This week, the developers behind the Nintendo Switch emulator Yuzu announced that the lawsuit Nintendo filed a week before had enough merit to result in, at the least, a settlement. Those in favor of Yuzu and of Switch emulation won't see it as a win, but they do see it as avoiding the worst-case scenario - for Yuzu, for Switch emulation, and in emulation in general. Fans of Nintendo see it as a slam-dunk victory for Big N and their never-ending, righteous fight against piracy, copyright infringement, and the evil villains of the internet who, if they got away with what they wanted, would surely bankrupt Nintendo if they could.
I'll get into the details, but first I want to point out: for a very long time, without much exception the internet has been getting away with pretty much anything they wanted at one level or another. One of those ways is in leaking big first-party Nintendo games online before they're available to buy, pirating the games easily and widely, and playing them both on emulators and on original Switch hardware. And despite all this, Nintendo is doing juuuuust fine.
The Yuzu Situation
Traditionally, emulators of video game consoles come years after the console isn't getting manufactured anymore, and the sales of new copies of games dry up. Those timelines have sometimes shortened since the 90s, but generally that's held true. The Nintendo Switch was a big exception, due in no small part to the fact that its security was always pretty lax, its deepest secrets were broken by some dedicated individuals early (with all information published freely immediately), and the hardware was generally not powerful enough to cause too much of an issue for today's PCs to run at decent speeds.
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| One of the Yuzu configuration windows. |
But there's another big reason that Switch emulation seemed desirable: it became clear quickly that the dated nature of the Switch hardware, even at launch in 2017, was holding some of the games back, and with the games essentially trapped on the platform by Nintendo, some users felt it was up to them to "free" it via emulation.
With the Switch running on well-documented hardware designed by Nvidia, early efforts in emulating the Switch showed beloved games running, unmodified, at much nicer speeds with substantially clearer graphics. And while many PlayStation and Xbox games would receive either simultaneous or eventual PC ports that allowed those with more powerful hardware to run those games at higher detail levels and smoother frame rates, Switch games languished on the platform Nintendo stayed with, while repeated and tired rumors of a "Switch Pro" turned into dust year after year. Would Nintendo finally throw their customers a bone and help make half-decent use of the 4K TVs gamers had been buying for most of the last decade? No, no they would not.
This should help set the stage and show why the idea of emulating the Switch was more appealing for developers, and for players, than for pretty much any other game console of the last couple of decades.
The Piracy...
You might be wondering - "isn't PC the easiest game platform to pirate for?" - to which the answer would be yes if it wasn't for copy protection software like Denuvo, which not only is intensely difficult to remove in every iteration it's been used in, but also has changed over time and been made more difficult to crack over the years. To contrast, the limitations of maintaining the Switch platform have prevented Nintendo from creating new copy protection schemes over the Switch's lifetime - and it's possible that this late in the platform's life, they may not be able to before it's time to roll out the successor.
Of all of the modern gaming systems (PC included), the Switch is the easiest current one for pirates to exploit. First, Nintendo always puts all of the game data required to play onto a cartridge's storage, never using any "hooks" required to go online to be able to play. Additionally, any game cartridge could get "dumped" to a file through a console running custom firmware dating back to the original run of Switch consoles that included hardware-based exploits that no software update could ever patch.
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| The one the Yuzu devs should have probably chilled out on. |
So if a physical game falls out of the marketing "chain" (i.e. a manufactured cartridge is lost or stolen, or a boxed copy of the game disappears out of some shipment), and into the hands of someone with freely available software and one of millions of "hackable" Switch consoles, that game cartridge could be turned into a file that could be put online, with no copy protection to worry about. Sure, the game data is technically encrypted, but the keys built into each individual Switch can be used to decrypt the games upon inserting the cartridge.
This has led to some of Nintendo's most high-profile games being put online and usable both in software like Yuzu or on other hackable Switch consoles over a week before the street date. Was it catastrophic for Nintendo's bottom line? Well, it's hard to say because at least one study has shown that piracy doesn't drastically hurt game sales. (Actually the conclusion was that it doesn't hurt at all and may even help, but the margin of error for the study was so large, I don't think it's fair to make the conclusion the author did.)
... and the Patreon
Enter Yuzu, one of at least three working Nintendo Switch emulators available to gamers. Yuzu promises to use no actual Nintendo data or code (there were allegations of stolen source code, but this is more of a weird fight over code that was submitted by users to the Yuzu source code repository, and has nothing to do with Nintendo themselves) and does not supply the keys that Nintendo uses within the Switch consoles themselves to decrypt games. But if the user is able to pull those keys out and supply them on their own, Yuzu happily decrypts the game and plays it.
