Nintendo takes down Switch emulator creator
Nintendo takes down Switch emulator creator
Nintendo brought suit against and quickly settled with Tropic Haze the creators of an open-source Switch emulation tool.
On February 26, 2024, Nintendo filed suit against Tropic Haze LLC, the creators of an open-source Switch emulation tool, “Yuzu.” By March 4, 2024, the parties agreed to enter a Final Judgment and Permanent Injunction ending the issue.
Despite the lack of a court opinion in this case, the issue of emulators comes up occasionally, so we thought this case was worth a quick note.
Emulators
Video game emulators allow users to play games designed for a specific system on a general-purpose computer. For example, users of the Yuzu emulation software could play games intended for the Nintendo Switch on their PCs. Emulators play digital copies of games called ROMs (short for Read Only Memory).
The Complaint
Nintendo filed five claims against Tropic Haze:
Counts 1 and 2: Trafficking in Circumvention Technology in Violation of the DMCA
Count 3: Circumventing Technological Measures in Violation of the DMCA
Count 4: Copyright Infringement
Count 5: Contributory Copyright Infringement
Emulator Cases
Over the years, there have been several emulation software cases. Two Sony cases are often referenced to declare that emulators are legal: Sony v. Connectix and Sony v. Bleem. In the Connectix case, Sony accused Connectix of copyright infringement through Connectix’s copying of the Sony BIOS software during Connetix’s reverse engineering process. The Ninth Circuit reversed the district court and held that Connectix’s intermediate copying for interoperability purposes was protected fair use. In the Sony v. Bleem case, the only additional element was whether Bleem’s use of Sony’s images in advertising was copyright infringement. The Ninth Circuit held that the use of Sony’s images in Bleem advertising was fair use as comparative advertising.
Notably, in those cases, Sony did not claim that the emulators violated the DMCA, which was enacted in 1998 just one year before the Sony cases were filed. This is important because Nintendo’s main claims against Tropic Haze revolved around the DMCA’s prohibition on circumventing technological measures that protect copyrighted works. Nintendo alleged that the Yuzu software “unlawfully circumvent[ed] the technological measures on Nintendo Switch games and allow[ed] for the play of encrypted Nintendo Switch games.” And if Nintendo’s factual allegations were true, Tropic Haze would likely have eventually lost the case, which may have led to the quick settlement.
Settlement
Tropic Haze agreed to pay $2.4 million, cease all activities, and give up other elements related to their business (e.g., domain names).