Nintendo is suing the creators of Switch emulator Yuzu

Amusingly Valve themselves released an official trailer for the Steam Deck which showed Yuzu installed on the homescreen.

It was quickly taken down and re-posted without any references to Yuzu, probably after a panicked email from legal.

https://www.pcgamer.com/valve-edits-steam-deck-trailer-to-re...

I mean Valve literally had a trailer with a nintendo emulator as an app installed... Valve doesn't need to do RND for its games because they can just use whatever is on steam that is playable on the deck plus a ton of games from nintendo consoles via emulators as a selling point.

It would be amazing if Valve stepped up with legal funds/protection there. They do get money from people buying SteamDecks for emulation and well... free publicity if they take on Nintendo.

In 2022 Nintendo starting taking down Youtube videos showing Steam Decks running Switch games: https://www.resetera.com/threads/nintendo-started-blocking-v...

What are they supposed to do? Leave videos about piracy of their own IP untouched?

It baffles me how people believe they have a fundamental right to pirate Nintendo software without consequences.

If that’s true, I wonder if the Switch successor will be a lot similar.

I am not part of that scene, but I am sympathetic to emulation. Is there a notable difference between Yuzu and other switch emulators? I wonder if there are other reasons than Patreon ( money changing hands ) or there were other considerations?

Patreon about page begins:

yuzu is a Nintendo Switch emulator capable of running many games! With yuzu, you can play such games as Pokémon Sword & Shield, Xenoblade Chronicles 3, Super Mario Odyssey, Mario Kart 8 Deluxe, Pokémon Legends: Arceus, Fire Emblem:Three Houses, and Super Smash Bros. Ultimate — on your PC.

Regardless of the legal status of an emulator, I wouldn't list game titles if I were writing that copy.

Making money is not a factor for fair use, but one factor is whether it’s a for-profit endeavor; you can be making money to fund an operation without doing so for profit. And even then, courts haven’t been too concerned with that aspect when other aspects are clearly met.

I'm actually surprised it took so long considering they were seeking crowdfunding while openly advertising the piracy use case and raking in thousands of dollars a month (now $30,000 - wow). Patreon rewards can be construed as profit-seeking; Patreon even charges sales tax if you donate under a reward tier (they don't if you go through the no-reward custom donation flow). It's cool to hate on Nintendo for being overly litigious these days, and they deserve that reputation, but with projects where piracy is clearly the main goal, and a significant amount of money is involved, I find it hard to sympathize. Even if it's technically legal, it strikes me as parasitic behavior.

It doesn't change much legally to my knowledge, given that Sony v. Connectix was about a commercial, for-profit emulator (literally sold in stores) that directly competed with a console being commercialized at the same time (the PlayStation) and Sony lost in that case, with the 9th Circuit declaring it was fair competition and legal for Connectix to emulate PlayStation games.

This won't matter. The goal will be to run them out of money. It's an open source project and they most likely don't have the capital to fund any sort of lengthy lawsuit.

bleem! (PlayStation emulator) was sued by Sony and was forced to close down because of legal fees, so I guess that counts as a success for Sony.

I seem to recall a bunch of ROM sites disappearing as well, but not sure if that's because they got sued or for other reasons. Some must have been sued and consequently shut down, so maybe not a bad idea (for the companies) to at least try?

I don't believe so (the Sony v. Bleem cases mainly ended up in favor of Bleem), but also I don't think anyone has tried since the DMCA. It looks like Nintendo is taking a 'trafficking in circumvention device' legal strategy as opposed to a strictly anti-emulator legal strategy.

Sony vs. Bleem! in 2001. Sony lost, but the cost still shut down the project.

Are there any cases of emulators being sued successfully?

Sony lost all their cases in the past. They claimed they infringed copyright when copying PS1 BIOS for reverse engineering purposes, court ruled that was fair use as it was necessary to gain access to the unprotected elements of the console. The other case was some bullshit about advertising, they had the audacity to claim screenshots violated their copyrights. They lost in court but won in the market by bankrupting their competitors.

Who knows what's gonna happen in 2024 though? Felony contempt of business model seems quite well entrenched at this point. Company puts "IP" into their product and suddenly they get to control what you do with it and it's illegal for you to resist in any way.

