Some fallout from the early leak of The Legend of Zelda: Tears of the Kingdom appears to be taking place. As players are loading the game into emulators and playing them unofficially on their computers, prior to the launch date, Nintendo is taking action to prevent that from happening. Lockpick and Lockpick_RCM are homebrew tools that allow users to dump unique keys from their Nintendo Switch console, which are required for numerous Switch hacking-related programs, including the Ryujinx and Yuzu Switch emulators. While Lockpick has been around for years, Nintendo has reportedly decided to go after it, by issuing a DMCA takedown to the GitHub project page, igniting concern and discussion within the community.

At the time of writing, Lockpick_RCM's repository is still active, it could be due to GitHub providing a grace period following a DMCA notice. Twitter user Simon Aarons was made aware of the takedown, after forking Lockpick, and allegedly receiving an email from GitHub, on behalf of Nintendo of America's legal team, who asserts that Lockpick is "circumvention software that infringes Nintendo’s intellectual property rights. Specifically, the reported repository provides Lockpick to users. The use of Lockpick with a modified Nintendo Switch console allows users to bypass Nintendo’s Technological Measures for video games; specifically, Lockpick bypasses the Console TPMs to permit unauthorized access to, extraction of, and decryption of all the cryptographic keys, including product keys, contained in the Nintendo Switch. The decrypted keys facilitate copyright infringement by permitting users to play pirated versions of Nintendo’s copyright-protected game software on systems without Nintendo’s Console TPMs or systems on which Nintendo’s Console TPMs have been disabled. Trafficking in circumvention software, such as Lockpick, violates the Digital Millennium Copyright Act of the United States (specifically, 17 U.S.C. §1201), and infringes copyrights owned by Nintendo."

Shortly after this, Skyline Emulator, a Switch emulator for Android devices, made the decision to shut down development, via a post on their Discord Server. Since you need the keys dumped from Lockpick in order to run Skyline, the team behind the emulator is concerned that it means Nintendo will target them for also violating their copyright.

It is with great sadness that we bring you this news. Recently, Nintendo has issued a DMCA takedown notice against Lockpick RCM which will likely come into effect on Monday, Lockpick is a core part of legally dumping keys from the Switch. They claim that it circumvents their copy protection (TPMs) and therefore violates their copyright. We find ourselves in a position where we are potentially violating their copyright by continuing to develop our project, Skyline, by dumping keys from our own Switches.

The Skyline team will be making their incomplete source code public, at the very least, and will keep the emulator's GitHub page active. Other homebrew projects are rumored to have been hit with DMCA notices as well. Ryujinx's emulator team stated that they will not be shutting down, following worries after Skyline.

 

[Hayato213]

Keys can't be copyrighted, which is why they introduced the DMCA. Telling someone how to get hold of keys, or distributing something that can get hold of keys, is illegal. Atmosphere is illegal also.

DMCA has been tested in court, multiple times. All WIPO countries have enacted similar laws to the DMCA.

Atmosphere isn't illegal.

 

[Zumoly]

They could easily get another successful console out within a year. Just give people a more powerful Switch. Maybe throw in the usual unnecessary gimmick and let the games do the rest.

But I have a feeling they are going to not play it safe and center their next console around said gimmick, whatever it may be.

I don't wanna shelve my Switch yet. Besides I don't get why people are centering everything around graphics and performance these days. I believe even more great games can be developed for the console.

For the lawsuits, I would rather blame the leakers and emulator devs cause they made so blatant and that is bad for business you know!

 

[Axido]

I don't wanna shelve my Switch yet. Besides I don't get why people are centering everything around graphics and performance these days. I believe even more great games can be developed for the console.

I'd rather call it "keeping things smooth". I don't mind playing BotW and TotK in 720p in handheld mode as the gameplay loop itself is satisfying to me. Also, a good art style doesn't need state-of-the-art hardware to shine. But goddammit, I hate it when games can't even reach 30fps consistently.

I'd agree with you, but there are Switch games where the lack of processing power clearly shows.

 

[ertaboy356b]

Blame moronic "game journalists" like the Kotaku ones for heavily advertising Nintendo Switch emulators and new Nintendo games leaks emulation.

You mean youtubers

 

[Dungeonseeker]

This is highly dependent on jurisdiction, but many forms of modification of copyrighted software are permissible so long as they are for personal use. DMCA features appropriate exceptions, and any licensing terms that are in violation of your rights as a consumer are automatically null and void. This is a complicated subject, to be sure, but you’re splitting hairs over an analogy - of course it’s not perfect. I very much doubt Microsoft would have much of an issue with a user attempting to crack their own Bitlocker so long as they’re not engaged in illegal activity while they’re at it.