Additionally, the Yuzu developers had a Patreon page open, where people could subscribe with a monthly subscription and at least for a time, get early access to development versions of the emulator that often had day-one fixes that made newly-released games either tolerable or in some cases, playable in the first place. Because Patreon publicizes this income, we know that at its height, Yuzu was pulling in about $40,000 USD per month.
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| At its peak, it was over $40k/month. |
And the game that Nintendo cited in its lawsuit against Yuzu, The Legend of Zelda: Tears of the Kingdom, is one that the Yuzu devs were putting fixes in for (and delivering early to Patreon subscribers) after its release date. Nintendo does allege that Yuzu was made to run TOTK before its release date, but looking back, that is incorrect. Some folks made some private code changes to get it running prior to the launch, but those changes were not made or uploaded by the Yuzu developers themselves.
Beyond that, as part of the settlement, the Yuzu developers seem to have been required to make a statement that it sounds like they themselves likely didn't write, and they gave up a sum of $2.4 million USD (more on that amount later) to Nintendo. Finally, there was considerable data that they may or may not have handed over to Nintendo, both as part of the Patreon and that they collected through the app itself.
Information Collection and what Nintendo can do with it
So what are the Yuzu developers sending over to Nintendo? Well, keen-eyed folks from years back noted that Yuzu requested collection of telemetry data. If left on, it's possible their own web server logged the source IP that the data came from, and so the IP could be tied to things like the name of the game being played.
What about Patreon? If Yuzu did hand over the names of Patreon subscribers to Nintendo, there is still an issue of tying that to actual use of Yuzu. You see, you can subscribe to a Patreon without ever making use of the "benefits" that come with that subscription. Additionally, versions of Yuzu have also been available to download for those without a Patreon subscription. Finally, unlike with a few of the more recent software-based Patreons we have seen in the last year, Yuzu never required any form of authentication or logging into a Patreon account to run the early-access versions.
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| Yuzu's anonymous usage data collection setting. |
Due to all this, even if the Yuzu developers handed over every scrap of data related to all of their emulation work to Nintendo - names, IPs, money spent, etc - I don't believe that Big N could do much with it to go after individual Yuzu users. The best they could do is get a list of IPs infringing on their copyrights with specific timestamps, ask ISPs to supply subscriber information for each IP, and if the ISPs went along and supplied that information, then try to serve each of those individuals with lawsuits. In general, this methodology only worked sparsely during the Napster and Limewire days when the RIAA tried to sue individual music pirates, and fell apart quickly as legal costs rose.
But Didja Get the Pirates?
So, could Nintendo use all this information they got from Yuzu to do something about actual piracy of their games? Well, if the Yuzu developers were stupid enough to not only have conversations with piracy groups but also log those conversations and then also actually hand those conversations over to Nintendo, then conceivably, yes. I don't think they would, though, and so this highlights the divide behind "piracy" and "emulation". While you won't catch me denying that the two are often linked (even on old systems, where people rarely own the original games for all of the roms/ISOs they collect), especially when we're talking about a system and games that are being sold today, they're still not the same thing.
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| Sworn Switch hackers and thieves. Not necessarily pictured: Yuzu developers. |
Even with the end of active development of Yuzu (which will likely start up again in one form or another as the final version's source code was copied countless times) and even if Nintendo were able to wave a magic wand and magically delete all copies of not just Yuzu but the other Switch emulators off of everyone's PCs and other devices, they still have a leak problem, and they still have a piracy problem. You see, piracy of Switch games was a problem long before Switch emulators existed, and if the supposed "flash cart" we've heard about recently winds up getting released, it will become even more prevalent in the future.
And that's what Nintendo needs to focus on: preventing the leaks of their games in manufacturing, shipping, and retail channels; shutting down sites that make it easy to distribute Switch games, and working to find a way to curb piracy of Switch games through new methods not previously thought possible.
Was Piracy Necessary to Develop Yuzu?
To answer the above question, no, but the timing is certainly suspect. Some are pointing out (keeping in mind that the tweets surrounding some of these screenshots do include speculation and some rather fervent pro-Nintendo zealotry) that the Yuzu developers likely were in possession of early copies of these games - whether those are physical or pirated copies, we don't know - as at least once there was a "day one" update to Yuzu getting a just-released game working. I'm not sure this is quite as damning of a fact as some may think, as it's not impossible to get a game and log code changes to your software to improve compatibility for said game on the same day.
Either way, it's certainly possible that the developers were not only downloading early pirated copies of games, but also possibly trading amongst each other. If it was so clear that this was true, it's my opinion that Nintendo would have insisted on their day in court, because it'd have made their case stronger - and later we'll discuss why that would have been much more preferable for Big N going forward.
$2.4 Million, though!
