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.
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.
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.
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.
> 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.
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.
- 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.