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Comment by Springtime | Hacker News Reader

> The legal document claims that over a million copies of last year's The Legend of Zelda: Tears of the Kingdom were downloaded prior to the game's official retail release. As a result, the company is now seeking damages and is demanding that the Yuzu emulator is shut down.

Quite the leap from existing as an emulator to inexplicably being held liable for some independent leak.

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When you file a lawsuit, you make it seem like the biggest thing since WW2, because it'll be cut down in court over time to a more reasonable level.

There's actually multiple arguments with zero proof there.

- they didn't prove that Yuzu contributed to piracy (and since the amount of piracy tools on the Switch itself that's far from obvious that Yuzu is a first choice)

- they didn't prove that the leak itself lead to a loss of revenue. And that's also very hard of an argument to make considering that this game was a huge commercial success.

Does loss of revenue matter at all? It feels like it should, but I had thought that it didn't matter in courts.

If you want to get a lot of money from the defendant, you usually have to prove damages.

From my podcast law degree, in civil action like this yes. To get standing you must show you were harmed in some way and that the court can remedy that harm. That is just one of many parts of the standing test that a federal court will apply.

https://en.wikipedia.org/wiki/Standing_(law)

> To get standing you must show you were harmed in some way and that the court can remedy that harm. That is just one of many parts of the standing test that a federal court will apply.

Not in copyright cases. You have to show harm for actual damages, but copyright has statutory damages: you only need to demonstrate a violation of the law (the copyright statutes) for damages [1]:

> In all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to enforce their exclusive rights.[35] However, while registration is not needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees.[48] (In the US, registering after an infringement only enables one to receive actual damages and lost profits.)

Statutory damages do not need to correspond to actual damages [2]:

> The charges allow copyright holders, who succeed with claims of infringement, to receive an amount of compensation per work (as opposed to compensation for losses, an account of profits or damages per infringing copy). Statutory damages can in some cases be significantly more than the actual damages suffered by the rightsholder or the profits of the infringer.

[1] https://en.wikipedia.org/wiki/Copyright#Registration

[2] https://en.wikipedia.org/wiki/Statutory_damages_for_copyrigh...

Are you aware of any precedent that "enabling" copyright infringement is tantamount to copyright infringement?

Copyright obviously protects against the retransmittal of the copyrighted work. If Yuzu hasn't done that, it isn't guilty of copyright infringement. Instead, Nintendo is arguing that if Yuzu didn't exist, fewer people would have committed copyright infringement. That in itself is not a copyright claim.

> Are you aware of any precedent that "enabling" copyright infringement is tantamount to copyright infringement?

Short answer, I'm not aware of precedent prohibiting emulation on the grounds of "enabling" copyright infringement the way an emulator does. But even in the US with fair use, I don't think emulation is always legal, and regardless Nintendo doesn't really need to demonstrate copyright infringement because simply suing would be enough to burden emulator developers with legal fees. See the UltraHLE emulator situation [5]. (Tangent: In Japan, there is no fair use, so I think the harm of emulation to Nintendo's sales would be enough to violate some kind of copyright law in Japan.)

The rest of this comment (the long answer-but-not-really-an-answer) is mostly spitballing on my part.

> Copyright obviously protects against the retransmittal of the copyrighted work. If Yuzu hasn't done that, it isn't guilty of copyright infringement. Instead, Nintendo is arguing that if Yuzu didn't exist, fewer people would have committed copyright infringement. That in itself is not a copyright claim.

Here is the closest situation I'm aware of. In the US, there were criminal and civil cases against Team Xecutor, who made devices and software capable of circumventing the Nintendo Switch's measures against running unauthorized copies of games [1]:

> In September 2020, Canadian national Gary Bowser and French national Max "MAXiMiLiEN" Louarn were arrested for designing and selling "circumvention devices", specifically products to circumvent Nintendo Switch copy protection, and were named, along with Chinese citizen Yuanning Chen, in a federal indictment filed in U.S. District Court in Seattle, WA on August 20, 2020.[3] Each of the three men named in the indictment faced 11 felony counts, including conspiracy to commit wire fraud, conspiracy to circumvent technological measures and to traffic in circumvention devices, trafficking in circumvention devices, and conspiracy to commit money laundering.[4] Bowser handled public relations for the group, which has been in operation since "at least" 2013.[1][5]

