Notoriously litigious Nintendo sues maker of Yuzu Switch emulator, alleges it facilitates ‘piracy at a colossal scale’

Nintendo's Breath of The Wild running with graphics mods (including ReShade) on an RTX 4090. Turns out Nintendo's not a fan.
Nintendo's Breath of The Wild running with graphics mods (including ReShade) on an RTX 4090. Turns out Nintendo's not a fan. (Image credit: Digital Dreams on YouTube)

Nintendo is suing the developers of the Yuzu Switch emulator, citing the fact that Legend of Zelda: Tears of the Kingdom was leaked prior to release and downloaded one million times, according to a legal document shared by Stephen Totilo on Twitter. The lawsuit lists "Tropic Haze LLC," the company who operates Yuzu and its Patreon page.

While Nintendo points toward the one million number as some kind of irreparable harm, it's important to note that Tears of the Kingdom still sold 20.28 million copies by the end of 2023. In the same span of time (about 7 months after launch), Breath of the Wild sold about 16 million copies on Switch. As always, equating every pirated download to a lost sale is something of a logical fallacy.

With this attack from Nintendo on the emulation and game preservation community, several questions have started to pop up. This isn't the first time Nintendo has taken action against an emulator — when Valve went out of its way to ask Nintendo if the Dolphin GameCube/Wii emulator should be allowed on Steam in May 2023, Nintendo quickly struck down the idea.

Nintendo may have been correct to do that, because while Dolphin still exists and Nintendo hasn't taken more direct action against it since, it seems that Dolphin's method of playing games requires a Nintendo cryptographic key to be built-in. Even former Dolphin dev Delroth stated in a Mastodon thread that Dolphin's distribution of the Wii's AES-128 Common Key might violate anti-circumvention provisions of the DMCA — though over a half-year later, no action has been taken on Dolphin outside of prevention of the Steam listing.

Nintendo has yet to take Dolphin to court, but that doesn't mean that it and other emulators won't be impacted by the upcoming Nintendo v. Tropic Haze LLC (Yuzu) court case.

From Nintendo's view, emulation has never been, and never will be, legal. Even if you legally purchased the game and painstakingly created an archival copy with your own console, Nintendo argues in this lawsuit, "Any copy [...] not on an authorized cartridge or console is an unauthorized copy and therefore infringing. [...] Nintendo has the right to decide whether or when to enter the market of games for platforms other than its own console."

Make no mistake: there is legal precedent that exists which defends emulators in their current state. The Gaming Historian's coverage of Sony's (unsuccessful) court cases against emulators is a good way to get caught up on the legal precedent here up to 2017. This is the first time in a while that an emulator has been taken to court, and it could very well set new legal precedent that puts the entire emulation scene at risk.

Speaking to Ars Technica, Attorney Jon Loiterman stated, "Nintendo wants to say that the license agreement for all users restricts their use of the game to only run on the Switch. 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."

Loss of Switch emulation as an option for legitimate owners could also mean a future of Nintendo gaming that is always firmly locked to whatever... let's call it "high-value" console hardware it has chosen to ship that generation. The Switch has operated since 2017 using the Nvidia Tegra X1 chipset that debuted in 2015, made for mobile devices and the Nvidia Shield.

While some truly impressive ports have been possible on the Switch hardware, some truly horrendous ones with sub-30 fps and sub-540p resolutions have been seen in action. And even some of Nintendo's most ambitious games — especially those in the Zelda series — struggle to run at a stable 30 fps on its own hardware, much less at a high resolution.

In any case, it looks like Nintendo doesn't care about legitimate users of emulation, and is hoping to use this court case to acquire enough evidence in discovery to prove that Yuzu is knowingly aiding and abetting piracy, despite advising users to extract keys from games they legally own from their own consoles.

With rumors of a more powerful Switch 2 right around the corner and Yuzu already able to emulate nearly the entire library, this move seems to border on spite, but could serve as a pre-emptive defense against the next generation of Nintendo emulation. That said, the open-source Ryujinx Switch emulator is currently unaffected, and Nintendo has yet to successfully change precedent in such a way that stops people from emulating the Switch today.

Even if the takedown is successful, the cat is long "out of the bag" when it comes to emulating the Switch and its library. That software is always going to be in circulation now, no matter what Nintendo does. However, the potential for this case to set new legal precedent could have a chilling effect on all future Nintendo emulation development, and perhaps give Nintendo ammunition to come after emulation as a whole — not just Yuzu.

  • blacknemesist
    The reason Nintendo took so long to take action is because they themselves have no idea what IPs they actually own since unless it says Mario it probably ain't theirs
    Reply
  • TerryLaze
    Admin said:
    In a typical Nintendo move against console emulation, Nintendo is suing the makers of the Yuzu Switch emulator — seeking damages and shutdown.