I'm really not sure you can say that as a fact. First & TBC, I'm actually not disagreeing with you on principle, I actually agree with much of what you are saying, but...

Homebrew and console modification is a huge mess. Breaking DRM is illegal in the US (afaik pretty much only in the US) however the laws were written in 1997 and intended to cover analog audio and video devices, specifically VHS, Betamax, 8mm film and cassettes . [Source]

Thing is though, while everyone (except Nintendo) seems happy with the status quo, its never actually been tested in a legal capacity, not properly. Sony lost to Bleem! which was a precedent that covers emulation but has anybody actually defended themselves against copyright/breaking DRM for creating and distributing OS homebrew FW?

Other than Gary Bowser who got fisted by Nintendo because they were selling DRM bypassing devices its never happened and until it does the correct answer is "grey area".

Lets just hope we don't find out, I have a suspiscion Nintendo are gonna go ham in the next few months, I wouldn't be surprised if they try to go after Atmosphere, Yuzu & Ryujinx simply because they have enough money to bury them all in court on legal fees. Nintendo are threatened right now, a new Switch is not even close, it seems like they scrapped one upgrade already and now handhelds are emerging that destroy the Switch so badly they can emulate the thing and get better performance.

 

[Foxi4]

I'm really not sure you can say that as a fact. First & TBC, I'm actually not disagreeing with you on principle, I actually agree with much of what you are saying, but...

Homebrew and console modification is a huge mess. Breaking DRM is illegal in the US (afaik pretty much only in the US) however the laws were written in 1997 and intended to cover analog audio and video devices, specifically VHS, Betamax, 8mm film and cassettes . [Source]

Thing is though, while everyone (except Nintendo) seems happy with the status quo, its never actually been tested in a legal capacity, not properly. Sony lost to Bleem! which was a precedent that covers emulation but has anybody actually defended themselves against copyright/breaking DRM for creating and distributing OS homebrew FW?

Other than Gary Bowser who got fisted by Nintendo because they were selling DRM bypassing devices its never happened and until it does the correct answer is "grey area".

Lets just hope we don't find out, I have a suspiscion Nintendo are gonna go ham in the next few months, I wouldn't be surprised if they try to go after Atmosphere, Yuzu & Ryujinx simply because they have enough money to bury them all in court on legal fees. Nintendo are threatened right now, a new Switch is not even close, it seems like they scrapped one upgrade already and now handhelds are emerging that destroy the Switch so badly they can emulate the thing and get better performance.

The DMCA (or the copyright system in general) is concerned with illegal distribution of copyrighted works - modification for personal use is not its focus as it is exceedingly difficult to prove damages resulting from such activity. That’s the reason why Apple lost the war over Jailbreaking and automakers lost the war over “car hacking”.

https://www.wired.com/2010/07/feds-ok-iphone-jailbreaking/
https://www.theverge.com/2015/10/27/9622150/dmca-exemption-accessing-car-software

Consoles were not as lucky, but you could argue that that’s not what’s happening - you’re extracting a unit-specific key, and the law has an exemption that permits interoperability - §1201(f) states:

Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.

If you remember Sony vs. Hotz, the two parties chose to settle out of court, and one of the claims was specifically a violation of §1201. Now, we can all play armchair lawyer, but the reason why Hotz was in “hotz water” (ha!) wasn’t so much that he was digging in firmware, but because he posted the keys and decrypted information publicly.

https://en.wikipedia.org/wiki/Sony_Computer_Entertainment_America,_Inc._v._Hotz

The Copyright Office regularly reviews section exemptions and, if anything, things are moving in the right direction for console mods. Nintendo is, somewhat unwittingly, putting a spotlight on the issue. Exemptions are already available for archivists as soon as a given platform is no longer supported - the same olive branch is yet to be extended to individuals, but things are-a-changing.

https://www.vice.com/en/article/wnx...lbreak-game-consoles-but-gamers-arent-allowed

In any case, when it comes to Lockpick, you’re not supremely interested in circumventing copy protection on the unit itself - that’s not what you’re trying to achieve. What you’re actually doing is extracting a (likely randomly generated) string that allows for the operation of another piece of software on another machine. It sure would be an interesting lawsuit, and Bleem! v. Sony would *definitely* come up in the proceedings as that’s the legal precedent regarding emulation. Whether the court would look kindly on Lockpick through the lens of the interoperability exception is up to our imagination - I’m no legal scholar, but it’s certainly not black and white.

