> Not necessarily. It's fairly easy to prove that if the emulator did not exist, the leak would be fairly inconsequential…

Well, no. Pirated Switch games can be played on a hacked Switch or a flashcart with no emulation necessary. Common sense suggests emulation would be significantly more common, but can Nintendo prove that in court, or prove that the leak wouldn’t have happened without Yuzu’s existence?

> Common sense suggests emulation would be significantly more common, but can Nintendo prove that in court

Nintendo is making that argument on the basis that Yuzu's Patreon income skyrocketed when TOTK leaked online.

https://graphtreon.com/creator/yuzuteam

It checks out, TOTK leaked on May 1st 2023 and Yuzus monthly income rose from $19k to $45k throughout May, having never broken $25k previously.

I'm confused as to how or why the Yuzu team would be held liable for this. Is it their responsibility to ensure that people don't donate money to them if the timing of that donation coincides with an unrelated leak of Nintendo's IP? If emulation is allowed and the Yuzu team itself isn't engaging in the promotion of piracy, I don't see what the case is here.

At the time Zelda leaked, it didn't work correctly in the release version of Yuzu. The lawsuit claims that the Yuzu team released a patched version that fixed the issue before the game's official retail launch date, but they have some sort of exclusivity period (looks like one week as far as I can tell) where new releases are exclusive to their Patreon before they become freely available. Nintendo is arguing that the large boost in Patreon subscribers was due to people wanting to get access to the patch so they could play Zelda early.

I think this would be a big issue for them if they specifically marketed it as "the Zelda fix" or insinuated that the only purpose of that update was to make this leaked game playable. Otherwise, they could just say that updates address the dissimilarities between the Switch hardware and the emulator. How can Nintendo prove ill intent here?

They (publicly) blocked discussion of TOTK fixes until the game's release day, but that's still 0th hour and any build to include the fix would have been early access for whatever the ea period is: https://github.com/yuzu-emu/yuzu/issues/10226#issuecomment-1...

Prescient comment marked as off-topic: https://github.com/yuzu-emu/yuzu/pull/10234#issuecomment-154...

That's an interesting argument, but I'm not sure it'll hold water with the judge unless they can't show such arrangements are very common with donation-funded software and was in place well before this leak, e.g. yes, we made money off this leak, but not because we designed the model to profit off people wanting to pirate/cause loss of sales, it's just how this has always worked.

We'll see. I'm not really sure there's anything they could have done better in that case as a positive defense if they had this in mind, though - like, releasing it not behind a timegate paywall could be an argument for actively destroy game sales even more, by that logic, and actively waiting until post-launch to release it could be argued to be around trying to extract more money from people to focus on it more.

Ouch, releasing patch before official launch sort of proves they pirated the game themselves, which somewhat undermines defense that they don't encourage piracy.

Not necessarily. I don't know the context, but bugs/issues reported from users may have been sufficient to patch their code without touching the ROM themselves.

If you read their writeup about fixing the game, the issues appear to stem from it heavily using a texture format that most GPUs don't support natively and almost no games having done much with that texture format before, so losslessly reencoding them was eating truly astonishing amounts of VRAM to avoid load time issues, and they reworked a bunch of memory management things to make it playable without 12G+ of VRAM.

I don't know if there were any other issues, but at least on that one, it doesn't seem like they needed deep knowledge of the game to try reworking it.

This feels similar to arguing that the Flipper Zero is a car theft tool because people went out and bought one after a video explaining how to use it to break some common car's lock was posted.

I mean, yes, they presumably turned a larger profit correlated to people going and buying it for something illegal, but it's not solely or even primarily used for that, people would be doing this without it, and they didn't have any involvement or encouragement that people do anything criminal with it.

You can prove irrelevant correlation. They weren't even paid for TOTK. The fact that users may have intended to play TOTK is something Yuzu had no control over.

Nintendo can't prove the leak wouldn't have happened without Yuzu. But they don't have to. They can simply show that Yuzu made it infinitely worse. Also, suing Yuzu does not preclude suing emulator makers or flashcart makers - they can all be sued as they all have culpability.

With apologies for the pedantry, they didn't make it _infinitely_ worse. They may have made it _significantly_ worse.

What do you mean they just need to show that it made it worse ? What are you basing that on?

I don't know of any similar cases where an emulator or say, a video player (for example Kodi) was held liable for increasing demand?

One thing to take into account is that civil trials don't require the absolute highest standards of proof, such as proof beyond a reasonable doubt. Usually much lower evidentiary standards such as "preponderance of the evidence" and other malarky.

So can companies of leaved PC games sue nvidia or windows?

The law doesn't work on strict abstract principles. Windows has a million uses of which piracy is just one. Yuzu has two uses (playing legitimate backups and pirated backups), of which Nintendo may successfully argue, both are piracy (due to the circumvention of encryption in both cases). In which case, the only possible use in 99.9%+ of cases... is for illegal activity.