Common sense says emulators are alternative compatible implementations of the original hardware which increases consumer choice. People should have every right to make an emulator, doesn't matter if it's an old console or one that's just been released. Emulators are competitors to Nintendo. If they don't like it then they should drop their "exclusives" nonsense and start releasing games on PC where they belong with better graphics and performance and all the bells and whistles that emulators provide.

Who knows what these courts are gonna decide though. The copyright industry basically buys these laws anyway, there's no reason to believe they will rule favorably to the consumer.

Not necessarily. It's fairly easy to prove that if the emulator did not exist, the leak would be fairly inconsequential; and considering how easy it is to show the percentage of pirating users versus legitimate users (probably 95%+), it's not a good look.

There's also the issue that, unlike prior emulators, Yuzu risks running afoul of DMCA anti-trafficking provisions for circumvention devices and software that uses circumvention devices. So, while per se emulating the Switch might be legal, decrypting the games may be illegal (as would software that is useless if it is unable to do that decryption).

Edit: Strongly recommend reading my follow up comment explaining historical precedent: https://news.ycombinator.com/item?id=39530558

There's actually multiple arguments with zero proof there.

- they didn't prove that Yuzu contributed to piracy (and since the amount of piracy tools on the Switch itself that's far from obvious that Yuzu is a first choice)

- they didn't prove that the leak itself lead to a loss of revenue. And that's also very hard of an argument to make considering that this game was a huge commercial success.

It's called contributory copyright infringement. The Supreme Court only ruled that the VCR was legal based on a very narrow use case: if a television broadcast aired once and only once, never to be seen again, and the user could not see it as scheduled, they were legally entitled to use a device to record the broadcast and watch it at a later time -- once, after which they would presumably have to destroy the recording. And there are legal experts who believe even that is a yard too far.

Nintendo's case is a lot more airtight. To play anything on yuzu, you have to defeat the encryption on Switch games, itself a felony DMCA violation (irrespective of how good or bad the encryption is). Therefore, yuzu can only be used to play pirated material, therefore it contributes to copyright infringement.

"But muh homebrew" -- people who want to develop for Switch can get a development license from Nintendo. The fact that this is an option would weaken developing for Switch as a legitimate use for yuzu.

It is also fully their fault the game was leaked early. They released the game carts to buyers too early, and their system5 crypto scheme was already broken by the time the game came out. Yuzu didn't break system5, nor do they ship the keys needed to decrypt the dumped game files. They did release patches which specifically fixed issues with Zelda, and that wasn't a good look legally - but it isn't illegal to fix inaccuracies with the software.

When you file a lawsuit, you make it seem like the biggest thing since WW2, because it'll be cut down in court over time to a more reasonable level.

There were tons and TONS of ride sharing apps that got shut down as Uber was becoming popular due to regulatory violations: Sidecar, Juno, Poparide, Heetch, Taxify, and there are probably hundreds that got shut down in local markets.

Plenty of companies get shut down for regulatory violations, or employee mistreatment. Pointing at some extreme outliers is nothing more than a form of selection bias.

Yeah, it's a pretty stark illustration of "we have enough money to fuck you up, and are very willing to do so". "Might makes right" in action.

Your monopoly point is an interesting one. Wonder if there's an actual legal case there, as Nintendo have done a lot of this bullying over the years.

Also it seems to me that Nintendo might themselves violate antitrust laws by using their monopoly power on market of Nintendo-compatible games, and not allowing enough competition there.

Nintendo is being a bully here, but what on earth does a monopoly on the market of your own platform even mean?

Anyone can sue anyone for any reason at any time. Unless the lawsuit is in bad faith and meritless (only a court can make that determination), there is no argument to be had about "lawfare". The only difference here and in other companies is that Nintendo actually follows through with their legal threats instead of just filing complaints they don't intend to take to court.

This is not a case of a company that does something massively useful but then does a (relatively to the size of the company) small illegal thing on the side. The whole raison d'etre of Tropic Haze LLC is to, allegedly, break the law.

Monopoly is literally the point of copyright. That's its explicit purpose.

Their entire case rests on the presumption that the DMCA protects Nintendo's monopoly over not only distribution, but playback of its console game software.

Hey, let's be fair; those copyright infringement laws also only protect corporations!

