Tag: nintendo

The makers of Switch emulator Yuzu say they will “consent to judgment in favor of Nintendo” to settle a major lawsuit filed by the console maker last week.

In a series of filings posted by the court Monday, the Yuzu developers agreed to pay $2.4 million in “monetary relief” and to cease “offering to the public, providing, marketing, advertising, promoting, selling, testing, hosting, cloning, distributing, or otherwise trafficking in Yuzu or any source code or features of Yuzu.”

In a statement posted Monday afternoon on the Yuzu Discord, the developers wrote that support for the emulator was ending “effective immediately,” along with support for 3DS emulator Citra (which shares many of the same developers):

We write today to inform you that yuzu and yuzu’s support of Citra are being discontinued, effective immediately.

Yuzu and its team have always been against piracy. We started the projects in good faith, out of passion for Nintendo and its consoles and games, and were not intending to cause harm. But we see now that because our projects can circumvent Nintendo’s technological protection measures and allow users to play games outside of authorized hardware, they have led to extensive piracy. In particular, we have been deeply disappointed when users have used our software to leak game content prior to its release and ruin the experience for legitimate purchasers and fans.

We have come to the decision that we cannot continue to allow this to occur. Piracy was never our intention, and we believe that piracy of video games and on video game consoles should end. Effective today, we will be pulling our code repositories offline, discontinuing our Patreon accounts and Discord servers, and, soon, shutting down our websites. We hope our actions will be a small step toward ending piracy of all creators’ works.

We Admit It

The proposed final judgment, which still has to be agreed to by the judge in the case, fully accepts Nintendo’s stated position that “Yuzu is primarily designed to circumvent [Nintendo’s copy protection] and play Nintendo Switch games” by “using unauthorized copies of Nintendo Switch cryptographic keys.”

Though the Yuzu software doesn’t itself include copies of those Nintendo Switch cryptographic keys, the proposed judgment notes that “in its ordinary course [Yuzu] functions only when cryptographic keys are integrated without authorization.” That means the software is “primarily designed for the purpose of circumventing technological measures” and in violation of the Digital Millennium Copyright Act, according to the proposed settlement.

While that admission doesn’t technically account for Yuzu’s ability to run a long list of Switch homebrew programs, proving that such homebrew was a significant part of the “ordinary course” of the average Yuzu user’s experience may have been an uphill battle in court. Nintendo argued in its lawsuit that “the vast majority of Yuzu users are using Yuzu to play downloaded pirated games in Yuzu,” a fact that could have played against the emulator maker at trial even if non-infringing uses for the emulator do exist.

Not Worth the Fight?

The Yuzu Patreon currently brings in about $30,000 a month, making a $2.4 million settlement a significant expense for Tropic Haze LLC, the US company set up to coordinate those Patreon donations for the emulator’s development. But in the proposed settlement, the Yuzu developers say this figure “bears a reasonable relationship to the range of damages and attorneys’ fees and full costs that the parties could have anticipated would be awarded at and following a trial of this action.”

The potential attorneys’ fees necessary to fully bring the Yuzu case to trial likely played a significant role in the quick settlement in this case. As attorney Jon Loiterman told Ars last week, “Unless Yuzu has very deep pockets, I think they’re likely to take [the emulator] down, and the software will live on but not be centrally distributed by Yuzu.”

Yuzu’s developers also faced some relatively distinct allegations of aiding and acknowledging potential Switch pirates through various communication channels, including bragging about successfully emulating leaked Switch games before their release date. “I’ve personally experienced how strict most emulator communities/discord servers/forums are regarding copyright and piracy, so it’s really weird to me that Yuzu devs wouldn’t be like that,” emulator developer Lycoder told Ars last week.

“Whether Yuzu can get tagged with [circumvention] simply by providing instructions and guidance and all the rest of it is, I think, the core issue in this case,” he continued.

In a response on the Yuzu Discord, the development team wrote, “We do not know anything other than the public filing, and we are not able to discuss the matter at this time.”

What About My Backup Copies?

In its lawsuit, Nintendo argues that “there is no lawful way to use Yuzu to play Nintendo Switch games.” But that statement has a few potential holes that could serve as possible defenses for the emulator maker.

For one, the US Copyright Office generally allows users to make copies of legitimately purchased software for archival purposes, with a few basic caveats. Accessing such personal archival copies would potentially be a legal use for an emulator like Yuzu.

Nintendo goes directly after this argument in its lawsuit, arguing that buying a Switch game only means you “have Nintendo’s authorization to play that single copy on an unmodified Nintendo Switch console.” Any other copy is, by definition, an “unauthorized copy,” Nintendo says, even if it’s made by the original purchaser for their own personal use.

What’s more, Nintendo argues that using Yuzu as a way to play legitimate Switch purchases on another platform (e.g., an Android device or Windows machine) is also forbidden. “Nintendo has the right to decide whether or when to enter the market of games for platforms other than its own console,” the company writes.

In this, Loiterman thinks Nintendo’s arguments probably go too far. “Nintendo wants to say that the license agreement for all users restricts their use of the game to only run on the Switch,” he told Ars. “That’s problematic because the 37 CFR § 201 includes a number of exceptions and limitations on how far-reaching and applicable licensing terms like that can be.”

Homebrew and Accessibility

Yuzu defenders could also point to the emulator’s ability to run a wide variety of homebrew Nintendo Switch games and software, ranging from weather-tracking apps to an obligatory Doom port. Running this software through Yuzu is a legitimate use that doesn’t require breaking Nintendo’s encryption or software copyrights.

In its lawsuit, though, Nintendo argues that “the vast majority of Yuzu users are using Yuzu to play downloaded pirated games in Yuzu.” For instance, the lawsuit points to data showing that leaked copies of The Legend of Zelda: Tears of the Kingdom were downloaded 1 million times in the week and a half before the game’s release, a time period that also saw “thousands of additional paid members” added to Yuzu’s Patreon. Yuzu is “secondarily liable” for “inducing” this kind of infringement, Nintendo argues.

Inducement arguments aside, the presence of some legal homebrew uses could help Yuzu here. “We have plenty of objects that can be used in either legal or illegal ways that are not illegal to own or use,” attorney and game industry analyst Mark Methenitis told Ars. “Lockpicks, for example, have perfectly legitimate use cases as well as illegal ones, and we don’t restrict ownership of lockpicks … But these are the balancing acts a finder of fact has to consider in the context of all of the arguments presented.”