OK, yeah, it's a lot of money for an individual, so let's discuss that dollar amount for a minute. We've already talked about handing over data and shutting down the Yuzu project itself (although, as mentioned, the source code is out there and nothing is preventing others from trying to restart the project). There's the statement the developers made essentially apologizing for encouraging piracy, which I'm not sure they actually believe considering they consistently told people not to do that.
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| Something like $2 million. |
And there's the $2.4 million they paid to Nintendo. My thought is this: Nintendo doesn't care about that sum of money. If it was $400,000, it'd have been all the same to them. If it was $24 million, sure, whatever. It's not about the money, it's about sending a message. For the Yuzu developers, it was peculiar that only a few days prior to this settlement, they had announced they'd secured legal counsel, and then bam, they'd settled.
What it sounds like to me is that legal counsel probably correctly told the Yuzu team that Nintendo's pockets are deeper, and Yuzu's bank account would run empty before a trial began, leaving them to fend for themselves and probably requiring them to settle anyway. So if that's the case, why not go to Nintendo with the best possible settlement "offer"? And, frankly, if this is true, it was probably a wise decision to do it.
But it's TWO POINT FOUR MILLION!
Alright, let's just spend a moment looking at Nintendo's recent legal actions regarding the Switch. They have, as the kids say, no chill. They try to punish evildoers to the maximum extent of the law, and if they can, they will crush their opposition. Just ask Gary Bowser (no relation, heh), third-tier underling of Team Xecuter, who despite not developing any of the key code or products they sold was the only one Nintendo could get the US government to catch due to where he was in the world. And so he was he was arrested in the Dominican Republic, extradited to the US, and pled guilty to 2 of 11 felony counts, allowing the other 9 to be dropped. He served 14 months in prison and owes a nearly $15 million judgment, which he will never be able to fully repay.
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| Oops, wrong Bowser. Sorry, but you knew this one was coming. |
Does it make sense that if money was what they're looking for, that getting $2.4 million is what Nintendo wanted? Probably not. Even if one argues that playing a game on Yuzu definitely equals a lost sale (something many copyright holders will claim similar things to in these situations, despite dubious logic behind such statements), that $2.4 million wouldn't even cover what would've been lost on Tears of the Kingdom alone, much less every other Switch game that was played on Yuzu.
In my opinion, Nintendo knew that taking this case to trial was risky. My guess is the Yuzu team's legal counsel told them to just offer them all the cash in the Patreon account since it would eventually all be bled out anyway, and they took it.
The DMCA
Nintendo's lawsuit cited numbers of downloads and Yuzu Patreons, but
in the end, they also needed to cite an actual law that was broken. What law was
that? The Digital Millennium Copyright Act. Oh, the DMCA, the harsh
mistress that has been the basis of much janky tech-based law and legal
precedent. Let's dig in.
The portion of the DMCA that Nintendo says Yuzu violated was the bit about "circumventing copy protection". Nintendo tries to draw the line that they wrote the encryption that Switch games are wrapped in, and any decryption of such games except on their systems violates the DMCA. Full stop. What wasn't explored, and would have had to have been determined in court, was whether the user supplying a Switch console's keys themselves to Yuzu in order to decrypt said game then absolves Yuzu of any such violation, or possibly not actually making it a circumventing entirely - instead simply making use of the copy protection "as intended". Nintendo certainly would argue that it's not what they intended, but it seems to me that a sufficient legal argument may have been that the intent of encryption in general is to prevent getting to data without a key, and that if Nintendo puts encrypted data out in the open (like, on a game cartridge) and a user unlocks it with a key that was written and supplied to that user by Nintendo, then no one has "circumvented" anything.
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| Is it, though? |
It's easy to get wrapped up in legal and tech mumbo jumbo, however, and realize that yes, this is probably largely a bunch of logic leaps and technical process just because people want to play a video game they didn't pay for, and so it's stupid to go this far and they shouldn't be defended.
But I would remind the reader that when you buy a Switch game, it comes without an agreement telling you what you can or can't do with it. There's no such agreement you have to sign before buying, it's not there when you open the box, it's not there when you boot up the game. The possibility that you could* do something illegal with said game should not prevent you from doing what you want with your game if a court does deem it legal. And there is at least vaguely some precedent here...
But Nintendo Still Won, Right?
Yeah, they won, but not the way some think. It really just resets us back to where we were about five years ago. While some folks will tell you Nintendo scored some kind of massive victory here, keep in
mind that the settlement reached here doesn't create any kind of legal
precedent, which is a key part of case law in the United States - as in, without an actual court ruling, they didn't create any future slam dunks for Nintendo to take any other emulator
developers to court and basically score an automatic win in the same
way. If Nintendo had taken Yuzu to court, refused to settle (which they could've easily done this week) and won, they would have been
able to easily apply the DMCA and the same logic in court to any other emulator that touches their systems that use emulation, now and long into the future, to shut down any future emulation of upcoming systems.
