Not being on Reddit anymore means I tend to miss big internet dramas as they are happening. This past month, under my very nose, Nintendo sued the creators of the Switch Emulator Yuzu (and the 3DS emulator Citra). Tropic Haze (the creators of Yuzu) have agreed to a settlement in which they pay $2 million to Nintendo and agree to cease all development of their emulators. They will also forfeit their domain, https://yuzu-emu.org/, to Nintendo.
Yuzu’s own statement on the matter admits their own guilt:
“We started the projects in good faith, out of passion for Nintendo and its consoles and games, and were not intending to cause harm. But we see now that because our projects can circumvent Nintendo’s technological protection measures and allow users to play games outside of authorized hardware, they have led to extensive piracy.”
– Yuzu Statement
On Nintendo’s side, they argue that the emulator is illegal because it can only be used alongside the presence of unauthorized cryptographic keys. In essence, they argue that there is no legal use case for Yuzu:
Developing or distributing software, including Yuzu, that in its ordinary course functions only when cryptographic keys are integrated without authorization, violates the Digital Millennium Copyright Act’s prohibition on trafficking in devices that circumvent effective technological measures, because the software is primarily designed for the purpose of circumventing technological measures.
– Nintendo Lawyer Speak
I won’t argue with the point that the Yuzu team overtly used their platform to promote piracy… I was able to play TOTK on my computer using someone else’s ROM dump within a week of the game’s official release! The Yuzu team probably made the bulk of their money (a mere $30,000 a year…) facilitating piracy, and I suspect the reason Yuzu caved so easily to a settlement was because Nintendo had a lot of evidence on them. The open promotion of digital piracy is not legal ground to win a lawsuit on.
That said, Nintendo’s assertion that the Yuzu Switch emulators is illegal because it can only be used by “circumventing technological measures” is an extremely concerning legal precedent to me. I strongly believe that consumers should have the right to use the products they buy in any way they see fit. If I own a Zelda catridge, I should have every right to tinker with the product and dump the software if I choose. The owner of a automobile is not barred from tinkering, modifying, and repairing their own vehicle– you own your car and can do whatever the hell you want with it. Owning video games should grant the same rights. If Nintendo will not provide an official avenue for dumping a ROM and playing Nintendo games on another piece of hardware, then users should legally have every right to pursue their own means of porting the work. The use of cryptographic keys to prevent users from copying and running software on anything but officially sanctioned hardware stifles innovation and personal freedom.
In Nintendo’s view, a person buying a physical game cartridge only owns a single license of the video game. The Digital Millennium Copyright Act allows developers to include legally binding means of locking down software through keys and other DRM tactics. These measures helps protect corporate profits while forcing users to engage rigidly with software on the company’s terms. But while I can re-download my rightfully paid for copies of Microsoft Word or Adobe Photoshop onto new computers (it would be absurd if you could only buy Photoshop for use on one device forever!), Nintendo games are locked to a cartridge that can be lost, stolen, or destroyed. Thanks to Nintendo’s DRM measures and hostile stance on emulation, I am not allowed to dump the cartridge onto my computer for the purposes of backing up and engaging with a product I have paid for. Do I own my Mario Maker cartridge? Or is the cartridge merely the physical marker of a one-time license to play? That is a bad precedent to set. When I spend $60 on a game, I expect to own the game. I am not a renting it indefinitely!
Could Yuzu have worked harder to ensure that users could only use products they are verified to own? Maybe so. Nintendo also could have taken the lead and created an API for exactly that purpose. They didn’t, though. Microsoft allows users to play Minecraft through user-created launchers and interfaces provided that these unofficial launchers verify through an official Microsoft login api. As a result of this open promotion of modification and iteration, Minecraft can be played on pretty much any device with a processor, from Android Phones to Nintendo Switches. Nintendo could offer the very same service to the creators of Nintendo emulators.
This will never happen because Nintendo wants everyone to play Nintendo games on official hardware that will eventually fall out of date and lose official support. Emulators ensure that regardless of the futurity of the creators, users can still preserve software and run it on a computer even after the official hardware it was designed to run on falls out of production. They don’t make GameCubes anymore, but I can still play Super Smash Brothers Melee on an emulator! In that same vein, my disc copy of Smash will eventually wear out, scratch, and break. But thanks to the independent work of fans online, the game has been uploaded to the internet so that it can continue to exist long after the original distribution media is corroded and gone.
Given that Nintendo has used user uploaded ROMs themselves to resell old Mario Bros games, the value of emulation is clear. Preserving software in ways that are accessible to everyone benefits even the original company that created the software! Alternatively, I think the fight for emulation is a broader fight for the rights of consumers to actually own the things we are buying. Why should Nintendo dictate to me how I must use their product after they sell it to me? Ford can’t tell me not to take apart the car I purchased. A vacuum cleaner company can’t jail me for ripping apart their mechanism and learning how it works. Innovation depends upon the right of individuals to tinker. Engineers, creators, and artists learn by dissecting the works that came before them. Video games should be no different. Such a transformative medium should not be locked down by licenses and premium hardware, and Nintendo can certainly do more to promote a modding/emulation environment that flourishes without piracy.