The definition of capitalism is literally a system of economic relations that prioritizes the right to leverage one's existing capital to accumulate more capital, above everything else and indefinitely.

Welcome to the real world. Either you are powerful enough to change the law or you have to follow whatever law exists

Man, the US copyright system is broken :^(

I'm not sure they're necessarily claiming the keys are copywritten (which honestly would be a terrible strategy), but instead that yuzu's ability to injest keys and encrypted copywritten works (decrypting them on the fly as needed like a switch would) constitutes a circumvention device banned by 17 US § 1201.

https://www.law.cornell.edu/uscode/text/17/1201

[4] "On information and belief, Yuzu users have (1) dumped Nintendo games they have lawfully purchased and copied the game ROMs into Yuzu; and (2) obtained Nintendo games online from pirate websites and copied those game ROMs into Yuzu. Each such reproduction constitutes a violation of 17 U.S.C. § 501(a) for which Plaintiff is entitled to damages under 17 U.S.C. § 504 and injunctive relief under § 502"

How on earth can they claim that the developers of Yuzu are responsible for copying done by their users?

"On information and belief" - legalese for "we have no evidence".

The last time I tried to use Yuzu or Ryujinx it was still quite difficult. I had to get out my switch and physical game cartridges and manually dump a bunch of decryption keys and game files. It is absurd that Nintendo is trying to claim these emulators are piracy tools or intended for piracy when they don't seem to do anything to make it easy to play a pirated game copy.

Nintendo has no leg to stand on legally speaking, and there's a precedent waiting to happen.

IANAL, but my understanding is that while emulation is unambiguously legal in the US after Bleem vs. Sony, an emulator which decrypts games is maybe not legal under the DMCA circumvention rules, and those have never really been tested in the context of an emulator. The Bleem case happened shortly after the DMCA was enacted, but PS1 games weren't encrypted or otherwise protected from being read by anything besides a PS1 so Bleem didn't have to circumvent anything. That seems to be the angle Nintendo is taking here, that Yuzu is the equivalent of something like DeCSS since it has the ability to circumvent their DRM scheme.

precedent waiting to happen

no need, Sony already got us one. Bleem and VGS were a big business, Steve Jobs himself advertised VGS during Macworld 1999 http://www.youtube.com/watch?v=VUfu-xOGr1U&t=9m0s

Sony sued Bleem and lost in court

Sony Computer Entertainment America v. Bleem https://en.wikipedia.org/wiki/Bleem!#Sony_lawsuit

Sadly court case legal fees bankrupted Bleem, Sony later bought VGS from Connectix, and hired Bleem programmers.

Agreed. A sensible enough judge could throw this out on summary judgement, circumventing the opportunity for Nintendo's lawfare. All of Nintendo's points have been tried, so there's really no need to bring this into argument. Even if all of their claims were true, they're not alleging anything illegal. Take it to court, ask for summary, and strengthen the legal defense for this kind of stuff. I really hope they don't roll over, even if nobody can blame them for doing so.

Nintendo has no leg to stand on legally speaking, and there's a precedent waiting to happen.

Don't be so sure. From the article:

Emulator tools aren't inherently illegal, but the way in which Yuzu is being actively used and promoted is what Nintendo appears to be objecting to here.

So it depends on what is actually in the case. At best, Yuzu needs to simply update some of its marketing material. At worst, they need to shut down and open under a new name / LLC, while also updating marketing material.

I don't think Nintendo's argument that Yuzu's primary use case is piracy holds any merit. Nintendo is quite literally a part of the reason why people pirate Switch games they already own.

What do you have to do to legally play Switch games on Yuzu? Oh, idk...

* Jailbreak your Switch.

* Dump your decryption keys.

* Dump your games.

* Never update your Switch ever again.

* Pray Nintendo doesn't shove an update down your throat.

* Void your warranty.

* Hope Nintendo won't brick your Switch.

How many people would use Yuzu legally if it weren't for Nintendo's anti-consumer practices? Nintendo can't just argue that Yuzu is made for piracy when Nintendo pushes people to piracy who legally own the Switch and Switch games in my opinion.

Hammers are used for theft, as well. Even if Nintendo's business would benefit from emulators not existing[1], it doesn't mean we should ban emulators (or create laws which allow multinationals to sue open source emulator projects out of existence).