I don't think it's likely that software developers can be sued on the grounds of "some people use it for illegal activity". Can IP rights holders sue any torrent tracker on that basis? Not to mention that playing backups of your own games is explicitly legal in many places, and I'd be shocked if it isn't in the US. Lastly, one can make an argument that the purpose of Yuzu isn't playing "Switch games", but emulating the Switch hardware stack, which is legal. For example, writing your own Switch homebrew and running it on Yuzu is permitted.

> Yuzu has two uses (playing legitimate backups and pirated backups)

And maybe for developing homebrew games?

> It's fairly easy to prove that if the emulator did not exist, the leak would be fairly inconsequential

That. Literally doesn't make any logical sense. That's like arguing that if computers didn't exist, the leak would be fairly inconsequential ... or if electricity didn't exist, the leak would be fairly inconsequential.

Logical sense? I can't really just play the pirated game on my home electricity. Just like you can't sue the road when a car runs you down.

Well, let me put it this way. Why don't they sue Dell then? If Dell computers didn't exist, pirated games couldn't be played! Or sue themselves, because if hacked Switches didn't exist, pirated games couldn't be played!

I really can't just play the pirate game on a software emulator either. It needs an operating system to run on, hardware to run the operating system on, etc.

Of course, it doesn't make sense. But Nintendo has infinite money and infinite lawyers compared to these people. That means they can do whatever they want with the law.

That's when you go to the judge and ask for a summary dismissal on the grounds that it is ridiculous (they should be suing the power companies instead!). Maybe they say yes and you walk away.

I'd say most piracy is people with an actual console that they have modded to load pirated games.

Impossible to say.

Downloading yuzu and watching a YouTube video to get roms going is easier than obtaining a modded switch, that one is certain.

> unlike prior emulators, Yuzu risks running afoul of DMCA anti-trafficking provisions for circumvention devices and software that uses circumvention devices

This is interesting, it'd be great to have a link to explain this matter more deeply.

Sure. Just look up the DeCSS controversy which got the creator of a DVD ripping software arrested and barely avoiding extradition, or the 09 F9 controversy where the MPAA attempted to censor a number from the internet.

This provision in the DMCA has been most often used against developers of unauthorized DVD copying software, Blu-ray copying software, etc; and the force of the legal argument has been well proven previously. It nearly killed RealPlayer when they made unauthorized software for DVD playback.

You can also see this law invoked in Apple v Psystar; when Apple sued Psystar for circumventing protections in macOS to allow running macOS on non-Apple hardware. That lawsuit was dragged all the way to the final appeal to SCOTUS - and Psystar was shredded the whole way. Expect Apple v Psystar to come up in a Nintendo vs Yuzu lawsuit; because running macOS on unapproved hardware sounds awfully similar to running games on unapproved hardware.

If Nintendo were to succeed invoking it here - emulation would be legal. Decrypting games would be illegal. Consoles before, say, the Wii (IIRC) would be free to emulate due to not being encrypted - but newer games, being encrypted, would be off-limits just like DVDs.

I wonder if it would be possible to develop a Switch emulator without the ability to decrypt any games. Users would be expected to bring already-decrypted games, which they could decrypt via an "unrelated" program.

You already have to provide your own encryption keys to the emulator.

Yes, but then it (presumably) decrypts the games for you, which could violate the DMCA.

That was one of the few times, when I can look back and feel like the user has won. It has been something of a steady decline since.

I would love for some clear indication that we have some digital rights left, but I am not certain the same reaction would not be possible to be replicated today.

There is some overlap with that case, but also some major differences. Psystar was distributing computers with a modified version of Mac OS X preinstalled, whereas Yuzu is not modifying or distributing any Nintendo-copyrighted materials. However, Psystar was also charged with violating DMCA section 1201(a), the section dealing with creating copyright circumvention devices, and Yuzu could potentially be found in violation of that.

However, Yuzu requires that you bring your own decryption keys obtained from your own Switch device; it cannot circumvent copy protections without that. The only circumvention code included in Yuzu is basically just standard 128-bit XTS-AES decryption code; it seems like a ruling that makes that code illegal to distribute would be a bad idea.

Psystar order granting permanent injunction: http://www.groklaw.net/pdf2/Psystar-242.pdf

DMCA 1201(a): https://www.law.cornell.edu/uscode/text/17/1201

Yuzu's crypto code: https://github.com/yuzu-emu/yuzu/tree/master/src/core/crypto

There are other emulators besides Yuzu and they would still exist if Yuzu didn't.

I mean, the switch has been hacked to hell and back and is more than capable of playing pirated games without any emulators. It isn't necessarily easy to show stats on pirating users since they obviously work to cloak that behavior from Nintendo.