The Unknowns of Emulation: A Breakdown of Yuzu V. Nintendo

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If you have been in the gaming community for a while, you most likely have heard of the term "emulation", which can be best described as recreating or imitating, in this case, actual gaming hardware--consoles, computers, or handhelds--into other devices. During the 1990s, computers were reaching a technological standpoint in which it was becoming feasible to replicate the behaviour of early or older consoles and hardware, with one of the earliest emulators documented being a Famicom emulator having a timestamp of December 1990.

However, as it's always the case when it comes to emulation, it goes hand in hand with the legalities surrounding the scene, with many citing that it's just another instance to allow piracy of any given software, to others citing that it's a requirement to be able to preserve videogame software in its many forms throughout the years, past the original hardware's lifespan.

What's the turning point between legal emulation and piracy? What entices legitimate usage of an emulator, and what are the limitations of it from a legal standpoint? Or at least from the known factors and actual legal cases. With the current state of big corporations like Nintendo going after videogame emulators like Yuzu, it's important to delve into these topics, and clear up some information floating around in regards to emulation, and talk about others which are still unknown in the wide scheme of things.

Back in February 27th, 2024, news broke out about Nintendo filing a lawsuit against the company in charge of the Yuzu emulator, Tropic Haze LLC. The legal documents provided on the initial filing of the court case focused on several points, from which there are three important factors that were touched upon the most in the court document:

• The Yuzu development team utilizing a Patreon for EA (Early Access) builds, which saw an important rise in support during the release of "The Legend of Zelda: Tears of the Kingdom", amounting to 30k USD per month before the takedown.
• The Yuzu emulator facilitating piracy, sometimes even allowing street dates to be broken prior to some games' release dates.
• The Yuzu emulator circumventing copy protection measurements put in place for the Nintendo Switch, and using said circumvention to play "unauthorized" copies of Switch games in "unauthorized" hardware.

Now let's cover these points one by one:

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1. Yuzu team utilizing a Patreon.
In this day and age, it's not uncommon for anyone doing any kind of service, commission, or work online, to open up a Patreon. Some Patreon users to utilize this as a way to incentivize money gain by locking certain works, or adding "perks" and early releases to people that are donating to the Patreon at hand, and in some cases, this exclusive content being done through Patreon is not shared publicly.
However, in the specific case, nothing from the Yuzu emulator was locked behind a paywall, as the emulator was open source, and the latest commits of it (from which the EA builds are made from) could easily be compiled and run without the need of a Patreon account or donation. Additionally, the idea of an emulator being "sold" is not new, as was the case back when Sony filed a lawsuit against Bleem!, which was a commercially sold emulator, and the ruling was in favour of Bleem!
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(even if it took Bleem! out of business in court fees).

Yuzu's Patreon page before removal
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Despite this, and for the sake of being "safe" when handling emulation software of any kind, it's better to rely on a fully open source environment without any form of financial incentive.

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2. Yuzu allowed users to play games with broken street dates before an official release.

To delve into this point, we have to cover several points of interest, and most of them probably got by for people that weren't around the scene during the times in which games with broken street dates leaked, particularly that of Tears of the Kingdom.

• A game being leaked before release is not new for Nintendo (and certainly not for the Switch), and this held true for games even back during the Wii days with New Super Mario Bros. getting leaked before release, with a specific court case being brought up in which the leaker had to pay Nintendo a hefty amount. The same applies for games on Wii U, 3DS (and now the Switch), and it's important to note that most of those consoles didn't have a fully working emulator (that booted commercial games at playable states) until almost 3 years into their commercial lifespan.
  
  
• The Nintendo Switch was hacked on year-one of its release date. Modded Switches (with additional tweaks) allow for playing personal backups or pirated copies of games in it, being also a base point for piracy for the system (and most likely still the primary method for Switch piracy).
  
  
• A key factor that comes into play for leaked games is that the game dumps that were therefore distributed online were made using original modified/homebrewed hardware. In order to dump a game (more specifically, a ROM image of the original game, as discs or ISOs are most likely dumped using actual PC DVD/Blu Ray drives), the user requires the original hardware to be able to dump the ROM itself out of the game cart, as was the case for the DS, 3DS, and now the Nintendo Switch. To summarize, a game dump (or pirated copy for the purposes of this topic) wouldn't be possible without a hacked or modified console first when it comes to modern consoles. Additionally, the requirement of the Switch-specific keys that Yuzu asked users to provide on their own in order to work also has to come from an original Switch.
  