[1] which is not necessarily true

Seriously it's just bizarre how obtuse HN can be when it comes to piracy.

Nobody is dumping their own games. Very few buy the switch games they emulate.

The following usual claim is "it's Nintendo's own fault for not releasing their games on PC and Android". What kind of asinine argument is that?

Then there's the "emulation isn't illegal", which is probably the only sound argument.

But that isn't the issue here. The issue is the authors are now making over 500k/yr from their emulator, whose only purpose is to pirate games that are still commercially available.

Disagreed. I'm guessing that 99.99% of Switch emulator users do not own the cartridges. They're stealing, which is not only morally wrong, but legally wrong.

Nintendo has the right to protect their IP and they have the right to make money.

Furthermore, I disagree in general that it's morally and legally correct to emulate something you purchased.

Canoe (their SNES emulator) is definitely their own creation, it's very limited and can mostly only run the games they've released with it.

I think it has some similar bugs to ZSNES, but that's just because they're both crappy low-accuracy emulators.

Correct me if I’m wrong, but wasn’t Nintendo caught using an open source emulator for the switch, without any sort of credit to the authors after suing?

Majesco Entertainment published some switch games made by Mistic Software, which used an open source emulator without credit and in violation of its license (and therefore were infringing copyright). Atari was somehow involved as well. Nintendo had no involvement, unless you consider them responsible for not doing a thorough enough license audit of every company that publishes Switch games or something.

You're probably thinking of this:

https://www.eurogamer.net/did-nintendo-download-a-mario-rom-...

I recall something like that when they released those mini consoles like the mini NES (NES Classic). But looking into it now, it seems that only used OSS software (linux, busy box, alsa, etc.).

No issue that you described comes from Nintendo. And you could have downloaded ~100 free games from the eShop.

https://www.dekudeals.com/games?filter%5Bprice_range%5D%5Bmi...

Don't forget that Nintendo put Gary Bowser -- a man in a wheelchair, with two kids -- in prison for a year. Now he owes 30% of his income to Nintendo for the rest of his life. He made Switch mod chips.

Until Nintendo walks that back, I will pirate all future nintendo games and donate the cover price to Bowser's gofundme.

“Walmart did a thing and I can’t perform basic product research before purchase and this is nintendos fault somehow”

good stuff champ.

Not that there aren't plenty of good reasons to hate Nintendo, but you're mad at them because Walmart committed fraud selling you one of their products, and then you didn't look up what something they sell does before you bought it and you're made it didn't live up to your unfounded expectations?

It's not like you can't buy games online through the Switch store, and I'm sure Walmart would have sold you games. It's also not as if all Nintendo consoles used to come with free games and they stopped doing that. Maybe for a special edition version, but not as a default.

Walmart has like the most lenient return policy imaginable (as you evidently found out). Why would you not have just returned your previously opened Switch at the regular returns counter?

Nintendo Online is something like $33/year where I live; Xbox Games Pass (the version with actual games) is $263.40 (the version with a much more limited subset of games is $155.40).

I assume the price difference is similar in the USA; the two products -- at least to me -- seem quite clearly different.

Sounds like you have an issue with Walmart. Why would Nintendo be at fault because you bought an opened package?

As for your other comment, you can buy a Switch bundled with games or without games. Looks like you either bought the standalone console or the person you claimed sold you the used Switch took the game.

and you're absolutely kidding yourself if you think any meaningful percentage own the game.

respectfully disagree. nintendo has fought hard to capture the casual/normie demographic and they have consistently sold more switches than M$ has sold xbox ones every month since launch.

switch emulation is alive and well but doesn't jeopardize their position as the non-techie's console of choice. therefore they have taken to only pursuing legal action when an emulator is being packaged up for the masses to one-click install on steam

When the game isn't be sold any more, along with the console, emulation makes sense.

Emulation makes sense since day one. Frankly, good emulation is straight up better than the console. Accuracy is high and you get a lot more features. Truth is they should have released the games in this format to begin with but they insist on creating little digital fiefdoms with "exclusives" and DRM instead.

If anything doesn't make sense it's all this copyright nonsense which should be abolished.

you're absolutely kidding yourself if you think any meaningful percentage own the game

Not really their problem. It's the players who are infringing copyright, not them.