The legal basis of the anti-circumvention criminal cases seemed to have been based on DMCA 1201 [2] (a statute prohibiting circumvention of technical protection measures [3] against access to copyrighted digital data/works/software), even if the purpose of the circumvention is not for actual copyright infringement), but the judge and the US Department of Justice took the estimated financial damages very seriously [4]:

> The public face of a notorious video game piracy group was sentenced today to 40 months in prison for two federal felonies, announced U.S. Attorney Nick Brown. Gary Bowser, 52, a Canadian national of Santo Domingo, Dominican Republic, pleaded guilty in October 2021 to Conspiracy to Circumvent Technological Measures and to Traffic in Circumvention Devices, and Trafficking in Circumvention Devices. At the sentencing hearing U.S. District Judge Robert S. Lasnik said, “These are serious criminal offenses with real victims and harm to the community.”

> “This piracy scheme is estimated to have caused more than $65 million in losses to video game companies,” said U.S. Attorney Nick Brown. “But the damage goes beyond these businesses, harming video game developers and the small, creative studios whose products and hard work is essentially stolen when games are pirated.”

What if there's no circumvention involved, like in the case of an emulator? Then DMCA 1201 doesn't apply. However, what about the effect of emulation on Nintendo's sales? If you can't mod a Nintendo Switch you bought to play unauthorized copies of Switch games regardless of whether you bought authorized copies, then why should you be able to use an emulator, which might as well be a modded Nintendo Switch in terms of harm to Nintendo's revenue? is something I think Nintendo could convince courts about.

Nintendo definitely believes that emulation which affects Nintendo's revenue should be treated as copyright infringement. Nintendo threatened a lawsuit against UltraHLE, a Nintendo 64 emulator [5]:

> Nintendo's response and UltraHLE's discontinuation

> Also notable for its time, UltraHLE was capable of playing commercial games while the console was still commercially viable, a feat which was ultimately noticed by Nintendo. In February 1999, Nintendo began the process of filing a lawsuit against the emulator's authors, along with the website hosting the emulator.[6] Speaking to PC Zone, Nintendo representative Beth Llewellwyn commented: "Nintendo is very disturbed that RealityMan and Epsilon have widely distributed a product designed solely to play infringing copies of copyrighted works developed by Nintendo and its third-party licensees. We are taking measures to further protect and enforce our intellectual property rights which, of course, includes the bringing of legal action."[7] Despite this, UltraHLE had grown beyond either its authors' or Nintendo's control. Subsequently, Epsilon and RealityMan abandoned their pseudonyms and went silent.[8]

I don't think copyright lawsuits in the US give a defendant an early dismissal opportunity for demonstrating that the defendant's emulator doesn't actually facilitate copying in anyway, so all Nintendo needs to do is sue to bankrupt the defendant with legal fees or to incentivize the defendant to agree to a settlement.

[1] https://en.wikipedia.org/wiki/Team_Xecuter

[2] https://www.law.cornell.edu/uscode/text/17/1201

[3] https://en.wikipedia.org/wiki/Copy_protection

[4] https://www.justice.gov/usao-wdwa/pr/public-voice-and-princi...

[5] https://en.wikipedia.org/wiki/UltraHLE#Nintendo's_response_a...

If a device's only use involves copyright infringement, it's illegal to sell or distribute in the USA. That's how they went after cable descramblers and, less successfully, VCRs in the 80s.

Since getting actual Switch game data necessarily involves violating the DMCA, Nintendo's lawyers will have an easy time showing that the only way yuzu can be useful is if the user violates copyright law, thus making the emulator itself illegal.

That is if this even makes it to court.

The DMCA specifically has language about being entitled to circumvent a technological measure" for "the purpose of enabling interoperability of an independently created computer program". This language has never been tested in court but there is a compelling argument to be made.
The Copyright Office has become increasingly friendly to these types of arguments as well, though they have imposed some limitations on games hardware. The next set of rules/guidance they put out won't be until october (They do it every 3 years).

Yuzu isn't sold* as a product and unless Nintendo can convince the court that the mere act of emulation (or obtaining the console keys required to make Yuzu function in the first place) violate their copyright, then I don't see it personally. You can run code that isn't owned by Nintendo on a Switch. Maybe there is a reasonableness argument that people aren't using Yuzu to play Switch homebrew, but there is a homebrew scene around the Switch.

> Since getting actual Switch game data necessarily involves violating the DMCA,

None of that is related to Yuzu though, Yuzu can only play what you give it.

And no I disagree, the fastest way for me to deplop a switch game is to use an emulator such as Yuzu, it's a much faster feedback loop than a devkit and I'm sure there's a lot of indie games developped or tested this way. So there's also other purposes to this software.

