https://www.polygon.com/24090351/nintendo-2-4-million-yuzu-switch-emulator-settlement-lawsuit
"Yuzu is a free Nintendo Switch emulator that was released in 2018 months after Nintendo launched the Nintendo Switch. It’s a piece of software that lets people play Nintendo Switch games on their computers or phones — including Tears of the Kingdom, which Nintendo cited in its lawsuit, saying Yuzu let people play leaked copies of the game early. Specifically, Nintendo said more than 1 million people played the game before the release date because of the leaked copies. Yuzu doesn’t offer pirated or leaked games itself, but Nintendo targeted the company because the emulator is one of the few ways to play those games."
"The Tears of the Kingdom publisher is known to be strict with its intellectual property. Nintendo’s won several lawsuits targeting pirated game sites like RomUniverse, where it was awarded more than $2 million in damages. Nintendo also notoriously went after an alleged Nintendo Switch hacker named Gary Bowser, who was arrested and charged for selling Switch hacks. Though he’s been released from prison, Bowser still owes Nintendo $10 million; he paid Nintendo $175 while in prison from money he earned working in the prison library and kitchen."
"The Nintendo and Yuzu lawsuit has ignited once again a debate on emulation — whether the act of emulation is inherently illegal. Of course, emulation fans don’t believe that: A lot of people see Yuzu and other emulators as an important tool for video game preservation. Nintendo, clearly, disagrees."
"Yuzu is a free Nintendo Switch emulator that was released in 2018 months after Nintendo launched the Nintendo Switch. It’s a piece of software that lets people play Nintendo Switch games on their computers or phones — including Tears of the Kingdom, which Nintendo cited in its lawsuit, saying Yuzu let people play leaked copies of the game early. Specifically, Nintendo said more than 1 million people played the game before the release date because of the leaked copies. Yuzu doesn’t offer pirated or leaked games itself, but Nintendo targeted the company because the emulator is one of the few ways to play those games."
"The Tears of the Kingdom publisher is known to be strict with its intellectual property. Nintendo’s won several lawsuits targeting pirated game sites like RomUniverse, where it was awarded more than $2 million in damages. Nintendo also notoriously went after an alleged Nintendo Switch hacker named Gary Bowser, who was arrested and charged for selling Switch hacks. Though he’s been released from prison, Bowser still owes Nintendo $10 million; he paid Nintendo $175 while in prison from money he earned working in the prison library and kitchen."
"The Nintendo and Yuzu lawsuit has ignited once again a debate on emulation — whether the act of emulation is inherently illegal. Of course, emulation fans don’t believe that: A lot of people see Yuzu and other emulators as an important tool for video game preservation. Nintendo, clearly, disagrees."
I maintain that the thing that mad them vulnerable to being sued was the Patreon and early access binaries. Even if someone could take the source code and compile it themselves, offering the binary only to those who paid arguably still makes for a paid service. It also inherently kills any anonymity because generally Someone has to hold your details and that Someone is not going to want to deal with the brunt of a company like Nintendo for you. They probably could've gotten away with it if they used crypto but that generally doesn't reflect pretty well on a project's legitimacy, especially nowadays.
In my opinion this doesn't set a precedent for unauthorised emulation in general, moreso one for unauthorised commercial emulation. So I definitely hope people that don't run their emulation projects in a scummy fashion aren't scared off by this.
Personally, I tend to stay away from consuming emulation of current systems as to avoid contributing to Poking the Beast, even if the Switch is essentially a 2014 smartphone. As minuscule as a portion it may be, Big Corpo is going to see any potential diminishing of their bottom line as an attack, Especially with their current generation of hardware.
With that said, the biggest casualty here in my opinion is Citra also being nuked since it was from the same developers as far as I can tell. For the Switch there's still the Ryujinx emulator, but I'm not sure if another mature 3DS emulator exists currently. Also unlike the Switch, which at its heart is just like any console with a single screen and a standard controller layout, the 3DS continues to have the whole two screens thing going on, making preservation of the experience less likely to occur in an official sense.
That is to say: this kinda blows.
In my opinion this doesn't set a precedent for unauthorised emulation in general, moreso one for unauthorised commercial emulation. So I definitely hope people that don't run their emulation projects in a scummy fashion aren't scared off by this.
Personally, I tend to stay away from consuming emulation of current systems as to avoid contributing to Poking the Beast, even if the Switch is essentially a 2014 smartphone. As minuscule as a portion it may be, Big Corpo is going to see any potential diminishing of their bottom line as an attack, Especially with their current generation of hardware.
With that said, the biggest casualty here in my opinion is Citra also being nuked since it was from the same developers as far as I can tell. For the Switch there's still the Ryujinx emulator, but I'm not sure if another mature 3DS emulator exists currently. Also unlike the Switch, which at its heart is just like any console with a single screen and a standard controller layout, the 3DS continues to have the whole two screens thing going on, making preservation of the experience less likely to occur in an official sense.
That is to say: this kinda blows.
