In recent video game news, gaming giant Nintendo filed and
settled a lawsuit against the developers of the popular Nintendo
Switch emulator, Yuzu. This legal battle captures the ongoing
conflict between gaming companies and emulator developers,
particularly in the realm of copyright infringement and piracy.
What Is An Emulator?
A video game emulator is a piece of hardware or software that
replicates functions of a video game console on a different device.
Put simply, emulators effectively recreate the experience of using
the original console on a computer or smartphone. Emulators often
include additional features not available in the original games
like cheat integration, save states, performance enhancements, and
third-party game modifications.
Emulation software itself is not inherently illegal, as shown by
the Ninth Circuit Court of Appeals case Sony Computer
Entertainment v. Connectix Corporation in 2000. In
Connectix, Sony sued software company, Connectix, for
copyright infringement related to its Sony Playstation emulator. On
appeal, the Ninth Circuit held that Connectix’s effective
reverse engineering of Playstation’s BIOS (basic input-output
system) was not infringing, and instead constituted fair use. The
Court effectively ruled that an emulator which reverse-engineers
functional aspects of a game console is not, in and of itself,
illegal.
While emulators are not inherently illegal, their obvious uses
for playing games which are copied and distributed without
permission or pay to the game developer (also called pirated games)
still raises significant legal concerns.
Nintendo’s Allegations Against Yuzu
Yuzu is a popular emulator developed by Tropic Haze that enables
users to play Nintendo Switch games on platforms like Windows PC
and Android devices. According to the complaint filed in federal
court for the District of Rhode Island, Nintendo has robust
encryption processes on both its game files (“ROMs”) and
on the console itself, meant to prevent unauthorized gameplay or
copying. As just one example of that encryption, each game
cartridge encrypts the game’s audio-visual output, rendering it
useless without the console’s own proprietary decryption key
running at the same time. Those encryption methods running
simultaneously permit the games to be played.
Nintendo claimed that Yuzu circumvented this encryption by using
illegally obtained Switch decryption keys, which can be used to
play unauthorized copies of Switch games. In so doing, Nintendo
alleged that Yuzu facilitated “piracy at a colossal
scale,” and allowed Yuzu users to play “virtually any
game made for the Nintendo Switch, all without paying a dime to
Nintendo” or any other Switch game developer. While Yuzu is
free to download, Tropic Haze offers exclusive updates and early
access features for supported games through Patreon (a website
where content creators offer sponsorships in exchange for access to
content).
Nintendo sought a permanent injunction against Tropic Haze,
alleging that it caused Nintendo irreparable harm by enabling users
to illegally decrypt and play Nintendo Switch games without
purchasing them. The complaint cites its recent hit game The
Legend of Zelda: Tears of the Kingdom as an example of
Yuzu’s piracy facilitation. Full copies of the game were
allegedly available more than one week ahead of the game’s
public release date, and during that ten-day period, the game was
downloaded by users more than one million times. Nintendo claims
that Yuzu’s Patreon support doubled during this time,
suggesting a correlation between the emulator’s popularity and
piracy.
Nintendo’s Legal Theory – The Digital Millennium
Copyright Act
Nintendo’s primary claim in its Yuzu lawsuit was violation
of the Digital Millennium Copyright Act’s
(“DMCA”) anti-circumvention and anti-trafficking
provisions. Broadly, the DMCA is the portion of the Copyright Act
which provided protections for digital copyrights. While the
DMCA’s section safeguarding websites from user-generated
content has gained recent attention, the DMCA also prohibits
unauthorized access to digital works, such as the manufacturing or
selling of products or services designed to circumvent
technological measures controlling access to copyrighted content.
In other words, the DMCA prohibits companies from creating
technology designed to get around encryption that protects
copyrighted material.
By developing and distributing Yuzu, Tropic Haze allegedly
enabled users to bypass the encryption on Nintendo Switch games,
allowing them to play unauthorized copies of these games on
platforms like PCs and Android devices. According to Nintendo’s
theories, these actions were how Yuzu circumvented and trafficked
Nintendo’s copyrighted Switch games and therefore violated the
DMCA.
Yuzu Settles
Nintendo sought substantial damages from Yuzu developers,
including $2,500 for each violation of the anti-circumvention and
anti-trafficking provisions of the DMCA, along with $150,000 for
each separate instance of copyright infringement. Additionally,
Nintendo had requested that the court seize and destroy all copies
of the Yuzu emulator, along with related software and hardware.
Less than a week after receiving Nintendo’s suit, Tropic
Haze and Nintendo reached a settlement in what can only be
described as a total victory for Nintendo. Tropic Haze agreed to
pay Nintendo $2.4 million and cease any activities related to the
Yuzu emulator. It was also ordered delete all encryption
circumvention tools and copies of Yuzu, and surrender the
emulator’s domain to Nintendo.
Implications For Emulator Development
This DMCA strategy is tried-and-true for Nintendo, a company
with a reputation for vigorously defending its intellectual property from would-be
infringers. As the complaint itself points out, Nintendo has
successfully brought four federal infringement suits on similar
theories since 2020. Further, in May of last year, Nintendo sent a
demand letter to game developer Valve, requesting that it stop its
plan to host the Dolphin emulator on its popular game distribution
platform, Steam. Nintendo argued that Dolphin’s software, which
emulated Nintendo’s Gamecube and Wii consoles, included Wii
decryption keys in a similar manner to Yuzu instructing users on
how to access Switch’s decryption keys. Valve agreed, and its
plan to host Dolphin on Steam was summarily halted.
While Nintendo has had a string of successes with its DMCA
claims, the theory has not yet run up against a developer ready to
thoroughly fight the claim in court. Until one does, it remains
unclear if modern emulators could raise a fair use defense like
Connectix did 24 years ago, or raise another defense to provide
modern emulator developers any breathing room.
Despite Nintendo and other developers’ best efforts,
emulation is not going anywhere. Passionate developers see
emulation as the only way to preserve legacy video games, just as
older movies are preserved in videotape, DVD, or Blu-Ray format.
Despite the settlement, Yuzu’s codebase is still available on
GitHub. Emulators can and will continue to offer unique gaming
experiences, and much to the chagrin of game developers, will also
continue to test the bounds of legal emulation and the DMCA as they
do so.
Conclusion
The scuffle between Nintendo and Tropic Haze highlights the
ongoing tension between gaming companies and emulator developers.
As the gaming industry continues to evolve, navigating the legalities of emulator usage
and copyright infringement remains a complex issue for all parties
involved.
Contributions to this blog by Danielle
Yurkew.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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