> 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?