I actually expected Nintendo to take down the decompilation of Mario 64.
they cant because just like GTA RE3 etc it also requires you to have a prior copy of the game to get all the copyrighted assets to compile their decompilation
since re3 and mario dont actual contain those assets they dont actually have real ground to stand on.
thats why take2 lawyers are idiots since they are quoting soemthing that doesnt exist in original repos
As I understand it.
Code counts as creative expression. Be it in the code itself, the arrangement of it into a functioning whole (see also typesetting for old public domain books and stuff there) and such. As there are limited sensible ways to do a task in code you get far more provisions for matching code than you do in music where copying someone's melody wholesale gets you a slap, but that is limited in relevance here.
Taking the code, running it through a disassembler and then calling it your own is not the done thing any more than putting it in a zip file makes it your own thing. Indeed merely looking at a disassembled work can be legally dubious in the eyes of some, some including the law as it is generally interpreted (bit like leaked data or trade secrets/privileged information from a former employer).
Just because your disassembler has some smarts now and can recognise by whatever means a list of a few instructions as being a call to this library which we know, and this code is the library itself that we also know, this type of construct in a high level language... that does not change the fundamental underlying assumption. Still falls under what would be known as a derived work.
There is some scope to do things beyond emulation, interpretation, simulation and translation (and I guess remote play but that is more a technical alternative for someone wanting to have it on a given screen/input combo) that the law does allow/consider acceptable uses/be allowed because substantial non infringing uses. This would be known as clean room reverse engineering. Here you get to observe play, how much you are are allowed to look at plain old memory even being debated at times, and then recreate all the mechanics from that. If it sounds like it would take an age then yes, yes it would; I would hate to do it even for the original NES Mario Brothers never mind a fully 3d open world game with all sorts of one off behaviours and extras, though I suppose there are ways to speed it up (main one being make a functioning version, find where it meets something new/has a crash, fix and repeat). Has however been done for some games, and many protocols and file formats (libreoffice don't sit there with a disassembly of microsoft word looking for how it interprets things, they get to sit there, make a new document, save, type some text, compare blank to text, make text bold, compare, and repeat for however many features they care to implement* and all the potential interactions between said features).
Some would even go so far as to say those that participated in the first stage should be barred from working on the implementation for similar reasons to the leaked data/trade secrets concerns (while they might not have necessarily seen a disassembly they could have and that is good enough to bar them).
Depending upon your reading of the DMCA then bypassing protections could be an issue but that does not appear to a factor in this at this point.
*most people only use 10% of the features available and all that, however the latter part of that phrase is everybody uses a different 10% so hey. Back in games world then how much of it you need, how much you can guess from what you already know (if A=1, B=2, C=3 and you determined it by observation then you probably have a pretty good guess what D=), how much of it you care to make better (pedestrians panic when you fire guns, don't need code Rockstar wrote and instead can make a panicking pedestrian that will likely satisfy the needs of your players, maybe even spice it up a bit and make a concealed carry mod in the process) and how much you care to make over from scratch for the same general principle becoming a debate for the project leaders and the intent of the project. Said changes did however come up in the document where they noted the ones made, presumably as a backdoor for trademark concerns and such like where a product with all the appearance of their product but different functionality might cause confusion in the typical consumer (which would extend to grandma buying games for her snot nosed, but naturally of age, grandkids).
Amusingly enough Rockstar would not be able to turn around as it stands now (there is a reason most lawsuits like this end up with "give us rights to your code" as part of the settlement) and use the disassembled code on the project pages as all the arrangement, interpretation, comments and the like would potentially form reverse engineering project's own copyrighted/copyrightable additions to the code. We will skip the code forensics bit today though as all parties involved seem to agree it started with Rockstar's own code.
Assets of a more classic arty nature (pictures, text, music, vocals, animations...) not being included is generally a testament to them not being free and clear, which when you look at the code as falling under the same remit...
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