> None of that is related to Yuzu though, Yuzu can only play what you give it.

But if it's only useful when you illegally infringe copyright, its creators could be found civilly liable for such violation.

I did some looking into this case. Nintendo's lawyers appear to be attempting a novel legal argument: they are composing the DMCA with the doctrine of contributory copyright infringement. Under the latter doctrine, purveyors of a device (or software) can be found liable for copyright infringement even if they didn't commit the infringement themselves, if it can be found that the device is only useful for such infringement. Where the DMCA comes in is, Nintendo is arguing that despite not being a copyright circumvention tool in its own right, Yuzu is only useful for playing games whose DRM has been circumvented; therefore distributing it is an offense of trafficking in circumvention technology under the DMCA. It's not really clear whether the courts will accept this interpretation, but if circumvention is "copyright infringement", then the doctrine of contributory infringement could well apply.

It tends not to matter in courts if using an emulator is better than using a devkit (personally I concede that it may well be, especially early in the development cycle). Because the devkit option is available to you provided you pay for a license, and because not paying for such a license is not a legitimate option for Switch development, the courts are not likely to look at Yuzu as legitimate software for non-infringing Switch development. There was that court case involving illegal DVD decryption where the judge, upon hearing the defendant argue that they just wanted to play DVDs on Linux, stated that that was not a legitimate reason for circumventing DVD encryption because they could have played those DVDs on a Windows machine.

It is also fully their fault the game was leaked early. They released the game carts to buyers too early, and their system5 crypto scheme was already broken by the time the game came out. Yuzu didn't break system5, nor do they ship the keys needed to decrypt the dumped game files. They did release patches which specifically fixed issues with Zelda, and that wasn't a good look legally - but it isn't illegal to fix inaccuracies with the software.

I have not heard of anything indicating they themselves released patches fixing issues with ToTK - only that other people made patches for that which the Yuzu team refused to accept until ToTK release. I don't see how random people making patches for an open source project should make the project liable for the existence of the patches.

That's a great clarification. I think you bring up a great point.

Not necessarily. It's fairly easy to prove that if the emulator did not exist, the leak would be fairly inconsequential; and considering how easy it is to show the percentage of pirating users versus legitimate users (probably 95%+), it's not a good look.

There's also the issue that, unlike prior emulators, Yuzu risks running afoul of DMCA anti-trafficking provisions for circumvention devices and software that uses circumvention devices. So, while per se emulating the Switch might be legal, decrypting the games may be illegal (as would software that is useless if it is unable to do that decryption).

Edit: Strongly recommend reading my follow up comment explaining historical precedent: https://news.ycombinator.com/item?id=39530558

> 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?

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.

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?

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.

> 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.

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.

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.

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.

> 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 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.

> 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.

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.

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.

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.

It's called contributory copyright infringement. The Supreme Court only ruled that the VCR was legal based on a very narrow use case: if a television broadcast aired once and only once, never to be seen again, and the user could not see it as scheduled, they were legally entitled to use a device to record the broadcast and watch it at a later time -- once, after which they would presumably have to destroy the recording. And there are legal experts who believe even that is a yard too far.

Nintendo's case is a lot more airtight. To play anything on yuzu, you have to defeat the encryption on Switch games, itself a felony DMCA violation (irrespective of how good or bad the encryption is). Therefore, yuzu can only be used to play pirated material, therefore it contributes to copyright infringement.

"But muh homebrew" -- people who want to develop for Switch can get a development license from Nintendo. The fact that this is an option would weaken developing for Switch as a legitimate use for yuzu.

> "But muh homebrew" -- people who want to develop for Switch can get a development license from Nintendo. The fact that this is an option would weaken developing for Switch as a legitimate use for yuzu.

Just because you can get a license from Nintendo doesn't mean the emulator isn't useful for development.

> It's called contributory copyright infringement. The Supreme Court only ruled that the VCR was legal based on a very narrow use case…

That 1984 Supreme Court decision was a 5–4 ruling. Can you imagine the deleterious effect on the home electronics industry if, in 1984, a single justice had voted the other way, and the VCR had been ruled an inherently infringing device?

Probably LaserDisc would have won, then.

> people who want to develop for Switch can get a development license from Nintendo

Licensed development only allows publishing Nintendo-approved games through Nintendo-licensed publishers who sell into Nintendo-approved channels, which the vast majority of stuff in the homebrew scene wouldn't qualify for.

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