Nintendo vs Yuzu + Emulation vs Preservation

#1

Ref:

I haven’t been following this one as much as a lot of people, but I’m kind of curious as to what some of you guys think about it since gaming seems to be a common ‘side room’ interest over here. Plus, emulation itself has become a legitimate medium for pretty much anyone who enjoys retro games from time to time and doesn’t want to hoard a huge collection of consoles and wires.

Obviously blatant piracy could choke the life out a company like Nintendo and I think most of us would agree that that’s detrimental (not to mention, most people in first-world countries are willing to pay whatever cost is needed for a decent version of a game), but something like this lawsuit could send shockwaves throughout the emulation scene and deter would-be emulator developers from even getting started on such a project. This makes me think that at least in the future, when Nintendo inevitably goes, “Fuck you guys, the store is closing!” there could potentially be a lot of gems slipping through the cracks.

(Most of the ‘games’ I ‘play’ on there are just DAWs and game engines, so losing access to the more obscure stuff at any point in the future would be a pretty big loss, depending on the state of the system at that point in time)

Personally, I own a switch and I’d never need to emulate anything (not to mention that their compatibility list still sucks), but I feel like the development of Yuzu (or other emulators) was a necessary ‘evil’ that could have been allowed to exist, since it barely even paralleled the hardware and again, most people in developed countries would much rather just have the real thing instead of wading through a shoddy compatibility list and hoping for the best. Typically, emulation only really gets good well after a system becomes obsolete, and the circle of life continues. (Saturn still sucks, for example, but they’re working on it!)

It’s weird to think that Nintendo would even be threatened by this, or that they felt the need to reclaim their IP with something (emulated Nintendo systems, at least) that technically existed in some form or another since the 90s.

Any thoughts on this one? I’m pretty bummed, honestly

#2

Emulation lives in an interesting legal space. I followed this case a little more closely and my understanding of where the real legal infringement was, was that it didn’t have to do with the emulation itself (while Nintendo feels any Nintendo emulator not made by them is illegal, case law/precedent doesn’t agree). Rather, the real pickle Yuzu was in here came down to a rule that’s part of the DMCA that says you cannot bypass a protection measure on software for the purpose of piracy (with a few exceptions as granted by the library of congress). And that is where Yuzu was in trouble, because in order to run the Switch games that Yuzu runs, you have to hack them and de-encrypt them in real time. While Yuzu would argue that they wrote the software that could do this, but they didn’t provide the keys, Nintendo would argue that otherwise lawful users of the Switch would have no incentive to hack their Switch (which is illegal under Nintendo’s terms of use when you use a Switch) and dump their keys (also illegal under Nintendo’s terms of use) without the existence of Yuzu. It’s an interesting legal argument from both sides and I could not tell you who the courts would side with on that one.

In this case, I think a settlement is the best option. Frankly, if an emulator case went to court today, you have to contend with the very real possibility that a court finds with 20 years of hindsight that emulation maybe shouldn’t be so legal after all. That would be a far worse outcome than Yuzu by itself going down. Also, this leaves that question I posed above about bypassing certain technical measures in limbo. While it’s not OK to do, we don’t know for sure that it’s not NOT OK to do either, and settling this case out of court leaves emulators with that legal gray area to work with in the future. For instance, it IS OK to hack games (even if you’d otherwise be breaking the law under DMCA) which have an always online component for which the developer/publisher no longer provides servers (the library of congress has given explicit exemption here). So you could argue that it should be OK to hack games for which the console is no longer supported to bypass encryptions and such - think Nintendo Wii and Wii U today, for example, which don’t have online functionality supported by Nintendo anymore. That last sentence hasn’t been taken to court, so no one can say for certain, but the fact that someone who wants to develop an emulator has that gray area to work with is really important.

If Yuzu did have the resources (and you have to think if they settled for 2.4MN they had to expect a full trial would cost significantly more money than that) and could take this to court, you still run the risk of setting a new precedent that wipes out all that gray area. A reasonable judge could be convinced to side with Nintendo and say that all games are their IP for all time, regardless of whether Nintendo wants to support them or not, and that any modification of Nintendo’s IP in any circumstance is illegal. That’s what we don’t want, and why I don’t think you are going to see an emulation legal case go any further than a cease and desist or a settlement for a long time.