  
• A videogame emulator, Yuzu in this instance, is specifically designed to simulate or imitate actual hardware (Switch). If the programming of the emulator is accurate enough to achieve an imitation of the hardware at a decent level, it will of course run games designed for the actual hardware with little to no tweaks (as seen with homebrew games released past the consoles lifespan). During the Tears of the Kingdom leak (which is cited as a primary example in the legal document), Yuzu didn't work at all with the game, giving a black screen. Other Switch emulators did boot the game, but with a lot of bugs and glitches. During the whole time frame before the official release of the game, none of the emulators committed any actual code addressing issues with leaked games. It wasn't until the game was officially released that code started to be worked on for the game in hand.
  For Tears of the Kingdom specifically, the manner in which users managed to run the game through Yuzu was through unofficial forks and builds being made from the GitHub repository, with these builds being shared through different outlets online, and a lot of people working to provide patches and modifications that made the game run. As an additional note regarding this time frame, the Yuzu emulator team frequently refused Pull Requests and Issue reports on their GitHub based on Tears of the Kingdom during the time frame between the start of the leak and the official release date, and only started work on it once they got a legitimate copy of the game on release.

The Yuzu emulator running on Valve's Steam Deck​

To close up this point, it's entirely plausible that one of the main reasons why the Yuzu team was sued over piracy claims is that they very well could have been sharing ROM files between themselves for the development of the emulator, or just engaging in piracy themselves and being caught on. This is certainly a possibility, and some images from the lawsuit document seem to hint at this as well. Getting legitimate copies of the games that are being worked on for compatibility with the emulator would have been the best course of action for this (or at least not brag about it openly).

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3. Yuzu circumvents Nintendo's DMCA copy protection measurements

This is the major point of debate, and one that hasn't been proven in a modern legal case yet. This could also add to the whole point of the homebrew app Lockpick being hit by a DMCA some time ago as well, so let's dive into the DMCA Exemption rulings for the US, specifically for videogames

Section 1201(17)(i)(A): Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal, local gameplay on a personal computer or video game console

However, the section regarding the circumvention of copyright protection systems under the US law states the following:

Section 1201(17)(a)(1)(A): No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

To add to the previous point of circumvention in regards to reverse engineering, and interoperability:

Reverse Engineering (f):

(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

(4) For purposes of this subsection, the term "interoperability" means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

This all makes it seem as if indeed circumventing Nintendo's copy protection measures are in violation of the DMCA. However, there's still Personal Use and Fair Use, which according to the University of Melbourne sums up to the following:

Personal Use limitations:

• Ownership of a physical or digital copy of the material being reproduced. (Please note this does not include streamed material, where a licence fee is paid for accessing material. Streaming services do not give users ownership of material on their sites. Material on these sites is leased or rented.)
• Private use.
• Includes the full copying of works.
• Lending or sharing of copies is not allowable

The University of Salisbury also has an entry regarding Fair Use and Personal Use, which could be worth a read.
Additionally, Personal Use also allows for format shifting, which means that a copyrighted material such as a video recording being transferred into a DVD, and other examples in the same vein, enter into Personal Use as well.

To add to this point, there's also the guides that Yuzu provided to dumping your own keys out of the Switch, that could very well enter into the DMCA section for copy protection circumvention, making it another possible key factor into the lawsuit. For this case, it'd be better of just mentioning that the user requires their own "legitimately" dumped keys, without providing any actual steps on how to do it, like other emulators do for bios files and other requires files, where they simply mention the file needed, but not how to get it.

With all that said, it is still unknown exactly if a copy protection circumvention would fall under a DMCA exemption for Fair Use / Personal Use, since most of the copyrighted material nowadays comes with some form of copy protection, be it from music, movies, games, computer programs, etc. This point still remains to be properly tested in a modern legal court case, as it would certainly pave the way for what actions companies might take against emulators for video game consoles that use encryption of any kind.

The following video by Hoeg Law goes in depth about the lawsuit between Nintendo, the DMCA and Yuzu, which could help to better explain the whole legal standing of the situation.

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While the Yuzu emulator was shut down due to the settlement with Nintendo for 2.4 million USD, the company and devs behind it were previously and originally working on another emulator for a Nintendo system, that one being the Citra emulator (which emulates the Nintendo 3DS), and inadvertently, the Citra emulator was caught in the crossfire as well, being shut down alongside it's younger emulation sibling, Yuzu.

Many popular people and developers online have gone ahead and made their own points about the situation, such as former homebrew developer now turned video game developer Modern Vintage Gamer; who has worked on officially released games for the Nintendo Switch and other platforms, YouTubers ReviewTechUSA, Linus Tech Tips, Some Ordinary Gamers (to name a few), with some of them having strong opinions in regards to emulation being a necessity for the preservation and personal use of gaming as a whole for the future.

While this doesn't necessarily give a modern legal precedent for gaming companies against emulation given how the case was settled before it even got to the court room or a judge, it certainly has made waves worldwide about what the future for emulation would be in a world where the DMCA, copy protection and anti-circumvention tactics disallow users who legitimately own their games to play them after the inevitable demise of the actual original release and hardware.