When Nintendo sued the people behind Switch emulator Yuzu in February, the company knew that establishing certain facts would send the clearest possible message to those considering similar conduct.
The conclusion of that lawsuit declared that an emulator like Yuzu, that circumvents Nintendo’s technical measures, decrypts Switch games using unauthorized copies of Switch cryptographic keys, allowing games to be played on anything other than a Switch, violates copyright law.
Developing or distributing similar software, that ordinarily functions only when used with unauthorized copies of Nintendo cryptographic keys, for the purpose of circumventing Nintendo’s technical measures, is prohibited under § 1201(a)(2)(A) of the DMCA.
With development and distribution boundaries made clear and a $2.4m settlement in hand to clarify the consequences, a more difficult problem was yet to be addressed. How could a similar message be sent to the 99.9% of Switch emulator users who continue to play pirated games, share advice with the like-minded, and may feel the above holds no consequences for them?
Nintendo Sues EveryGameGuru
Filed at a federal court in Colorado on Wednesday, Nintendo’s complaint targets enthusiastic video gamer and Colorado resident, Jesse Keighin. According to Nintendo, Keighin streams gameplay on platforms including YouTube, Discord, Twitch, TikTok, Trovo, Kick, Vaughn, Dlive, Picarto, Nimo, Facebook, and Loco, under the alias EveryGameGuru.
“Defendant is a recidivist pirate who has obtained and streamed Nintendo’s leaked games on multiple occasions. Leaked games (sometimes referred to as ‘prerelease games’) are copyrighted video games which Nintendo has not yet publicly released,” the complaint begins.
The lawsuit claims that since 2022, Keighin has streamed ‘unauthorized gameplay’ from at least ten leaked Nintendo games before their official release, and more than fifty times in total.
To combat unauthorized distribution of the gameplay, Nintendo says it sent dozens of DMCA takedown notices to have Keighin’s streams removed. Due to multiple strikes, both YouTube and Twitch terminated Keighin’s channels, but Nintendo says that the gamer continued to “thumb his nose” at the company, and the law.
Taunting Nintendo, Monetizing Unauthorized Gameplay
On October 24, after unnamed platforms had shut down Keighin’s streams in response to Nintendo complaints, the gamer reportedly sent the company a letter in which he claimed to have “a thousand burner channels” to stream from and “can do this all day.”
The complaint further alleges that after Keighin’s monetized YouTube account was set to be shut down, he added a CashApp handle in order to profit from streaming Nintendo’s games.
Keighn’s streams didn’t simply feature gameplay from pre-release games, these were pirated pre-released games, played on a hacked Switch or an illegal emulator.
At this point, the groundwork established in the Yuzu case falls neatly to describe conduct alleged in this complaint as similarly illegal.
Every Step Requires or Supports Illegality
Nintendo says that Keighin uses emulators to play pirated copies of Switch games on his PC. When lawfully purchased, Switch games are authorized for use exclusively on Switch consoles. When copies of games are obtained illegally, technological measures prevent playback on Switch consoles.
“The use of emulators, which circumvent these technological measures, allow people such as Defendant to play pirated Nintendo Switch games — including leaked games — on PCs, Macs, and Android devices,” the complaint states.
As Nintendo claims it established in the Yuzu case, circumvention of technical measures, including through the use of unauthorized cryptographic keys to decrypt otherwise encrypted Switch games, is a violation of copyright law. Drilling further into the details, Nintendo says Keighin must’ve illegally obtained and then used so-called prod.keys, sourced from an illegal site or through the “unlawful hacking” of a Switch console.
Furthermore, since emulators that circumvent technological measures are prohibited, distribution of such emulators is a trafficking offense under the DMCA.
“In addition to streaming games from emulators, Defendant has also publicly posted links to those emulators — including ones called Yuzu and Ryujinx — thus trafficking in that unlawful software,” Nintendo adds. And it doesn’t stop there.
“In fact, Defendant has posted links to copies of [..] prod.keys, as well as the emulators themselves and repositories of pirated ROMs, further distributing all the necessary piracy tools to his viewers.”
The scope of Nintendo’s claims suggests that it intends to send a clear, unambiguous message to the 99.9%, that the action against Yuzu is very relevant indeed. That the company gets the opportunity to do that in one lawsuit, against a single defendant, is unexpected. But this is Nintendo, a company that has a pre-release spoiler problem it would also like to address.
Five Counts, Various Aspects of Copyright Law
Count One: Unauthorized Public Performance and Reproduction
Nintendo alleges that the defendant streamed its copyrighted games without authorization, including Mario & Luigi Brothership, Super Mario Party Jamboree, and Super Mario RPG. Nintendo states that this type of infringement is particularly serious because the games were “leaked” and streamed to the public using illegal copies before their official dates of release. Nintendo seeks maximum statutory damages of $150,000 for each work infringed.
Count Two: Contributory Infringement / Inducement
Nintendo says that since Keighin encouraged and facilitated infringement committed by his viewers, he is secondarily liable. He encouraged the use of illegal emulators, supplied links to ROM repositories, and provided links to other tools while encouraging his viewers to violate Nintendo’s copyrights. Nintendo seeks maximum statutory damages of $150,000 for each work infringed.
Count Three: Circumvention of Technological Measures
The game company says that Keighin used emulators such as Ryujinx and Yuzu to stream the games. Since both emulators allow users to play games on unauthorized devices by decrypting the games’ encryption, these tools are illegal. As a result, the defendant violated the anti-circumvention provisions of the DMCA. Nintendo seeks $2,500 for each act of circumvention.
Count Four: Trafficking in Circumvention Devices
Through the sharing of links to emulators like Yuzu and Ryujinx, and unauthorized copies of decryption keys, Keighin trafficked in circumvention technology, Nintendo says.
Promoting and encouraging use of these tools, which are designed to circumvent Nintendo’s technical measures, amounts to marketing infringing devices, in breach of the DMCA’s anti-circumvention provisions. Nintendo seeks $2,500 for each instance of trafficking.
Count Five: Trafficking in Circumvention Devices
The complaint also alleges that Keighin violated the DMCA by distributing software and keys designed to circumvent the technological measures protecting the company’s games. He provided direct links to emulators including Ryujinx, Yuzu, Suyu, and Sudachi, and provided links to prod.keys, Nintendo says.
These actions provided the means for the unauthorized reproduction and use of games by circumventing their technological measures. Highlighting both knowledge and intent, Nintendo claims the defendant willfully trafficked in circumvention devices. Nintendo seeks $2,500 for each instance of trafficking.
From: TF, for the latest news on copyright battles, piracy and more.
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