The emulator also requires Nintendo data they're not actually allowed to ship

That's called adversarial interoperability and it's required for the system to function.

https://www.eff.org/deeplinks/2019/10/adversarial-interopera...

If anyone is to blame it's Nintendo for coming up with a system where it's impossible to not infringe on their precious "IP" while interoperating.

Just like Sega was blamed when it tried to work their trademarks into their "security systems" in order to deny their competitors their rights:

https://en.wikipedia.org/wiki/Sega_v._Accolade

The court's written opinion followed on October 20 and noted that the use of the software was non-exploitative, despite being commercial

and that the trademark infringement, being required by the TMSS for a Genesis game to run on the system, was inadvertently triggered by a fair use act and the fault of Sega for causing false labeling

for at least 2 years now has been more than good enough to run games of a current gen system

To be fair that's impressive but nothing new. I 'member running N64 games with my Voodoo card in 1999 when GameCube wouldn't be out for two more years: https://en.wikipedia.org/wiki/UltraHLE

Legally it doesn't really matter at all whether or not the console is currently commercialized, at least from precedents like Sony v. Connectix (Connectix was selling a commercial (literally in shelves) emulator directly competing with the PlayStation while it was being commercialized and won the lawsuit Sony filed against them)

So you played their game on an emulator, and you "would otherwise have really considered" paying for their products (but you didn't). How are they losing out by alienating you?

I've read rumors, and it seems very plausible, that Nintendo's next console might be able to play Switch games at higher resolution and/or framerate.

Emulators are a legal avenue.

My impression was that EFF and the like were bearish on 1201(f) because of that last part, "to the extent any such acts of identification and analysis do not constitute infringement under this title." and "to the extent that doing so does not constitute infringement under this title." because that essentially forecloses any practical application of 1201(f).

GitHub created this defense fund after they came after youtube-dl. Not very Micro$oft, but they will probably help when it comes to that, but so far they did not file for DMCA takedown in GitHub. Maybe they did and Gihub changed the rules and requires some court judgement to take things down first?

DeCSS was ruled to be a circumvention device. Yuzu will be treated the same.

People using such software without the intent of engaging in RE activities will not be granted the benefit these exceptions. You could legally create your own Switch emulator but distributing it to others outside the legal veil of a corporate entity will not fly.

I honestly cannot wrap my head around the need for an LLC. It's an open source project, why would you need a company?

Presumably this is a play to try and establish precedent.

Of course it's to establish precedent. They can't file a case against "Yuzu and any future Switch emulators that don't exist yet". But that doesn't mean that it means nothing in itself. A victory against an emulator would be somewhat of a deterrent and would likely reduce piracy somewhat, at least for a little while.

By ensuring there's no funding of the project, they can cripple it and ensure it will always be far behind the mainline product. It will also scare a lot of people off who don't want to risk getting wrapped up in a lawsuit for their weekend hobby

It's worse than bad, Nintendo's argument seems to boil down to "decryption = circumvention", even if you have a legit keys.prod file from your own system. The full text goes into detail about how Nintendo thinks that using a decrypted keys.prod file is circumventing their DRM.

There's so many second and third order consequences from a legal precedent for that it boggles the mind, and I'd hope that any judge that understood that should dismiss this lawsuit with prejudice. My fear is that it goes the other way and an injunction is successfully put in place against Yuzu.

They're crapping themselves because somebody has just released [1] a cartridge that lets you run "backups" stored on a SD card on an actual physical switch.

Each cart has a unique key though, so I imagine Nintendo will go on a big banning spree.

[1] https://migswitch.com/

I dont think any of these manufacturers develop nor support any emulator.

would it change if they were making less money? or emulating a previous generation? Or if that 30k was split between 100 devs and is basically a small tip per month instead of a very comfortable wage for a single dev?

I know how I feel about it - 1) they deserve every penny and 2) Nintendo needs to back off.

Personally I really don't get this outrage over emulators.

A huge chunk of the population can't afford Nintendo Switch or its expensively priced licenses. They turn to a zero-cost grey-market online. Nintendo wants to turn those people into paying customers?

Somebody who owns a Switch and buys games aren't going to stop paying so who is Nintendo really trying to deny?

