any sense legally. Purchasing physical copies of software doesn't give you the right to make copies of it to sell yourself because of copyright. In the same way, purchasing a digital copy of software legally gives you the same rights as if you had purchased it in physical form, as you are still considered to be purchasing a good, even if the "good" is intangible (if this principle and concept didn't exist, it would be impossible to justify the existence of intellectual property in general, as that is also a good with economic value that doesn't exist in a physical form). Now, there is an argument that software locked behind a subscription fee is not a good but instead is a service, and thus would create a whole different (and much more limited) set of consumer rights (via the same concept that says that having a gym membership doesn't mean you can just pull up a truck and start loading up the exercise equipment to take home). The problem is that the distinction hasn't actually been tested in court yet, and so currently exists in a legal limbo, with many game companies saying things that should probably be legally considered goods are actually services, and as such you have very few rights. For more on that, I recommend this very in-depth video by Ross Scott on the subject.)
Micro Star v. FormGen Inc., however, did later find that the creation and sale for profit of custom levels and game mods constitutes the creation of an unauthorized sequel or derivative work, as even if the mod requires the base game, it is still infringing on the underlying storyline and scenarios, it also infringes on the copyright on the game's user interface and/or audiovisual display as established in Midway v. Artic, and the uses of screenshots and trademarks on the mod's advertising material and box art also constitutes infringement; altogether, this pushes mods into a legal gray area that was only exacerbated by A&M Records v. Napster citing it as precedent and cementing the concepts of "contributory infringment" (you are inducing or encouraging someone else to commit copyright infringement) and "vicarious infringment" (content warning: there is no NSFW content or even the direct discussion of such in this link, but the case in question does involve the piracy of NSFW content, so just be aware of that) (you aren't infringing yourself, nor are you inducting someone else to infringe, but you indirectly benefit from continued copyright infringement; the most notable usage of this argument is that payment processors who support websites or businesses engaged in infringement are themselves secondarily liable). Note however that Religious Technology Center v. Netcom does limit this to requiring the entity have actual knowledge of infringement taking place, and that a technology merely making infringement possible in some way doesn't create liability, this would later become a major tenet of the DMCA and led to the creation of DMCA takedown notices as a legal way of alerting a host or provider of the existence of infringing content on their services, and ensures they cannot be secondarily liable as long as they process any DMCA notices that they receive in a timely manner. (Also note, however, that things like Content ID or Twitch's extreme music crackdown are not actually the result of DMCA. DMCA only sets out the bare minimum requirements to not be considered to be indirectly contributing to the copyright infringement of your users; under the First Amendment protections of freedom of speech and freedom of association, platforms are free to implement whatever additional forms of copyright moderation they wish through deals with rights holders. Additionally, despite popular opinion, Content ID is not actually court-mandated as a result of Viacom v. Google; the case was initially rejected as Google had not violated the terms of the DMCA, but Viacom appealed and got it reinstated. It was then settled out of court under an undisclosed agreement, which is generally believed to include the continued operation of Content ID.) Notably, despite popular opinion, copyright holders are required to consider fair use in good faith before filing DMCA takedowns per the outcome of Lenz v. Universal Music Corp.. While this does require a hypothetical defendent to show legitimate bad faith on the part of the copyright holder, and thus might be difficult to win in court, this would certainly provide legal ammunition to anyone who tried to fight the now-common takedowns of content providing criticism and commentary of copyrighted works
(I am not a lawyer, the proceeding comment does not constitute legal advice in any way, shape, or form. I am simply a computer science student who is slightly obsessed with the incredibly confusing nuances of video game law.)