First, let's be clear: emulation is legal, as Koji Nishiura, the general manager of Nintendo's intellectual property department, acknowledged. He was speaking at an eSports Festa conference in Tokyo this week, alongside his counterparts from Capcom, Sega and Konami.
Minimal tolerance
The head of the Japanese manufacturer, which has just unveiled the Switch 2, thus declared that "emulators themselves are not considered illegal". To say otherwise would be a bit much, given that retro games on Nintendo Switch Online (NSO), the company's subscription-based offering, work with emulators developed internally.
However, Koji Nishiura also points out that "their use can make them illegal". Indeed, if an emulator contains code protected by copyright, it is therefore guilty of copyright infringement. "An emulator that disables security mechanisms, such as encryption, may violate the Unfair Competition Prevention Act in Japan. In other countries, this would probably be a copyright violation," he specifies.
These stories of "stolen" code and disabling security measures are often at the heart of Nintendo's threats of legal action against emulator developers. Two years ago, Nintendo successfully pressured Valve to refuse the Dolphin emulator (GameCube, Wii) in Steam. The software contains a key that allows you to "unlock" Wii games. Dolphin’s creators claim they’re not breaking any laws, and the emulator is available on many platforms.
Last year, Nintendo successfully got the developers of Yuzu and Ryujinx, Switch emulators, to stop working on and distributing the software. The line is blurrier when it comes to Switch emulators, since the console and its games are still on sale. While gamers should be able to create copies of their purchased games for preservation purposes, it’s well known that pirated ROMs of all Switch games, including the latest releases, are actually circulating.
Koji Nishiura also states that “if an emulator includes links to sites that allow pirated games to be downloaded, this constitutes copyright infringement [under Japanese law].” These statements clarify Nintendo's position on emulation, but they are hardly surprising: while the company admits the legality of emulation (it has no choice), it will do everything to protect its interests.
Source: Denfaminicogamer
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