Nintendo’s Yuzu Lawsuit is All But Done. Price: $2.4m. Cost to Emulation: TBD

Available on Windows, Linux, and since 2023, Android, Yuzu claims to be the most popular open-source Switch emulator in the world.

That’s probably why Nintendo targeted Yuzu in a major copyright complaint filed last Monday in the United States. According to the Japanese gaming giant, Nintendo games are designed for Nintendo hardware and being the most popular Switch emulator in the world isn’t an accolade, it’s a statement of global piracy and always has been.

In many respects the 41-page complaint is meticulous as it details Nintendo’s long-held position on emulation. Cracking Nintendo’s console security violates the company’s rights under the DMCA’s anti-circumvention provisions. Bypassing or otherwise evading Nintendo security, deployed to protect its videogame content from piracy, fares no better.

Everything is Illegal, Period

From this base position, Nintendo believes everything built upon those initial violations simply amounts to further breaches of its intellectual property rights. The complaint alleges that the U.S. company behind Yuzu, Tropic Haze LLC, set out to facilitate Switch videogame piracy from the start.

Lead developer Bunnei and other coders hired by the company built and maintained Yuzu; they also encouraged Yuzu users to obtain their own encryption keys, fully aware they could only be obtained from Switch consoles, in violation of the DMCA.

The keys themselves are useful only when paired with Nintendo games. Indeed, the games cannot be played without them, while the games themselves can only be obtained after first violating the DMCA and then by copying, contrary to the Copyright Act, Nintendo explained.

Meticulous Technical Lawsuit, Surprisingly Thin On Basics

As previously reported, Nintendo’s complaint states that every infringing act, carried out by any ‘agent’ of Tropic Haze LLC, rendered the company liable for their conduct. Most notably, that includes the conduct of Yuzu lead developer Bunnei, without whom there would be no Yuzu.

Indeed, the complaint clearly states the importance of Bunnei, before zooming out to reveal a Switch piracy feeding frenzy on a global scale. All of this was made possible, Nintendo said, due to Yuzu’s built-in ability to pair extracted keys with pirated games. The rest of the critical development work, all of it led by Bunnei, was reportedly carried out to their specification.

Use of the possessive pronoun ‘their’ is hardly unusual but, when a lawsuit of this gravity paints a picture of a global piracy facilitator and then refers to them exclusively by their online handle, that’s somewhat unusual.

If Nintendo had drawn a blank on a real identity, that might offer an explanation. But with no Doe defendants even alluded to and not a single human mentioned by real name in the entire complaint, that raises the most important questions of them all: Who signs the check for damages when Nintendo wins, do they actually have the money, and why aren’t they here now?

Having noticed this anomaly in the complaint, we expected to have a little time to put the pieces together. Yet it appears that time has all but run out. After months or possibly years preparing for the big emulator showdown, Nintendo filed suit on February 26 and seven days later (which includes a weekend) a joint proposal was filed before the court on Monday, just a signature away from conclusion.

Joint Motion For Entry of Final Judgment and Default

Rather than put up a fight, Tropic Haze LLC’s pledge to Nintendo is to lose the case, so that Nintendo gets the big win it had hoped for, minus the inconvenience of litigation.

To ensure Nintendo isn’t troubled on the financial front, Tropic Haze LLC has consented to final judgment in favor of Nintendo and monetary relief to the tune of $2.4 million.

“Defendant and its members irrevocably and fully waive notice and service of the Final Judgment and Permanent Injunction, once issued by this Court, and understand and agree that violation of the Final Judgment and Permanent Injunction will expose the Defendant and its members to all penalties provided by law, including for contempt of Court,” the motion continues.

“Defendant and its members irrevocably and fully waive any and all right to appeal the Final Judgment and Permanent Injunction, to have it vacated or set aside, or otherwise to attack in any way, directly or collaterally, its validity or enforceability.”

“Findings of Fact”

The judgment and injunction proposed by Nintendo and Tropic Haze begin with a statement indicating that the Court will make certain ‘findings of fact’ in respect of the dispute and the details supporting its conclusion. In the event Nintendo finds another Yuzu in need of suppression, these established ‘facts’ would hold significant value.

They are summarized here but the heart of the ‘facts’ remain.

– The Nintendo Switch and Nintendo Switch video games contain technological measures that effectively control access to copyrighted works and protect rights of copyright owners, including Nintendo. Nintendo owns valid copyrights in works protected by the Technological Measures, including its video games and the Nintendo Switch operating system.

– Yuzu, a video game emulator, circumvents the Technological Measures and allows for the play of encrypted Nintendo Switch games on devices other than a Nintendo Switch. For example, Yuzu executes code that decrypts Nintendo Switch video games (including component files) immediately before and during runtime using unauthorized copies of Nintendo Switch cryptographic keys.

– Yuzu is primarily designed to circumvent and play Nintendo Switch games. In the ordinary course of its operation with those games, Yuzu requires the Nintendo Switch’s proprietary cryptographic keys to gain access to and play Nintendo Switch games.

– 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. Id. § 1201(a)(2)(A).

Permanent Injunction

The permanent injunction to which Tropic Haze has consented leaves zero room for maneuver. It restrains the company and all acting in concert or under its control from advertising, selling, distributing, cloning or even testing Yuzu, or any of its source or features. The same applies to any other software or device that circumvents Nintendo’s technical protection measures, including through the use of Nintendo’s cryptographic keys to decrypt files.

If passed as written, the injunction would restrain direct or indirect infringement of Nintendo’s intellectual property rights, including by enabling, facilitating or encouraging others to do so. Attempting to circumvent the measures laid out in the injunction through assignments or transfers, or the formation of new entities, is also ruled out.

The scope of the following section remains to be seen, but even if taken at face value, the aim is clear. Any emulator substantially similar to Yuzu should be considered immediately more vulnerable than previously understood.

And once there’s no familiar place left for the community around Yuzu to gather, the purging of the tools can begin, wherever that’s possible.

The proposed final judgment and permanent injunction have not yet been signed off by the judge but since the parties are in agreement on the details, that’s probably just a question of time. Meanwhile, a statement has appeared on yuzu-emu.org.