 

[JeepX87]

Lets just hope we don't find out, I have a suspiscion Nintendo are gonna go ham in the next few months, I wouldn't be surprised if they try to go after Atmosphere, Yuzu & Ryujinx simply because they have enough money to bury them all in court on legal fees.

It would be more trouble and embarrassing for Nintendo if they went after Atmosphere and it means hacking could be more widespread and Nintendo wouldn't able to get under control.

Nintendo are threatened right now, a new Switch is not even close, it seems like they scrapped one upgrade already and now handhelds are emerging that destroy the Switch so badly they can emulate the thing and get better performance.

I don't think that Nintendo is threatened and there are over 100 millions Switch sold and a lot of games sold, and they are actually make money on Switch, first party games, revenues from Mario film, Mario theme parks, amiibo sales and others, and Nintendo has a lot of fans.

but... Nintendo's worst fear is loss of third party support if piracy is rampant and they have to rely on DMCA to show that they are doing job to cracking down on piracy to ensure that third party companies continue to make or port games to Switch.

I think that piracy is accounted about less than 5% of Switch and vast majority of customers have no idea if Switch is hacked or not.

It is best interest for Nintendo to court their fans rather than viciously attacking on pirates that would waste of Nintendo's times.

 

[Dungeonseeker]

The DMCA (or the copyright system in general) is concerned with illegal distribution of copyrighted works - modification for personal use is not its focus as it is exceedingly difficult to prove damages resulting from such activity. That’s the reason why Apple lost the war over Jailbreaking and automakers lost the war over “car hacking”.

https://www.wired.com/2010/07/feds-ok-iphone-jailbreaking/
https://www.theverge.com/2015/10/27/9622150/dmca-exemption-accessing-car-software

Consoles were not as lucky, but you could argue that that’s not what’s happening - you’re extracting a unit-specific key, and the law has an exemption that permits interoperability - §1201(f) states:



If you remember Sony vs. Hotz, the two parties chose to settle out of court, and one of the claims was specifically a violation of §1201. Now, we can all play armchair lawyer, but the reason why Hotz was in “hotz water” (ha!) wasn’t so much that he was digging in firmware, but because he posted the keys and decrypted information publicly.

https://en.wikipedia.org/wiki/Sony_Computer_Entertainment_America,_Inc._v._Hotz

The Copyright Office regularly reviews section exemptions and, if anything, things are moving in the right direction for console mods. Nintendo is, somewhat unwittingly, putting a spotlight on the issue. Exemptions are already available for archivists as soon as a given platform is no longer supported - the same olive branch is yet to be extended to individuals, but things are-a-changing.

https://www.vice.com/en/article/wnx...lbreak-game-consoles-but-gamers-arent-allowed

In any case, when it comes to Lockpick, you’re not supremely interested in circumventing copy protection on the unit itself - that’s not what you’re trying to achieve. What you’re actually doing is extracting a (likely randomly generated) string that allows for the operation of another piece of software on another machine. It sure would be an interesting lawsuit, and Bleem! v. Sony would *definitely* come up in the proceedings as that’s the legal precedent regarding emulation. Whether the court would look kindly on Lockpick through the lens of the interoperability exception is up to our imagination - I’m no legal scholar, but it’s certainly not black and white.

My concern is purely based of the fact Nintendo just don't seem to give a fuck about the law anyway. They seem to be getting increasingly spiteful and they have enough money and power to bury a project regardless.

Kinda like how Bleem! won then ended up getting bought out by Sony anyway because Sony bankrupt them in legal fees.

 

[Foxi4]

My concern is purely based of the fact Nintendo just don't seem to give a fuck about the law anyway. They seem to be getting increasingly spiteful and they have enough money and power to bury a project regardless.

Kinda like how Bleem! won then ended up getting bought out by Sony anyway because Sony bankrupt them in legal fees.

The Pyrrhic victory of Bleem! is why we have emulators on the Play Store/App Store today. In fact, I’d argue that the prevalence of emulation allowed the industry to develop in a previously unexpected fashion. We’re surrounded by virtual machines, sandboxes and emulated environments - you could say that none of that would’ve been the case if Bleem! lost and emulation was deemed illegal, particularly for commercial purposes. There wouldn’t be billions of dollars of the software industry backing such endeavours, and we’d live in a very different world. Nintendo’s approach is short-sighted and stupid - they actively benefit from emulation by selling emulated games on their own marketplace. Every action has an equivalent and opposite reaction, and this approach will come back to bite them sooner or later. Sony learned this in the late 90’s and early 00’s, Nintendo is learning it now. They’re inviting the ire of those who feed them, and they already can’t keep their servers secure to save their lives. If they want every single release they ever make to leak weeks ahead of release, that’s exactly how you do that. It’s greed, plain and simple - people should’ve realised that when they went after YouTube monetisation, or even earlier than that.

