![](\"https:\/\/supermario.nintendo.com\/assets\/img\/explore\/outfits-business.jpg\")
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By Eleni Paraskevopoulos<\/p>\n
If you\u2019re a fan of video games, you may be familiar with the concept of emulators.\u00a0 An emulator is a computer program or device that enables a computer system to function like another device.[1]<\/a> Imagine you suddenly have the urge to relive the experience of playing \u201cMario Kart: Double Dash!!\u201d on the GameCube, but you don\u2019t have access to a working GameCube. With an emulator, that wouldn\u2019t be a problem. Emulators are not exclusive to video game consoles.[2]<\/a> Software developers often use emulators to test how an app would function on various devices with varying operating systems.[3]<\/a> In addition to its ability to allow users to play classic video games on modern devices[4]<\/a>, emulation also has a purpose and use in developing technology and refining it to work across various software systems.[5]<\/a> Because of its multi-purpose use, the technology exists in a sort of legal grey area.[6]<\/a> Although, that may all change.<\/p>\n On February 26, Nintendo filed a lawsuit against Tropic Haze LLC alleging \u201cmassive intellectual property infringement\u201d of their work and \u201cothers copyrighted works\u201d.[7]<\/a> Tropic Haze LLC is the maker of \u201cYuzu\u201d, a video game emulator designed for Nintendo Switch games.[8]<\/a> Nintendo specifically alleges that Yuzu decrypts Nintendo\u2019s encryption to allow other users to run Switch games on non-Switch devices, such as PCs and Android devices.[9]<\/a> “Nintendo is still basically taking the position that emulation itself is unlawful\u201d and should the Rhode Island district court agree, any existing legal protections surrounding emulators may be eroded.\u00a0[10]<\/a> Because Nintendo\u2019s argument is focusing on attacking the mechanics of what makes Yuzu\u2019s emulation (and all forms of emulation), a decision in favor of Nintendo may disrupt the chain of things that makes emulation work, both practically and legally speaking. [11]<\/a><\/p>\n This is not the first-time technology and its capacity for piracy have raised legal concerns. In 1984, Universal sued Sony, alleging contributory copyright infringement, for their sale of the Betamax, a video cassette recorder (VCR) that allowed the consumer to record things for the purpose of watching them later.[12]<\/a> What emerged was what became known as the \u201cSony defense\u201d: when a device is capable of substantial non-infringing uses, respondents’ sale of the device to the general public does not constitute copyright infringement. [13]<\/a> This is not to say, however, that all defendants who produce technology capable of infringement are immune. Over 30 years after the Sony<\/em> decision, imposed somewhat of a limitation to this seemingly impenetrable defense: the Grokster<\/em> limitation.[14]<\/a> Pre-streaming services as we know them today, Grokster and StreamCast were peer-to-peer file sharing systems used to illegally share music files online.[15]<\/a> Motion picture studios, recording companies, songwriters, and music publishers filed suit against these companies alleging secondary infringement by knowingly and intentionally distributing software that would allow users to reproduce and share copyrighted works in violation of the Copyright Act.[16]<\/a> \u00a0In their decision, the Court made an important distinction; a defendant may be held liable for secondary infringement if it provides a device or technology with the intent of promoting the use of the technology to directly infringe copyrighted works.[17]<\/a> Evidence of Grokster and StreamCast\u2019s intent was the difference between this case and the Sony<\/em> case.[18]<\/a><\/p>\n Though neither Sony<\/em> nor Grokster<\/em> are mentioned in Nintendo\u2019s complaint, it is quite likely as the suit progresses, both the defense and limitation will come to the forefront. If precedent is clear, should Nintendo be able to prove Tropic Haze intentionally and knowingly distributed technology to allow its consumers to infringe on Nintendo\u2019s copyright, the future of emulation technology becomes bleaker than ever.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n Image Source: https:\/\/supermario.nintendo.com\/assets\/img\/explore\/outfits-business.jpg<\/p>\n [1]<\/a> What is a Device Emulator?, <\/em>Adjust, https:\/\/www.adjust.com\/glossary\/emulated-devices#the-definition-of-device-emulator (last visited Mar. 2, 2024).<\/p>\n [2]<\/a> See id.<\/em><\/p>\n [3]<\/a> Id. <\/em><\/p>\n [4]<\/a> Jacob Roach & Jesse Lennox, The Best Console Emulators (NES, SNES, Genesis, and more) in 2023, <\/em>DigitalTrends (Nov. 28, 2023), https:\/\/www.digitaltrends.com\/gaming\/best-emulators\/.<\/p>\n [5]<\/a> What is a Device Emulator, supra <\/em>note 1.<\/p>\n [6]<\/a> Roach & Lennox, supra<\/em> note 4.<\/p>\n [7]<\/a> Compl., Nintendo of Am. Inc. v. Tropic Haze LLC, No. CV 24 00082 (D. R. I. 2024) \u00b6 6.<\/p>\n [8]<\/a> Id. <\/em>at 2.<\/p>\n [9]<\/a> Id. <\/em>at 5.<\/p>\n [10]<\/a> Kyle Orland, How Strong is Nintendo\u2019s Legal Case Against Switch-emulator Yuzu?, <\/em>ARSTechnica (Feb. 27, 2024, 11:32 PM), https:\/\/arstechnica.com\/gaming\/2024\/02\/how-strong-is-nintendos-legal-case-against-switch-emulator-yuzu\/.<\/p>\n [11]<\/a> Id. <\/em><\/p>\n [12]<\/a> Sony Corp. of Am. v. Universal City Studios, Inc. , 464 U.S. 417 (1984).<\/p>\n [13]<\/a> Id. <\/em>at 442.<\/p>\n [14]<\/a> MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).<\/p>\n [15]<\/a> Id. <\/em>at 920.<\/p>\n [16]<\/a> Id. <\/em>at 920\u201321.<\/p>\n