Switch emulator Suyu—a fork of the Nintendo-targeted and now-defunct emulation project Yuzu—has been taken down from GitLab following a DMCA request Thursday. But the emulation project’s open source files remain available on a self-hosted git repo on the Suyu website, and recent compiled binaries remain available on an extant GitLab repo.
While the DMCA takedown request has not yet appeared on GitLab’s public repository of such requests, a GitLab spokesperson confirmed to The Verge that the project was taken down after the site received notice “from a representative of the rightsholder.” GitLab has not specified who made the request or how they represented themselves; a representative for Nintendo was not immediately available to respond to a request for comment.
↫ Kyle Orland at Ars Technica
Self-hosting the code repository and binaries is probably the only way the Switch emulator can continue to reasonably exist. The issue with Switch emulation seems to be that the device is current, popular, and still makes endless amounts of money for Nintendo; it’s very different from SNES or Mega Drive emulation, to name a few examples. While I personally don’t think that should make Switch emulation off-limits or any less valid than emulating older systems, I can see how it would draw the ire of Nintendo more readily.
“The history book on the shelf keeps repeating itself”
GameBoy, PlayStation and Nintendo 64 emulators all existed during the commercial life of the systems. Connectix Virtual Game Station (PlayStation emulator, 1999) was found to be legal, but Sony bought them afterwards and shut it down.
It is has been established since 2000 that it is legal to emulate systems, even those currently on sale. Stop apologising for Nintendo.
Nowhere in Thom’s post is there an apology for Nintendo’s behavior.
Wii-U emulation was contemporaneous the Wii-U being Nintendo’s current hardware. However, the Dolphin emulator doesn’t play encrypted game discs, so it either only plays homebrew games, or it plays discs that have been decrypted elsewhere, so that Dolphin isn’t at all involved in DMCA or Copyright infringement.
SuYu only plays encrypted game ROMs, so there is no real way to use the emulator WITHOUT violating copyright.
Decrypting DRM-encrypted content doesn’t violate copyright, it violates the anticircumvention provisions of the DMCA. In other words, YuZu didn’t get hit with a DMCA copyright takedown notice but a DMCA circumvention-of-DRM notice. There’s a big difference between the two.
Also, YuZu didn’t provide keys but provided a decryption mechanism that takes keys as input. Does this violate the anticircumvention provisions of the DMCA? Nintendo thinks it does, YuZu thinks it doesn’t (but YuZu didn’t want to risk going to court so they settled). Let’s see what SuYu does.
This is all so reminiscent of the DVD case where any open source software that could play DVDs was sent take down notices. The court tried its darnedest to take down all the sources. But people everywhere started posting it and the court essentially gave up. It’s turns out there is safety in numbers, but things could have turned out very differently for our right to play encrypted DVDs using FOSS if Hollywood had won.
I don’t know if we should assume a similar outcome here though. For one thing courts are notoriously inconsistent. Another factor could be that there was a lot more decentralized file sharing going on back then, making it extremely difficult to pursue them. But these days the decentralized services have fallen to the wayside and the public are far more dependent on centralized services that can be legally threatened. The major tech companies everyone is dependent on may be ordered to aid in legal enforcement.
Those open-source DVD players either provided decryption keys or brute-forced the decryption (CSS uses a very short key so it’s possible to brute-force it), and the court declared them to violate the DMCA’s anticircumvention provisions,
Yuzu and SuZu don’t provide decryption keys, just the decryption mechanism (you have to provide the decryption keys), so they can’t decrypt anything by themselves, so it’s a novel case for which no legal precedent exists (relating to whether they violate the DMCA’s anticircumvention provisions or not).
Hollywood did win, DeCSS was declared illegal and everyone selling software or hardware capable of playing encrypted DVDs in the US had to buy a license from DVD CCA and implement the rest of the DRM system (which means no copying of files, no recording functionality in the player, CGMS-A and macrovision in the analog outputs, UOPs, region-lock, and later HDCP in the digital outputs).
Hollywood always knew they couldn’t nab off-shore companies headquartered in China or Belize or wherever, their objective goal was always to not have DVD copy software sold US big-box stores (or from US websites) and they achieved that, anyone selling or generally making available DVD copying software (obviously unlicensed by the DVD CCA) is now based off-shore. Even libdvdcss is distributed by VideoLAN which is off-shore (France) so it was never legally challenged in the US, the legal status of libdvdcss (relating to the anticircumvention provisions of the DMCA) is still dubious in the US.
kurkosdr,
I’m not sure I agree with this stance, it wasn’t just a 5 byte key that was at the heart of this case but the code itself, which is part of the trade secret that wasn’t allowed to be distributed. I feel there are very strong similarities here.
https://supreme.findlaw.com/legal-commentary/the-california-supreme-courts-recent-decision-on-decss-the-dvd-encryption-cracking-code.html
“Win” should go in quotes, they might have won in court, but they lost in real life because the decision was ultimately unenforceable because the cat was out of the bag and there were too many people determined to keep it that way, even US residence. Who knows what would happen if a new case like this took place, obviously courts may or may not rule in our favor, but also the public response might not be as effective in rebuking hypothetical court’s orders for the reasons I mentioned above. There’s safety in numbers.
I agree, the US is more fraught with legal risks. If we’re known for anything it’s frivolous lawsuits, haha.
One more point. It’s kind of implied, but the enforcement/punishment methods that courts have at their disposal don’t necessarily work with “FOSS” like they would with proprietary companies. They might try to declare some FOSS code to be illegal, by it’s freedom oriented nature FOSS is just a lot harder for courts to contain.
Circumventing copy protection does NOT violate copyright. I’m allowed to make personal copies of the media I purchase. It _might_ violate other laws, and maybe some EULA’s, but it definitely does not violate copyright. Don’t make stuff up.
And hosting the code outside USA is a great idea, since DMCA does NOT exist in the rest of the world.
For example, decrypting your device to add more functionality, or just to install something like Linux, is 100% legal in Brazil, by law. For example, using crypto to prevent resseling of software, (making it work only on a person’s hardware and not being possible to pass it on) is illegal.
The existence and popularity of Yuzu and derivatives (and older system emulators) proves a market exists in this space for Nintendo games on PC. I’ll never understand why Nintendo chooses to spend money on lawyers, which provide ZERO return on investment, when they could instead simply address a market that is telling them quite loudly, that they want to play Nintendo games on PC. Image if they would just release eShop on PC, and make their back catalog available.
If I had to guess, I’d bet Nintendo’s dunderhead leaders think releasing games on PC means giving 30% to Valve. Have they simply not considered that they could grab an easy revenue stream from a PC storefront? I know it’s a red sea market – but it’s such low hanging fruit. Even Sony is in on it (though they strangely haven’t released their own store front.)
(One final note: It’s always been my opinion that piracy doesn’t cost these companies half of what they think it does. Does anyone have any research showing how many “pirates” would have spent the money without having access to pirated software? I bet it’s a minuscule percentage. Likely a story at odds with whatever story Nintendo’s lawyers sell their leadership.)
ChatGPT has confirmed my bias https://chat.openai.com/share/debb6f96-4035-4cb8-9540-72388354bd03