That's one thing that people tend to be saying, but I'm not sure how much it really matters (granted, I also haven't followed this incident very closely). In particular, Nintendo's argument in the case is that simply in virtue of Yuzu being an emulator, it exists "primarily" to circumvent technological measures, and thus violates paragraph 2 of the relevant section of the DMCA. And most of the mention of Patreon in the complaint was either naming the site as another place users could download the emulator, or talking about the number of subscribers as evidence that many people were using and supporting Yuzu. That being said, the section on Tears of the Kingdom does mention Patreon arguing that, since the number of patrons increased when the leaks happened, this was evidence the primary purpose was circumventing copyright. But in the same section, they also argue the same based on the existence of forks and PRs made by users. So my concern here is that, though folding and forking out the money may have been a good decision for other reasons, people will again begin to drink the kool-aid on emulation being in violation of the DMCA, the result being a stifling of technological progress and a chilling effect on developers who want to study console emulation (the later provision of the section notwithstanding). And of course, this also applies to making copies of purchased games. That all being said, it does seem a pretty bad idea, especially for an open source project, to provide paid early access builds for other reasons
Yeah I would agree with it being less that it was the reason for them to sue but more so something that allowed them to do or made it worth their time more tham other projects. I think the exchange of money really did make them more vulnerable. Nintendo's stance here isn't new anyhow. People will definitely drink the Kool-Aid, but hopefully many of those that actually matter to the development of emulators will realise what this is, namely an attempt to instil upon emulation a similar taboo that people have when it comes to using a torrent client. Though I don't think they've attempted to go after individuals at all yet, but that's probably because that doesn't seem like a very possible thing to do.
Going after individuals is probably very difficult but Yuzu had another flaw which was apparently the emulator had telemetry by default (!!!) that uploaded the names and metadata of files launched on the emulator to their servers. This was a big mistake because Nintendo also cited it in the complaint as evidence people were playing TotK
The more I learn about this situation the more, the more it sounds like they grew a couple extra feet just to shoot those also.
i would like to point out that while it makes it harder for them to be seen as "good guys", monetizing has no impact on copyright/DMCA cases with only one exception being in a "fair use" case, which this isn't
a lot of people point out the patreon as being the killer, but i don't think it is.. rather it's the brazen way they acted like a corporation yet had little care about ensuring they stay squeaky clean, by for example giving people full game dumps and other such things, thinking that the closed doors of a discord channel would protect them against the "data gathering phase" of court cases, where a lot of confidentiality is broken
as an aside.....
i skimmed the court documents for a bit and in essence, Nintendo's case is "it allows people to play Switch games, but Switch games are encrypted, therefore being able to play them elsewhere is in violation of DMCA anti-circumvention law" which is a Big Fat Bag of Bollocks
nintendo likes making long-strung sentences in it like yapping about how switch titles are encrypted, then encrypted again, with encryption digital seal lock encryption lock seal codes title id code locker ultraseals, but in the end the big thing with those is that encryption is only engineered for preventing the Switch from playing software not authored by Nintendo. it has no means of protecting against piracy, as the key is the same on all Switch units, and it has no means of protecting against playing the game outside of a Switch, as the decryption is trivial to reimplement outside of one
how a court handles this case will be important to the concept of digital ownership and licensing of physical items as a whole -- can a corporation tell you it is ILLEGAL to read out the data on a cartridge? can a corporation force you into a license where you pay damages to them if you do? what if it was done by someone who never bought the device? would it need to be illegal to even give a Switch to someone else, for they won't be able to sign the license to disallow reverse engineering? similarly, can a corporation license a digital item (a binary string) to NOT be copied verbatim and used outside of its container? ... can a corporation own something as basic as a publicly visible decryption key, just for the fact it is hidden out of view?
it reminds me a bit of that one time when someone got into big trouble for telling their local govt (some county or smth) that everyone's SSNs were publicly inside of the document's HTML, just not visible without view-source/inspector. is that "hidden"? can a site mandate you to never ever look at its source, never ever use any sort of tool to look at its secrets?
these are serious questions that underpin this case as a whole. people talk a lot about how "yuzu had it coming" or "nintendo is evil" but it's important to not forget the consequences a case like this can have across ALL of technology
a lot of people point out the patreon as being the killer, but i don't think it is.. rather it's the brazen way they acted like a corporation yet had little care about ensuring they stay squeaky clean, by for example giving people full game dumps and other such things, thinking that the closed doors of a discord channel would protect them against the "data gathering phase" of court cases, where a lot of confidentiality is broken
as an aside.....
i skimmed the court documents for a bit and in essence, Nintendo's case is "it allows people to play Switch games, but Switch games are encrypted, therefore being able to play them elsewhere is in violation of DMCA anti-circumvention law" which is a Big Fat Bag of Bollocks
nintendo likes making long-strung sentences in it like yapping about how switch titles are encrypted, then encrypted again, with encryption digital seal lock encryption lock seal codes title id code locker ultraseals, but in the end the big thing with those is that encryption is only engineered for preventing the Switch from playing software not authored by Nintendo. it has no means of protecting against piracy, as the key is the same on all Switch units, and it has no means of protecting against playing the game outside of a Switch, as the decryption is trivial to reimplement outside of one
how a court handles this case will be important to the concept of digital ownership and licensing of physical items as a whole -- can a corporation tell you it is ILLEGAL to read out the data on a cartridge? can a corporation force you into a license where you pay damages to them if you do? what if it was done by someone who never bought the device? would it need to be illegal to even give a Switch to someone else, for they won't be able to sign the license to disallow reverse engineering? similarly, can a corporation license a digital item (a binary string) to NOT be copied verbatim and used outside of its container? ... can a corporation own something as basic as a publicly visible decryption key, just for the fact it is hidden out of view?