They didn't do any of that, and it's not like they couldn't afford the cost of the legal battle. They also didn't hold back to try and prevent harm to any individuals in their crosshairs (remember Gary Bowser above). Instead, the only remaining scenario left to me is that Nintendo knew there was a serious chance they could lose in court, and if they had, that would've created a legal precedent entirely in the wrong direction for them instead. So they took what they could.
Yuzu and Non-Piracy
Many gamers, most of whom simply play games on Switch and have no idea why someone would bother to emulate it instead, have asked: what else would one even use Yuzu for, aside from piracy? And yes, there's the notion of game preservation. It turns out these game publishers are pretty terrible at keeping an archive of their releases (see: the scramble to save the 3DS eShop archive), and so decades or even centuries in the future, it's pretty much just "the pirates" that are the ones doing the work to preserve games for future generations.
But I understand that a 19-year-old Switch owner is about the furthest from caring about game preservation in this way as they can get. Right now, they can barely fathom the idea that they might want to come back to these games in a couple decades' time when Switch consoles may not even work, and the thought of playing their switch when they're 40 just sounds insane and ridiculous. It did to me when I was 19, too, but those of us who have now grown older know that retro gaming is a wonderful way to relive some of our favorite memories, even if the young among us don't get it yet.
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| Here's an invincible SNES motherboard definitely not being destroyed by capacitor leakage. |
So instead, let's just set all that aside. Right now, even on something as modest as a $399 Steam Deck, a Switch Emulator like Yuzu can run those games better than the Switch itself can. And why would you do that? Why wouldn't I, especially if it's a great game? And if I bought a game, and I want to do that, why is it anyone else's business if I did? Especially Nintendo's? If I buy the game, I own that copy of the game and I should be able to do what I want with it unless I'm hurting someone, like making copies of it for others. When you buy and open a Switch game, you'll note you didn't sign a license agreement saying you have a temporary or revocable right to play it that expires when Nintendo says they don't like how it's being done.
Oh, Poor Citra
One sad side effect of this settlement is that Citra, the by-and-far best emulator for the Nintendo 3DS, was shut down too. The reason is that at least one of the developers was the same between it and Yuzu, and Citra had a Patreon too, although no one seems to have quite the problem that they did with the Yuzu Patreon (probably something having to do with the 3DS being an "old" platform now, and new builds not being distributed only to paying subscribers like Yuzu was).
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| Citra, the real casualty in all this. |
And the rough part is that the 3DS is a dead platform - no more games or consoles are being manufactured, and the online eShop is gone too. Meanwhile, physical games of even fairly common games like some Pokemon titles are going in excess of $200.
Why Not Just Original Hardware?
One question I repeatedly saw come up during the debates (if you could call them that) on Twitter surrounding this settlement is, "Why is it so hard to just play these games on the original hardware?" After all, don't old NES systems work or whatever? But the answer is, sure, some of those systems are alive, but actually a ton of those old systems are dead and gone. Capacitors leak, NAND flash chips die, and batteries swell. And if you think, well, none of that is gonna be a problem in ten years' time, then give it another ten after that. Ten more. And ten more. Eventually, yes, it will be a problem.
This is not a hypothetical either. Disc-based systems all go bad eventually, and the Wii U has a catastrophic problem that, unless actively repaired, WILL kill those machines. This is a problem that was only discovered relatively recently. All of this is why not only preservation, but emulation, is important to keep alive.
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| Left: Mario Odyssey at 1080p on Switch, jaggies included. Right: Mario Odyssey at 4K, captured via Yuzu. Courtesy of BSoD Gaming on YouTube. Click to see more detail. | |
For those saying that emulation of old systems is fine, well, this settlement will probably push emulation back to that point where we're back to just emulating "old systems". It is what it is. But just keep in mind that if Nintendo ever figures out a way to get a court to legally stop all emulators for a "new" system from being developed (an outcome that had they won this in court would've been a reality), such a legal decision would last for a very long time - and today's new systems will become old systems long before such a decision expires.
Can't Defeat the Internet
The upside to all this is that Nintendo has been defeated before on these fronts and has still found billions in profit anyway, and that will likely continue to happen. Pirates will continue to try and find ways to leak and distribute games just for the internet credit, emulator developers will keep building new software just because it's an interesting puzzle to solve (although, probably this time, without the Patreon accounts backing them), Nintendo will take more YouTuber ad revenue, big game publishers will find more ways to repeat the same colossal mistakes, and gamers will still get to enjoy what they can from games when they can. Emulation was born, survived, and thrived long before Yuzu or Patreon, and it will after it, too.
At least the one thing we can count on is that armchair Twitter users will keep arguing and delivering awful takes at each other non-stop until the end of time.