Nintendo Sues Software Developers 'Facilitating Piracy On a Colossal Scale

A lawsuit won by Nintendo has huge implications for gamers due to a decision surrounding the use of popular ‘emulator’ tools which the gaming giant has claimed is piracy.

In February, Nintendo filed a lawsuit against developers Trophic Haze for developing emulator software which they stated was: “Designed to circumvent and play Nintendo Switch games on hardware not authorised by Nintendo.”

An emulator allows users to play software designed for the Nintendo Switch console on other platforms such as: PC, Linux and Android. Emulators reverse engineer hardware and run it as software.

Nintendo are against emulation and have stated that: “A video game emulator is a piece of software that allows users to unlawfully play pirated video games that were published for a specific console on a general-purpose computing device.”

Nintendo filed the lawsuit after discovering that the recent game in their 30 year-long franchise The Legend of Zelda Tears of The Kingdom, had been illegally downloaded over one million times on websites a week-and-a-half before its 12th May 2023 release date.

Trophic Haze responded to the lawsuit and agreed to a settlement with Nintendo of $2.4 million.

The decision will affect many gamers around the world because it will result in a wealth of classic games being made inaccessible to users.

A developer and graphic designer of well known Wii/Gamecube emulator Dolphin, who has referred to themselves by the online persona Mayimilae is against the decision but can see why developers like Tropic Haze needed to be more regulated.

She explained: “The death of physical objects is inevitable. The only way to permanently preserve the art and culture that makes up video games is as data. That's what an emulator is – a recreation of hardware as software, so it can last well and truly forever.”

On the decision of Tropic Haze, she added: “It is very unfortunate, but also I was not surprised by the outcome.” She said Tropic Haze making money off the emulator was wrong, and believes it called into question their motivations behind creating the emulator.

She continued: “This straight up gets in the way of preservation, as your emulator could get in the way of experiences.”

The case between Tropic haze and Nintendo took place in the United States where emulation is legally protected. The law states that it is legal to convert a game you own into a format where it can be used in an emulator. However, it is illegal to distribute games that you own to others as that then infringes on a company's exclusive right to copy and distribute the games that they own the licenses.

Emulator developer Sean Allkern has worked independently on many emulator projects for well known consoles such as Sony’s PlayStation and Nintendo’s Gameboy system. He agrees with Mayimilae’s stance regarding Emulation, while it isn’t illegal to create an emulator developer Trophic Haze profiting from it infringes on Nintendo’s legal right to copy and distribute these games.

He explained: “You don't have to break any copyright laws to use them.” He alleges emulators are not a way of “facilitating piracy” and that the way individuals acquire game files is the area where legalities could be breached.

In a statement posted on social media channels following the settlement of the lawsuit, Tropic Haze said: “Yuzu [the emulator Tropic Haze developed] and its team have always been against piracy. We started the projects in good faith, out of passion for Nintendo and its consoles and games, and were not intending to cause harm. But we see now that because our projects can circumvent Nintendo's technological protection measures and allow users to play games outside of authorized hardware, they have led to extensive piracy.”

The decision has resulted in many gamers concerned that thousands of older video games were at risk of being lost because emulators are the only way to play many of these older games.

Alexander Cutler Assistant Manager at GAME retail collects many older games physically and states: “With the current state of the industry there’s a large portion of the retro back catalogue that is currently inaccessible to the wider fanbase.” Many games and older consoles are not affordable to purchase, emulation allows gamers to play those titles.

He went on to say Emulation is not just a tool for piracy, but a way to create challenges from older games. For example, communities of software developers have used emulation to run modified game files, which add new features to older games. Gamers then play these in tournaments – including ones for charity.

 Cutler continued: “I support this option and part of the gaming community support emulation and use it as a way to learn coding, game development, sound design and it can also be seen as a way to learn more about the industry and support it.”

Cutler said he is convinced that emulation is essential for gaming to continue to thrive.