it reminds me a bit of that one time when someone got into big trouble for telling their local govt (some county or smth) that everyone's SSNs were publicly inside of the document's HTML, just not visible without view-source/inspector. is that "hidden"? can a site mandate you to never ever look at its source, never ever use any sort of tool to look at its secrets?
these are serious questions that underpin this case as a whole. people talk a lot about how "yuzu had it coming" or "nintendo is evil" but it's important to not forget the consequences a case like this can have across ALL of technology
[disclaimer: non-american retard speaking about american law]
if i understand it correctly, it's not a court ruling but a settlement, so it doesnt set Precent in the legal sense. you can get away with a lot in a filing like that because there has been no case yet to discuss if/how wrong it is, so you can't refer to it in a further lawsuit. of course it has the usual chilling effects, but while it might scare people this can't be used to sue people on the basis of emulation == circumvention == murder. there's always good ol' Sony v Bleem for defense... it's just sad that they decided not to fight and to roll over, but that's how lawfare is
if i understand it correctly, it's not a court ruling but a settlement, so it doesnt set Precent in the legal sense. you can get away with a lot in a filing like that because there has been no case yet to discuss if/how wrong it is, so you can't refer to it in a further lawsuit. of course it has the usual chilling effects, but while it might scare people this can't be used to sue people on the basis of emulation == circumvention == murder. there's always good ol' Sony v Bleem for defense... it's just sad that they decided not to fight and to roll over, but that's how lawfare is
Indeed. Recall that in the relevant definitions provided by the DMCA, a technological measure merely constitutes anything which, "...in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." Notice that this could be something as simple as applying a caesarean cipher. Or even worse, in the case of (before the passing of the DMCA) non-macrovision supporting DVRs, just taking the as-is signal and sending it to the TV with auto gain control turned off. So applying that to a post-DMCA DVR, say one built in some place where the DMCA is not law and without the macrovision technology, an ordinary person circumvents a technological measure simply by playing the signal as-is without any modification or decoding. This gets at an inherent weakness of the DMCA's construction. However much more distressing is the degree to which this limits our technological freedom. The DMCA defines circumvention as a tortious act even when no copyright infringement actually occurs. This means (for instance) that signing homebrew on an old device with known keys, on the most liberal reading, constitutes circumvention (even though the homebrew is not a copyrighted work) merely because the device's reading of the signed data constitutes a technological measure. The copyright law, which has always been applied liberally to favour IP holders, becomes a new legal fiction (in the words of Bentham's famous critique of Common Law) where imaginary damages are manufactured and restitution is demanded by courts for harm never perpetrated.
Edit: Szy's post was made before I finished mine
It's not a legal precedent under American Common Law, and the Bleem case is very interesting to investigate in its own right and the arguments in favour of Bleem are generally pretty strong. Of course, the settlement is not a proper legal precedent but this is not about achieving a better understanding of the law which Nintendo could give a flying f--- about. This is about stamping out anyone who uses Nintendo's technology without maximizing their corporate profit. That's why I said it's a kind of kool-aid. The average person will see a case like this and think "Well I don't want to end up like Bowser, paying 25% of my salaries for life to Nintendo" and desist from running innocent computer software which does no harm in principle to Nintendo or anyone else.
Edit: Szy's post was made before I finished mine
It's not a legal precedent under American Common Law, and the Bleem case is very interesting to investigate in its own right and the arguments in favour of Bleem are generally pretty strong. Of course, the settlement is not a proper legal precedent but this is not about achieving a better understanding of the law which Nintendo could give a flying f--- about. This is about stamping out anyone who uses Nintendo's technology without maximizing their corporate profit. That's why I said it's a kind of kool-aid. The average person will see a case like this and think "Well I don't want to end up like Bowser, paying 25% of my salaries for life to Nintendo" and desist from running innocent computer software which does no harm in principle to Nintendo or anyone else.
Seems the scare tactics are working! The developer of the FBI app for 3DS, a tool that allowed to install .cia package files, nuked their entire Github account, seemingly willingly without direct pressure. According to a GBAtemp thread, they had also contributed to Citra before, which was probably the reason for going nuclear. "Luckily," FBI has been considered feature complete since 2020 and the source code had been in an archived state since, but I have not seen anyone mention anything about other projects or whether the developer was still otherwise active. Pretty scary considering how integral FBI is to the 3DS homebrewing experience.
https://gbatemp.net/threads/3ds-homebrew-tool-fbi-title-manager-removed-from-github.650200/
https://gbatemp.net/threads/3ds-homebrew-tool-fbi-title-manager-removed-from-github.650200/