Nintendo Suing Creators of Switch Emulator Yuzu
Nintendo is taking the Yuzu creators to court, alleging that the emulator illegally circumvents software encryption.
Nintendo’s legal team is coming for Yuzu, sending ripples across the emulation scene.
As revealed by a U.S. court filing (posted to social media by games journalist Stephen Totilo), Nintendo of America is suing the makers of the popular Switch emulation software, Tropic Haze LLC. The suit was filed in the U.S. District Court in Rhode Island.
Nintendo alleges that Yuzu’s creators are “facilitating piracy at a colossal scale,” and have deliberately circumventing Nintendo’s software encryption for its flagship gaming device, in violation of the 1998 Digital Millennium Copyright Act (DMCA).
Historically, Nintendo has been aggressively litigious against actors in the emulation space. But the ongoing existence of multiple emulators for the NES, Game Boy, Game Cube, Wii, and other systems reflects the reality of the U.S. legal system, which has offered a measure of protection to both software developers and the holders of ROMs (game files).
In the first case, emulation software developers have found a measure of legal protection when they do not directly violate copyright by making use of a company’s intellectual property (such as the code needed to decode or run a game). Developers of modern emulators, including Yuzu, reverse engineer the inner workings of a gaming console and build their software from the ground up — and studiously avoid using other companies’ code.
In those cases, companies like Nintendo cannot claim copyright violations — only that a developer figured out how to circumvent a proprietary authentication system. In this regard, this week’s legal filing over-reaches in Nintendo’s claim that emulation software “allows users to unlawfully play pirated games.” Emulation software, in fact, also allows users to play perfectly legally copies of games. Nintendo itself uses software emulation in its products, including to enable its customers to play retro games via the Nintendo Switch Online subscription service.
Circumventing Encryption
The DMCA complicated this legal safe space, however. U.S. lawmakers included not only strong copyright protections for the digital age but also made it illegal to circumvent encryption systems such as DRM locks.
Nintendo says that this is precisely what Yuzu’s makers have done. In order to play games the software requires decryption keys, which the emulator does not provide but requires that users provide themselves. While these keys could be legally obtained from a person’s own Switch with enough know-how, in the interest of expediency many users simply download them from the Internet.
This particular claim, then, is not so much that Yuzu’s creators are breaking the law (violating copyright, or circumventing encryption) but facilitating other people to do these things on a large scale. This — Yuzu’s culpability in how its users make use of its software — seems to be the grounds on which this case will ultimately be decided.
While Yuzu is not sold to end users for a profit Nintendo’s filing also points to the Patreon account used to support the project’s development, suggesting that Tropic Haze has made tens of thousands of dollars from those chipping in to support development.
Legal Copies
As to the possession of ROMs ripped from original cartridges and discs, U.S. copyright law is somewhat grey — at least insofar as there is little legal precedence that is decisive here. The distribution (and especially the sale) of ROMs is a clear violation of copyright, though the end-user’s possession of those files is not necessarily so. Courts have ruled that customers have the right to make backup copies of games, in part because the long-term viability of hardware is something of an unknown.
Certain parties, including the Internet Archive, have also been granted exceptions to the DMCA for the purpose of preserving games. Some precedent suggests that these parties can also make games available where they otherwise would not be accessible — including when the original hardware and cartridges are no longer readily available for sale.
Tears of the Pirates
Nintendo’s filing goes so far as to cite a Yuzu piracy subreddit, which is not affiliated with Yuzu and its developers, as proof of pirates’ widespread use of Yuzu and encouragement of others to do the same.
Nintendo also cites the online leak of 2023’s The Legend of Zelda: Tears of the Kingdom, which it says was made available on piracy websites a week and a half prior to Nintendo’s release date and was downloaded from piracy sites more than 1 million times. According to Nintendo, Yuzu is implicated in this copyright violation simply by virtue of the fact that the leaked game could be played on its software. It calls Tropic Haze “secondarily liable for the infringement committed by the users to whom it distributes Yuzu.”
Now we’re not lawyers here at Retro Dock, but that secondary liability sounds a lot like Nintendo’s description of something it wishes was illegal. By this logic one could also argue that Microsoft is facilitating piracy in its creation of the Edge browser, Google by maintaining a freely accessible search engine, and Lenovo by manufacturing computers used to access pirated ROM sites.
Software emulators are much closer to the legally disputed questions here, of course. But to win a judgment against the makers of Yuzu by showing criminal liability, Nintendo will have a lot to prove in a court of law.