How do we decide who gets to listen to a song and who doesn't on the internet where information constantly tries to reach homeostasis by becoming free and widely available? Capital?

I'm not sure I understand your point. As I understand it, Nintendo makes: 1) hardware, and 2) games. They are attempting to tie together the game and the hardware, so that if you buy the game, you also have to buy the hardware, in order to force people to buy more hardware, and not just buy the game and go to a competitor for the hardware.

But as often happens, a competitor came along - by producing an interoperable emulator which allows people to buy the game, but play it on different hardware.

I can understand why Nintendo would prefer not to have competitors, and how they might like to use their market power in the games space to crush competitors (FLOSS or not) in the hardware / emulation space, but they should expect to have to compete - that hardly seems like 'having a point'.

Apparently, under US law, an owner of a copy of software is allowed to make a copy if it is an essential step to running it on particular hardware, and that copy is not used for any other purpose: https://www.law.cornell.edu/uscode/text/17/117. So someone who purchases a copy of the game is allowed to copy it again for the purpose of emulating it.

And apparently, while the US has laws against manufacturing and making available circumvention technology, decrypting for the purpose of interoperability is explicitly exempted: https://www.law.cornell.edu/uscode/text/17/1201 17 USC s1201 (f)(3).

So using that law as a cudgel to prevent competitors from producing a compatible product is not really what the law was intended for, and I'd say this is bullying and abuse of process against a competitor.

The funny thing is that I really would've liked to own a switch but my absolute hatred of Nintendo has kept me from doing it

I’m sure there is no world in which you wouldn’t find an excuse to a justification to something for nothing.

I jailbroke the original switch with unpatched gpu exploit. I had also bought few games with it. I try to setup parental controls and all the sudden the device is banned. That made me mad. I bought the device. They require internet service for parental controls and set play time. Nintendo is a giant penuz. i hope their content gets pirated into oblivion after this scenario ( going after yuzu ).

Yep, this, they've been so anti-consumer for so long.

Oh, I didn't know you had to own a Switch. I thought you just had to own the game?

You need the decryption keys, and yuzu only gives you instructions on how to extract them from your own switch (and is careful to stress that point). But nothing stops you from searching for the keys on the web and getting them from there.

You don't. I'm not aware of a way an emulator could confirm you bought the files you give it to run.

I think lawyers in general are very often, yes, litigious. Perhaps you meant to say their employer and/or client, Nintendo, is notoriously litigious.

Awful for the emulation team? Yes.

Awful for the gaming community at large? Eh, Nintendo products are not as dominating as you think. It is only available in select countries and has a hundred million users at best. Compare that to PC and mobile gaming, it is almost negligible.

Though it would indeed be problematic if American courts manage to establish a precedent criminalizing emulators. That is indeed a real threat; American courts are not known for robustness or integrity.

Adversarial interoperability is at risk should the circumvention argument be entertained by the court. Don't want a competitor making something compatible even though they are legally allowed? Just protect it with "effective" measures and they aren't allowed to even try to be compatible?

The Switches system1-6 crypto schemes weren't terribly good. system5 even weakend it drammatically and trapdoored them into being permenently weaker. Problem is what constitutes an "effective" anti-circumvention according to the DMCA is not defined.

Same here… HN doing what it’s best at…

https://archive.is/LvxxW

They probably forsaw this coming and wanted protection in case of a lawsuit.

So when it gets sued you have some protection personally. But doing crime with the LLC probably "pierces the veil" to some extent. IANAL.

Why is that BS? It's true. It's not the only use of an emulator, but it's the primary use.

no, it's not. it has to match the switch hardware virtually and also whatever the switch os is.

It's not about the 16fps frame drops, it's about the experience. Enjoy IT.... or find us in COURT !

I suspect that the "Switch 2" is going to be like the GameCube -> Wii, where the hardware is backward compatible and largely just a faster version of the previous generation. Essentially being a suped-up Switch means Yuzu could immediately work much better with whatever they come out with next. I think that is why they are going after Yuzu now, to try and get ahead of another Dolphin situation occurring much earlier in the lifecycle. Should Nintendo get a favorable ruling, this would open a huge can of legal worms for the tech industry as a whole.

Deepweb GitHub is a fun concept. Sign me up.

DRM protecting yuzu itself?