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this post was submitted on 28 Feb 2024
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Piracy: ꜱᴀɪʟ ᴛʜᴇ ʜɪɢʜ ꜱᴇᴀꜱ
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It doesn’t matter, it’s legal to create emulators and plugins for interoperability.
Yuzu cannot distribute switch games, nor distribute Nintendo software, but it can emulate the console.
Unfortunately, it's more of a gray area than most people think.
17 USC §1201 (f)(1)
Ok, and that applies to...
17 USC §1201 (a)(1)(A)
And a technological measure is:
17 USC §1201 (a)(3)
Perfect! Right?
17 USC §1201 (a)(2)
And unfortunately, Yuzu is capable of and needs console keys to decrypt games and system firmware files.
The reverse engineering for interoperability exception, (f)(1), only explicitly exempts (a)(1)(A) for research purposes. If Yuzu—as a software product—is found to have the primary purpose of circumventing Nintendo's DRM, it will be in violation of (a)(2) and the developers are not protected.
This is something that will need to be tested in court, but the only way they would be entirely in the clear is if they stripped out all encryption/decryption code and forced users to use some other tool to fully decrypt the firmware, NAND filesystem, and game image filesystems during dumping. They'll likely argue that the primary purpose is preservation, and Nintendo will use the fact that the Switch is still sold in retail as a counterargument to suggest that their development of the emulator was unnecessary and not in good faith. If they instead argue that it was created as a development or debugging tool, Nintendo could point to their low barrier of entry for developers to obtain a devkit (as evidenced by the crapton of shovelware and asset flips in the E-Shop).
If they don't settle, it's going to be an expensive mess to sort out.
Thanks for providing all that info, I was aware of some but not all of that. Is my understanding that just providing the emulator without keys correct? Besides the keys themselves and the switch OS, there’s nothing that bypasses copyright. It does seem like from the other comments here that the devs may not have kept a clean separation which will now bite them.
Almost. The technical stuff is going to be a bit butched, but I'll drop the legal speak and be more human for a minute:
What makes this unique isn't that Nintendo is going after them for providing the keys, but for actually using them. Yuzu asks the user to dump or acquire
prod.keys
on their own, and then it uses that to read encrypted data. The fact that it does that, regardless of whether the keys were obtained legitimately or not, is where the argument that it's a DRM circumvention tool lays. Yuzu itself is supposedly "circumventing" Nintendo's DRM process by using the keys in a way that bypasses all of the protections that Nintendo put into place to prevent the games from being loaded on non-Switch hardware.The Yuzu devs' willingness to have FAQs and a quick start guide explaining the requirements and steps to emulate commercial games on Yuzu is definitely going to bite them and undermine any defense they had for not knowingly marketing it as a circumvention tool. Another criterion is that Yuzu has to have some commercial significance if it were to lose its ability to circumvent DRM. And, as we know, it's an emulator...
The best chances they have is to convince the judge that Yuzu isn't primarily designed as a circumvention tool (which, once again, isn't helped by their guide on how to run commercial games) or that it falls under the accessibility exemption added recently.
Thanks, that all makes a lot of sense.
To me just asking for the key alone seems fine (I'm not a lawyer, but other tools like open transport tycoon and other tools do that), but advertising how to get those keys as you said will probably over the line, and advertising it as posting Nintendo titles more so.