Nintendo is suing the creators of Switch emulator Yuzu

Interesting development.
While I agree emulators should exist, it is fishy how whenever a copy breaks street date, it just so happens that the person who gets it also happens to be someone who has the ability and volition to rip the game and distribute it before release for everyone who uses this great tool known as emulation that is only for purely archival purposes.

Whatever the intention, it's clear there's a large subsection of people using it for illegal purposes. I don't want emulation options to disappear. But if TotK was downloaded a whopping 1 million times before release, it's not hard to see why Nintendo doesn't like emulation enough to the point they are taking legal action.

Hmm, usually the timing for nintendo suing is around when they have new software/hardware in a similar enviroment releasing, so I think maybe we should expect the next console to be able to emulate or run Switch games.

Bit late for that, Nintendo. We're only nearing the tail end of the Switch's lifespan...

Even then, I doubt this'll go anywhere. There's already precedent of emulators being ruled as legal (the bleem! case), so Nintendo doesn't really have a leg to stand on here.

I feel like if Nintendo wins, this could set a bad precedent where most emulators are deemed illegal. I don't believe Nintendo has a legal case here, but they might win just through sheer money.

I think this is a very strong case.

A lot of discourse online seems to be missing the crux of Nintendo's argument; which they argue is that Yuzu allows people to play pre-loaded, encrypted copies of their games, thus is breaking/circumventing their copyright protection.

Everything else is background material to that focal point.

One thing not mentioned is that Yuzu saw an increase of Patreon support during the TotK preleak. So while Yuzu may not have hosted any pirated games, they still profited from them. This may give some pause to other emulators that have crowdfunding support.

Emulators may be protected, but profiting off the copyrights of others, not so much.

That's not the question of the argument. The question is how does Yuzu allow pre-loaded copies of Switch games from the eShop to be played without the day 1 decryption?

There's 4 possible options:

1. Per Nintendo's allegation detailed in the docket, distribution of stolen/pirated prod.keys files. This would naturally be actionable and a very solid case if Nintendo proves this to be the case.

2. Users harvesting their own prod.keys from their console - this is actually a right enshrined within US copyright law and situationally on a state-by-state basis when it comes to right-to-repair laws (Who owns a device you buy? Nintendo, or you?). Nintendo's argument in this docket argues that consumers don't own their Switches in their entirety through points 42-43 on the docket.

3. Reverse engineering an AES128 key. Plausible, with enough compute and entirely legal. It's an old standard and Nintendo can't easily change this without a hardware revision.

4. Yuzu broke the AES128 cypher. Incredibly unlikely as this would be headline news on every cybersecurity outlet.

So having read the docket, I think this boils down to 4 main arguments that this case will hinge on:

1. The use of an emulator is unlawful regardless of origin of the software. I personally don't see this flying, Nintendo doesn't mention here that they package and sell emulators in a subscription service. (point 2 on the docket). They also don't mention previous emulation-related cases that lost and enshrined rights to emulation. (Sony vs Bleem, Sony vs Connectix. They also don't mention literally trillion-dollar ecosystems that are solely rooted in emulation. (Apple's entire platform emulating Intel's proprietary platform, Microsoft open-sourcing and developing the same emulator for Windows)

2. That the cryptographic prod.keys required to unlock games are illegally obtained. Nintendo's argument is that the only way this can be obtained is illegally (Point 5) yet also explains Yuzu guides users through obtaining their own (Point 41-43). Nintendo's algorithm here is older and no longer recommended for common use.

3. Nintendo alleges that customers don't have rights to their own systems, and that any modifications are unlawful (Points 3-6, 9, 44-49). This is a hot button topic in the right-to-repair industry right now that even Apple is caving to - they never litigated it, instead relying on political lobbying, however have recently lost the fight and have relented.

4. Backing up your own games is illegal. This flies again US Copyright Law section 117, which outright enshrines it as a right for consumers.

5. Because pirates use Yuzu, that Yuzu's developers are responsible for piracy. I really don't see a US court going for this - it's a big deal in the gun and car industry that manufacturers have zero responsibility or liability when it comes to their products, and there has been literally billions of dollars poured into political campaigns to guarantee this never changes.

So we're going to see a few hot button questions potentially answered:
1. Can user back their own games up? If they can, can they play them through alternate means?
2. Does the manufacturer of a product have responsibility for the use of said product?
3. Are users allowed to harvest their own Switch keys for decrypting their own backups?

My guess here is Nintendo wants to fish for a settlement that's out of court and undisclosed and the problem can go away, and the "Emulation bad" line can be parroted evermore. What they probably do not want is a precedent-setting loss here that'll further enshrine rights to emulation - that's usually the way these court cases have been going and politically, the direction the US is heading. Right to repair groups are already all over this accusing Nintendo of being Apple-like in their "You do not own devices or games you buy" attitude they're presenting here.

What's going to utterly doom Yuzu will be any hint at all at the distribution of any stolen code or keys from Nintendo. That's an absolute no-no. If it's truly all reverse engineered and all they do is facilitate users doing it (Key harvesting, backing up games) themselves, then I don't see Yuzu losing this one.

It's going to be an interesting case regardless.

Wish Ninte do would just do what Microsoft and Sony does and port thier games to PC. I'd buy them twice

If it's illegal then don't break the law. Emulators should only be used when there is no other option or a game is crazy expensive.