Nintendo Hits Circumvention Tool Linkers With DMCA Trafficking Violations
3/14/2024 by Andy Maxwell
In the wake of its one-week lawsuit targeting the Yuzu Switch emulator, Nintendo is back to clean up the house. The company has just shut down around 30 GitHub repos offering circumvention tools with attempts to evade liability given short shrift. One Nintendo takedown notice makes it clear that, even when people link to a third-party site that hosts tools available via different links, it still amounts to trafficking in circumvention devices under the DMCA.
It took less than a week for
Nintendo’s lawsuit against the company behind the Yuzu Switch emulator to have the desired effect.
After agreeing to hand over
$2.4m to Nintendo while complying with the terms of a broad injunction, Tropic Haze LLC evaporated in all but name and its developers drifted away into the night, apologetic and presumably penniless. At least, that’s what the paperwork and subsequent announcement implied, give or take.
Nintendo: We’re Back
With plenty of time in the interim to clone the Yuzu repo, many people did, purely for old times’ sake. Others still involved with projects related to Switch hacking and emulation had decisions to make, at least based on the theory that things had somehow changed. Some took evasive action, others took steps towards limiting liability, some appeared to do nothing; the usual mixed bag of responses following a big shutdown event.
That Nintendo was not too far away comes as zero surprise. Among the targets this week were over 25 GitHub repos offering Sigpatch-Updater, a tool to update SigPatch files created by developer iTotalJustice. In conjunction with a modded console, SigPatches bypass signature verification when games are downloaded digitally, a red line for Nintendo.
“The necessity of SigPatches to operate pirated copies of Nintendo’s video games is widely discussed in groups dedicated to modifying (hacking) the Nintendo Switch console,” Nintendo’s lengthy DMCA takedown notice reads.
“For example, [redacted by GitHub], a site that instructs users how to modify their Nintendo Switch console, states that ‘Signature patches or SigPatches allow your device to bypass signature checks performed by {private} for installed titles,” Nintendo notes, before adding the following:
Trafficking in circumvention software, such as SigPatches, violates the Digital Millennium Copyright Act of the United States (specifically, 17 U.S.C. §1201) (the “DMCA”), and infringes copyrights owned by Nintendo.
Nintendo Gets Reacquainted With iTotalJustice
Back in the summer of 2022, a previous
set of DMCA notices included one that targeted a repo operated by iTotalJustice. Before it was taken down, the repo contained actual SigPatches and Nintendo makes the same allegation here, albeit with additional detail that broadens the scope beyond actual hosting.
“With the iTotalJustice repository reported in this current notice, iTotalJustice is attempting to evade Nintendo’s enforcement efforts by providing SigPatches via a link to a third-party website ({private}), rather than including SigPatches in the repository itself,” Nintendo writes.
“The link is accompanied by the statement ‘The patches are downloaded from a new host. Huge thanks to them!’ Several of the forks reported in this notice also link to the third-party website {private} to provide SigPatches.”
According to Nintendo, a hyperlink posted to a website that links to another website (not even to the SigPatches themselves), which in turn offers the SigPatch files for download, is illegal under the DMCA when the linker demonstrates knowledge and intent.
“Linking to circumvention software is considered ‘trafficking’ in violation of the DMCA where, as here, the party responsible for the link (a) knows that the offending material is on the linked site, (b) knows that the linked material is circumvention technology, and (c) maintains the link for the purpose of disseminating that technology,” the company explains, citing
17 U.S. Code § 1201.
Takedown Notice Targets Lockpick
A second notice targets a piece of software known as Lockpick. This circumvention tool bypasses Nintendo’s security (Technological Protection Measures, or TPM) on the Switch console, providing access to cryptographic keys, including product keys, which are then decrypted and extracted.
This allows pirated Switch games to be played on modified consoles or if users prefer, on emulators like Yuzu. Nintendo states that Lockpick is illegal under 17 U.S.C. §1201 and those who facilitate access to it, under the conditions previously outlined for SigPatches, similarly traffic in circumvention software, contrary to the DMCA.
These won’t be the last notices of their type from Nintendo and another Yuzu-style lawsuit can’t be ruled out either. In an article
published by Ars earlier this week, the developers behind apparent Yuzu successor ‘Suyu’ outlined a few of their lawsuit-avoidance strategies.
After confirming that Suyu is pronounced “sue-you (wink, wink)” the strategy as outlined doesn’t really contain anything that might discourage a fairly litigious Nintendo even slightly. Having read the
Contributor License Agreement, it can’t be ruled out that the people behind this have a dark sense of humor.
Nintendo’s notices are available here and here