 

[smf]

Atmosphere isn't illegal.

Sure, other than violating DMCA and copyright law.

 

[Hayato213]

Sure, other than violating DMCA and copyright law.

SX OS does not Atmosphere since there is no patches given by SciresM to run games.

 

[BerserkLeon]

Of course Skyline would be the sacrificial lamb/casualty caught in Nintendo's crossfire while Nintendo's on their scorched earth campaign, imposing their will w/ the supposed threat of litigation and bullying w/e entity that appears to encroach on their IPs regardless of how little of an impact they cause... Fuq Nintendo ‍♂

Skyline isn't a sacrificial lamb. They wanted out of the scene and wanted to save face. Simple as.
Yuzu is still around, right? Ryuji wasn't taken down, right?
Skyline was worried they'd get dmca'd too, and if they did, so what?
they did not get dmca'd. They left of their own will because they didn't want to work on it anymore.

There's that precedent of Bleem! vs Sony that has kept many if not all emulators safe from litigation.

 

[smf]

SX OS does not Atmosphere since there is no patches given by SciresM to run games.

SciresM disassembles Horizon and then implements it in Atmosphere, as he does both then it's not a clean room re-implementation.

Also distributing fusee is illegal, as was sept (but I haven't looked lately to see what that was replaced with).

The piracy patches on gbatemp haven't been taken down either. So nintendo not taking things down, doesn't mean they are legal.

 

[impeeza]

SciresM disassembles Horizon and then implements it in Atmosphere, as he does both then it's not a clean room re-implementation.

Also distributing fusee is illegal, as was sept (but I haven't looked lately to see what that was replaced with).

The piracy patches on gbatemp haven't been taken down either. So nintendo not taking things down, doesn't mean they are legal.

yes the patches already receive a DCMA notice, was the iJustice repo.

 

[smf]

yes the patches already receive a DCMA notice, was the iJustice repo.

the tools to generate patches is still up here, you can get patches all over the place.

 

[impeeza]

the tools to generate patches is still up here, you can get patches all over the place.

yeah, because big n has not put they eyes on that tools, the "youtube" tutorials have not links directly to them.

 

[TomSwitch]

I'd agree with you, but there are Switch games where the lack of processing power clearly shows.

You forgot incompetence or don't fucking care to do it properly which shows more prominently on Switch as the HW is more constraining.

 

[Kioku]

You forgot incompetence or don't fucking care to do it properly which shows more prominently on Switch as the HW is more constraining.

The hardware is the throttle, it has been since release. Even the most optimized games really don’t run all that great in comparison to the other platforms. I haven’t bought a game on Switch since the D/P remakes released. I really want Metroid and possibly TotK, but I’m tired of being limited. Graphics/FPS don’t make the game, but the “lack of” can for sure ruin the experience.

 

[Zajumino]

Nintendo don't take down all rom sites either, they tend to go after ones that make money.

It's a question you should direct at Nintendo

My implication was that Nintendo is not confident they can do so successfully.

Rom sites are not a good comparison, because some (probably most) exist outside of the reach of Nintendo.

SciresM disassembles Horizon and then implements it in Atmosphere, as he does both then it's not a clean room re-implementation.

Also distributing fusee is illegal, as was sept (but I haven't looked lately to see what that was replaced with).

The piracy patches on gbatemp haven't been taken down either. So nintendo not taking things down, doesn't mean they are legal.

Are you saying Atmosphere is illegal because it is a copy of Horizon? You can't really say that for sure, because fair use exists. Like I said before, if Atmosphere was clearly illegal, it would have been taken down by now.

 

[TomSwitch]

The hardware is the throttle, it has been since release. Even the most optimized games really don’t run all that great in comparison to the other platforms. I haven’t bought a game on Switch since the D/P remakes released. I really want Metroid and possibly TotK, but I’m tired of being limited. Graphics/FPS don’t make the game, but the “lack of” can for sure ruin the experience.

You are always constrained, just your benchmark changes, don't look at anything other than from Nintendo would solve your problem.

If you had not seen anything NES would be heaven.

After seeing a good HDR screen everything else look pale and lifeless.

This kind of happiness is a choice. You CAN choose to be happy