this post was submitted on 01 Oct 2024
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Depends on where you live. Copyright law varies significantly from country to country.
In the USA, section 117 of the copyright act lets you create a copy for archival/backup purposes only. What I'm unsure about (and don't know if there's any relevant caselaw) is whether bypassing copy protection to create the copy violates the DMCA.
The equivalent Australian copyright law explicitly states that you can use the backup copy instead of the original one. The US law doesn't (all it says is that you can make an archival copy, not how you can use the archival copy), so it's a grey area.
Both laws are for "computer software", but you could easily argue that a video game is computer software.
I don't see any way you could argue a video game isn't computer software. It literally just is.
Nintendo could try make up something like "it's not computer software since the Switch is a console, not a computer" or something like that. Not a great argument, but they have good lawyers and could probably convince a court that it's true.
But the game is running on a computer with the emulator which still strongly lends to it being software
I think I somewhat recall during the peak Wii U disaster era, during shareholder meetings Nintendo would call the games for the system "Software". So, that'd definitely backfire on them I'm sure
Pretty sure they would consider this "format shifting", which is not a valid exception to bypassing copy protection