In a series of events beginning yesterday with PS3 Emulator RPCS3 removing all mentions of Atlus' RPG Persona 5 from their website and patreon, information has emerged as to why that happened.
The story began when Atlus sent Patreon a DMCA letter requesting that Patreon take down the emulator's patreon support, which currently brings in over $3000 to support the development of the open-source PS3 emulator. At that time Atlus gave the following reason according to the developers in a post on Reddit:
The PS3 emulator itself is not infringing on our copyrights and trademarks; however, no version of the P5 game should be playable on this platform; and [the RPCS3] developers are infringing on our IP by making such games playablePatreon upon receipt of the DMCA emailed Atlus back asking for more information, as they felt that it was not reasonable and that they believed the emulator fell under fair use. Atlus' reply alleged that RPCS3 was helping users circumvent DRM by its explanation of how to move PlayStation 3 content to the computer (known as "dumping"), something which the site doesn't do, instead providing general broad stroke directions. Importantly, like most emulators, RPCS3 does not host any ROMs or encourage the distribution of them in any way.
While this discussion was ongoing, Patreon reached out to the RPCS3 team. Deciding to err on the side of caution, RPCS3 opted to remove all mention of Persona 5 from their website and patreon page. Patreon has explained how they reacted in a statement to US Gamer saying,
As a platform, we respect rights holders' intellectual property. We try to balance that with a review process to make sure complaints are not overly broad. In this case we believed the underlying purpose of the creator to be legal and worked with the rights holder to find a solution. Based on our conversations with Altus, we believe an acceptable solution has been reached. If Atlus has further concerns, we would continue our conversation with them to try and reach a fair solution that respects their rights while otherwise allowing for a legal use of Patreon.As things heated up, the developers of RPCS3 made a post on Reddit explaining why they had removed all mentions of Persona 5. In it, they address Atlus' accusations and also reveal that Atlus had not had any prior communication with the team or Patreon. They also explain that in the country in which they are based and where their servers are hosted, which is not the USA for either, that the dumping of game files is legal for personally owned games for personal use. The idea of blacklisting Persona 5 so that it specifically wouldn't run on the emulator was brought up and dismissed by the team who explained that due to RPCS3 being open source any effort to do so would be easily reversed. The RPCS3 Team also implored that you comply with local laws, stating:
Before ending this post, we would like to remind you that when dumping video game software, users are subject to country-specific software distribution laws. RPCS3 is not designed to enable illegal activity. We do not promote piracy nor do we allow it under any circumstances. Please take the time to review copyright and video game software dumping laws and/or policies for your country before proceeding. By following our game dumping instructions, you will do so at your own discretion. Should you follow these instructions against your local law, we shall not be held responsible for your actions.Later in the day, Atlus posted a statement on their website, confirming that they indeed had issued the DMCA takedown notice. In their statement, they give the reasons for their actions as follows:
Later in the day, Atlus provided a bit further comment to Waypoint when they told author Patrick Klepek that they had no plans to take further action at this time.
- 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.
- 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.
When looking at Atlus' statements on the matter, it is important to note again that RPCS3 never provided any downloads for Persona 5 and that there are in many countries completely legal ways to dump files of games that you own. Additionally, back in 1999, the fight over emulation was fought in the United States regarding emulation, in particular at that time commercial emulation. That happened with Sony suing Bleem! and Connectix Virtual Game Station over PlayStation emulation. While the companies behind both would end up dying, in large part due to the costs of legal battles, that happened only after each won the legal fight over it. A good, quick rundown, was done by the Gaming Historian, which you can view here.
Quick TakeAtlus has severely overreached themselves here. At the very most they might have been able to complain about trademark use, but that would be a stretch and there's absolutely no copyright violation going on here. This is a case of a company getting way overprotective, like they did over streaming, and going after anyone by throwing weight around. While I think Persona 5 was great, this is just wrong and I'd maybe implore Atlus to look at the message of their own games and how it applies to them.
Also, YouTube, you could look at how Patreon handled this for ideas on fair use handling.