Nintendo is suing the creators of Switch emulator Yuzu

DMCA 1201 comes in two parts: a law that prohibits breaking DRM, and a law that prohibits telling people how to break DRM. If someone just had a Switch and somehow managed to figure out how to get the keys and games out of it, then ran them on an emulator, it'd probably be legal[0]. This is because the part of 1201 that makes it illegal to break DRM has shittons of escape valves that are designed to ensure that previously legal behavior doesn't suddenly become illegal just because you put a digital lock on it.

However, the part that prohibits trafficking in circumvention devices lacks any of these escape valves. I believe this to be by design. Congress wasn't willing to, say, reverse the Sony Betamax decision[1] and criminalize home video recording, but they were willing to allow Hollywood to slowly shut it down. A escape valve for circumvention would render the whole law ineffective: so long as someone has a legal right to break the DRM, you can sell it to anyone, not just people who can demonstrate they need it.

The legal standard for what constitutes a circumvention device is very broad. Specifically, something is a circumvention device if either:

- It's only function is to break DRM, or

- It's only commercially significant function is to break DRM (read: courts, ignore Betamax), or

- It's advertised to break DRM

That last one is the tricky bit. Let's say I took an ordinary HDMI-to-composite video adapter and put a sticker on it that said "Copy Netflix Originals Quick And Easy"[2]. Streaming boxes and Blu-Ray players support unencrypted output at legacy resolutions, so the video adapter breaks no DRM, it's just a DAC. But because I've advertised it as a way to strip DRM, I've broken the law by selling it.

So let's go back to our key dumping tool. Even if it's literally just a shell script for whatever the Switch equivalent of GodMode9 is, because it's being advertised as a way to copy games, it's just as illegal as putting the production Switch keys directly into Yuzu's source code. As an emulator developer, the only way to avoid liability under DMCA 1201 is to provide zero assistance to people who want to rip their games.

[0] This isn't court-tested, and probably never will, but prior attempts to argue against format-shifting in US courts haven't fared well.

[1] SCOTUS would do that later on with MGM v. Grokster. Remember: the reason why Sony was in hot water was specifically because they advertised Betamax as being good for pirating movies, not just that you could do so.

[2] In the world where Congress did include safety valves for 1201(a)(2), this sticker would probably say "Make Fair Use Commentaries On Netflix Originals Quick And Easy".

> A video emulator is piece of software that allows a user to run a video game on a platform different from that for which is was written. Many people use emulators to play unlawfully obtained pirated games.

Wording something as definition implies that the statement both contains no falsehoods and is complete.

Saying that the purpose of an emulator is to play pirated games is not true. I use an emulator to play Super Smash Bros Melee on my computer, with the ROM obtained from the disk I own. People have modded the Super Smash Bros Melee game to allow for online play, something that would be impossible without an emulator. People used emulators to find a bug in Ocarina of Time that would allow them to beat the game (played on original hardware) faster.

But the statement is written to confuse a non-technical fact finder into thinking that the only purpose of an emulator is to play a video game without paying for it, or to help others to do so. And it's done so because that Nintendo doesn't believe that you own the game you buy from it.

I understand if you disagree with this argument (I don't know if I'd endorse it wholeheartedly), but I don't see how it is asinine. The wider context here is that there are people who believe in "general computing", i.e. the idea that users should retain full control over computing devices and software they buy.

The philosophy of companies of companies like Nintendo is that when you buy a game from them, you are buying the right to play the game in exactly the way they want. If they could make modding illegal, they would (it is in Japan, to my understanding). This runs counter to the idea of general computing, where you should be to play a game you buy in any way you want, including modding, or playing on a different device, etc.

So to return to the point, the argument is that by refusing to sell their games to users of other platforms (as well as their other actions), Nintendo is working against the goal of general computing, and therefore it's not worth feeling sorry for them when people pirate the game. Phrased differently, people who don't own a Switch have no way to play the game besides pirating, and people should be able to buy games separately from devices.

Another fundamental argument here is that hardware/software walled gardens which are enforced by anti-circumvention and copyright laws are basically anti-competitive monopolies.

By affiliation I mean something like hosted on the same server but officially unlinked, not obvious affiliations. If a core maintainer redistributing them on their personal website.