Background information
Nintendo sues Yuzu – what this could mean for emulators
by Florian Bodoky
Is playing «Zelda: Tears of the Kingdom» on an emulator illegal?
15.5.2023
Translation: Patrik Stainbrook
The new «Zelda» is here, exclusive to the Nintendo Switch – in theory. The game already runs on PC emulators. A legal expert explains the legality of this in Switzerland.
A full two weeks before its official launch, «The Legend of Zelda: Tears of the Kingdom» appears on file-sharing networks. Twitch streams quickly ensue – Nintendo’s draconian takedown notices hot on their heels. The Japanese company is demanding U.S. courts ban Discord servers that publish game content and that the names of leakers be made public.
Emulators are also a thorn in Nintendo’s side. These programs allow console games to be played on other devices such as PC. That’s exactly what’s happening with the new «Legend of Zelda: Tears of the Kingdom». It’s why manufacturers of emulators as well as tools necessary for emulation are on the hit list.
While the legality of an illegally acquired game quickly becomes evident two weeks before launch, things get murkier when it comes to emulators and ROMs. I asked lawyer and digital law expert Martin Steiger for more on the topic.
Are ROMs and emulators legal?
Martin Steiger. Lawyer: I assume emulators are legal for individual users in Switzerland. In my view, you won’t get in trouble for making a copy of games you buy yourself to use in an emulator either. On the other hand, the download itself is illegal.
Isn’t it the case that in Switzerland, downloading movies, series, etc. is legal, but uploading isn’t?
In Switzerland, downloading copyrighted works generally falls under permissible private use. This applies, for example, to TV series or music. Software is a major exception. Creating individual backup copies of software, on the other hand, is always permissible.
Source: Nintendo
Nintendo is also cracking down on the tools needed to bypass copy protection. What’s the legal situation there?
Nintendo is known for an aggressive approach to copying games. In principle, Swiss law also prohibits the circumvention of effective technical measures for patent protection. However, there is one major exception. For legally permitted uses, you may bypass copy protection. This includes backup copies of software.
So just because I bought a game or console, I can’t automatically assume that I can do whatever I want with it?
Buyers are allowed to do almost anything they want with their console – within the usual limits. A console, for example, doesn’t belong in general household waste, but must be disposed of as electronic waste. And anyone slamming the console against the ground should be careful not to cause personal injury or additional property damage.
However, the console is merely an object. Its value consists of the software that runs on it. Nintendo sets factual and contractual boundaries here. Where these boundaries lie is a matter of controversy among lawyers. Anyone using a Nintendo console must ultimately accept Nintendo’s terms and conditions, refrain from using it, or switch to alternative options.
Source: Nintendo
What about laws on emulation and ROMs internationally? What happens if Nintendo wins a lawsuit in the U.S.? How do these laws find their way into Switzerland?
In copyright law, the so-called country of protection principle applies. The applicable copyright law is always that of the country in which a legal issue is discussed. American law or American rulings on copyright therefore have no direct impact on the legal situation in Switzerland. Indirect effects do exist, however, as relevant sources are mostly located abroad or on U.S. Internet infrastructure.
The market for remakes, remasters or re-releases of old games on new devices is growing. Do you think this will lead to stricter regulations regarding emulation?
The legal situation is clear enough. I therefore doubt there’s sufficient reason to tighten copyright law. Copyright law is already very restrictive today. Companies such as Nintendo would be smart to ride this trend and benefit financially. Unfortunately, the content and game industry has repeatedly shown itself incapable of taking money that is literally sitting in front of them. Questionable providers often jump into this gap.
Philipp Rüegg
Senior Editor
Philipp.Rueegg@digitecgalaxus.chBeing the game and gadget geek that I am, working at digitec and Galaxus makes me feel like a kid in a candy shop – but it does take its toll on my wallet. I enjoy tinkering with my PC in Tim Taylor fashion and talking about games on my podcast http://www.onemorelevel.ch. To satisfy my need for speed, I get on my full suspension mountain bike and set out to find some nice trails. My thirst for culture is quenched by deep conversations over a couple of cold ones at the mostly frustrating games of FC Winterthur.
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