    Notoriously litigious Nintendo sues maker of Yuzu Switch emulator, alleges it facilitates ‘piracy at a colossal scale’ : Read more
    Just to clarify, nintendo does not move against emulators here, Yuzu is decrypting the games in real time which is basically real time cracking of the game.
    At least that's what nintendo tries to push through here.
    Yuzu unlawfully circumvents the technological measures on Nintendo Switch games and allows for the play of encrypted Nintendo Switch games on devices other than a Nintendo Switch. Yuzu does this by executing code necessary to defeat Nintendo’s many technological measures associated with its games, including code that decrypts the Nintendo Switch video game files immediately before and during runtime using an illegally-obtained
    copy of prod.keys
    Reply
  • YouFilthyHippo
    Nintendo is not going to win. Making copies of digital files that you already rightfully own is legal. Example: I go buy a music CD, pay for it with clean, legitimate money at a retail store, take home the CD clone the CD to blank CD, and store the original in a drawer, and just listen to the copy to keep the original in perfect condition. Making copies of prod.keys or dumping games is not illegal. You are just copying something you already own anyway. It's distributing them out that is illegal, something Yuzu devs have never done.

    Nintendo is suing the wrong people. Yuzu does not rip the prod.keys and does not include it, nor firmware, nor games in Yuzu. Its the end user that does. Yuzu in and of itself, released AS IS..... is completely 100% legal from the first line of code to the very last. Nintendo has done this before. It failed each and every time. This one will be no different.

    They are going after Yuzu because suing 30,000,000 end users and 30,000 ROM sites isn't viable. One problem: Yuzu hasn't done anything wrong. At some point, you have to think: Yuzu devs have done their homework. They have their own lawyers who in advance will make sure that Yuzu doesn't do anything wrong. If Yuzu was legally in the wrong, a lawyer for Yuzu dev would have told them by now.

    Yuzu devs have been prepared for this for all of time. They have always known this can happen. They are prepared. They will know what to do. They will be fine
    Reply
  • TerryLaze
    YouFilthyHippo said:
    Making copies of prod.keys or dumping games is not illegal. You are just copying something you already own anyway. It's distributing them out that is illegal, something Yuzu devs have never done.
    While you are allowed to make a backup of your game, firmware/os files do not belong to you, you do not own them or have any right to copy them or to use them out of context.
    Reply
  • YouFilthyHippo
    TerryLaze said:
    While you are allowed to make a backup of your game, firmware/os files do not belong to you, you do not own them or have any right to copy them or to use them out of context.
    When you purchase the Nintendo Switch, you purchase the whole thing, not just 10%, not half, not 90%, not 99.9999999%. You purchase the whole thing. The firmware/os files are part of the Nintendo switch, and it is sold as one unit, and one in the same. Therefore, it does belong to you. Yes, you do have the right to copy them for your own personal use.

    However, that is irrelevant anyway. Yuzu devs did neither one of those things. It is Yuzu that is being sued. Yuzu does not include OS/Firmware. So it's a moot point
    Reply
  • JTWrenn
    All this bs about rights of users after buying the software is really the harsh part of this whole thing. Nintendo is claiming a whole lot of rights to restrict usage for actual owners along with the piracy issue. I can't backup my software and play it on a steamdeck? I know a lot of people who did just that for their fanboy love of Zelda.

    In the end if buying isn't owning, is piracy really theft?

    This is getting ridiculous.
    Reply
  • mhmarefat
    TerryLaze said:
    While you are allowed to make a backup of your game, firmware/os files do not belong to you, you do not own them or have any right to copy them or to use them out of context.
    wait, who are you to tell me what I can or can't do with something I own? by what logic I do not "own" what I have purchased? Is taking a hammer and use it to rip my Nintendo to pieces out of context?
    Reply
  • TheyCallMeContra
    YouFilthyHippo said:
    Nintendo is not going to win. Making copies of digital files that you already rightfully own is legal. Example: I go buy a music CD, pay for it with clean, legitimate money at a retail store, take home the CD clone the CD to blank CD, and store the original in a drawer, and just listen to the copy to keep the original in perfect condition. Making copies of prod.keys or dumping games is not illegal. You are just copying something you already own anyway. It's distributing them out that is illegal, something Yuzu devs have never done.

    Nintendo is suing the wrong people. Yuzu does not rip the prod.keys and does not include it, nor firmware, nor games in Yuzu. Its the end user that does. Yuzu in and of itself, released AS IS..... is completely 100% legal from the first line of code to the very last. Nintendo has done this before. It failed each and every time. This one will be no different.

    They are going after Yuzu because suing 30,000,000 end users and 30,000 ROM sites isn't viable. One problem: Yuzu hasn't done anything wrong. At some point, you have to think: Yuzu devs have done their homework. They have their own lawyers who in advance will make sure that Yuzu doesn't do anything wrong. If Yuzu was legally in the wrong, a lawyer for Yuzu dev would have told them by now.

    Yuzu devs have been prepared for this for all of time. They have always known this can happen. They are prepared. They will know what to do. They will be fine

    I certainly hope Yuzu is as well-prepared as you seem to think they are.
    Reply
  • USAFRet
    mhmarefat said:
    wait, who are you to tell me what I can or can't do with something I own? by what logic I do not "own" what I have purchased? Is taking a hammer and use it to rip my Nintendo to pieces out of context?
    "owning" and "license to use" are two completely different things.

    Presumably you actually read the "license agreement" of the software?
    Reply
  • Notton
    USAFRet said:
    "owning" and "license to use" are two completely different things.

    Presumably you actually read the "license agreement" of the software?
    Quite a few of those license agreements are non-enforceable, depending on jurisdiction.
    AKA, Contractual Validity.
    For example, if there is a strict law for privacy rights in X jurisdiction, just because the contract says they can sell your private data, doesn't mean they can.
    Reply