by Jesus Rubio*

* J.D. Candidate, 2026, Indiana University Robert H. McKinney School of Law—Indianapolis, Indiana; M.A. 2019, Biola University—La Mirada, CA; B.A. 2014, Biola University—La Mirada, CA. Thank you to my faculty advisor, professor Lea Bishop, for her support and guidance in writing this note.

Introduction

“If buying isn’t owning, then piracy isn’t stealing.”[1] The conclusion does not logically (or legally) follow from the premise, but it captures a growing concern over consumers’ rights and abilities to retain ownership and access to video games.[2] Games become digitally inaccessible for a variety of reasons, such as when developers are unable to renew licensing rights for a released game, or when games are exclusively available on a digital storefront and that storefront is permanently shut down.[3] The alternative—physical media—can be cost prohibitive depending upon the prices set by the second-hand market for the games themselves and the consoles required to play those games.[4] In response to the problem of availability and access, some consumers have identified piracy as a morally gray area, if not a moral imperative.[5] Others have championed the use of emulation as the solution to the larger issue of games preservation.[6]

The primary function of emulators is to make game software playable on multiple platforms without the limitation and restrictions of physical hardware. Emulators can achieve this by mimicking “the behavior of game hardware on a different platform.”[7] As a result, emulators are considered the “easiest and most cost-effective way to reissue games,” and an indispensable tool to preserve video games.[8] The unfortunate reality is that emulators are improperly used to pirate video games and avoid paying fair market value for commercial titles. Accordingly, the process of pirating video games through emulation implicates various rights of the copyright owner under copyright law.

The Ninth Circuit Court of Appeals stated “[w]e have already ruled that the emulator is not a violation of the copyright laws.”[9] The Court unequivocally held that emulators were fair use, re-affirming its decision in the seminal Sony v. Connectix case.[10] And yet, twenty-four years later, Nintendo succeeded in securing a settlement agreement against Tropic Haze LLC, the creator of the Yuzu emulator.[11] As part of the settlement agreement, Tropic Haze agreed to a permanent injunction and paid Nintendo $2,400,000.00.[12] Although the Yuzu case was not decided on the merits, the settlement raises serious doubts as to whether the holding of Connectix may be reasonably relied on today.

This Note argues that, despite the precedent of Connectix, emulators inevitably violate copyright laws. Part I of this Note provides an overview of the relevant copyright statutes and the policy reasoning behind the Digital Millennium Copyright Act (DMCA). Part II provides a legal analysis of emulation as it relates to fair use, circumvention, and contributory liability. This part argues that developers of emulators contributorily infringe on the exclusive rights of the copyright owner and breach the owner’s anti-circumvention right. Part III explores the intersection of copyright law and contract law and proposes an alternative argument to establish a § 1201 circumvention claim against emulation.

I. Overview of Copyright Law and Emulation

A. Copyright Law

Copyright owners have two broad rights. First, they have the exclusive rights to reproduce, distribute, publicly perform, display, and create derivative works.[13] It is an infringement of the owner’s copyrights to do any of the foregoing without authorization of the copyright holder.[14] Notwithstanding this section, it is not an infringement when “fair use” of the protected work is done “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”[15]

Second, copyright owners also have a separate anti-circumvention right under 17 U.S.C. § 1201.[16] The provisions are complex but can be broken down into two separate claims.[17] First, § 1201(a) prohibits the circumvention of technological protective measures (TPMs) that control access to a copyrighted work.[18] Second, § 1201(b)(1) prohibits trafficking in technology primarily designed to circumvent a TPM that protects the right of a copyright owner.[19] The right of a copyright owner “refers to traditional copyright infringement under § 106.”[20] To illustrate the distinction, a password is a quintessential example of a protective measure that controls access to a work under § 1201(a), but is not necessarily designed to protect against copyright infringement.[21] By contrast, the encryption embedded in a commercial DVD, such as the Content Scramble System (CSS), permits a purchaser to view the film while simultaneously preventing them from making unauthorized copies.[22] Because CSS does not restrict access to the work but instead protects the copyright owner’s exclusive right of reproduction under § 106, it is the type of technological measure contemplated by §1201(b)(1).

Taken together, both the exclusive rights under § 106 and the anti-circumvention right of § 1201 reflect Congress’s intent to “stimulate artistic creativity for the general public good.”[23] The exclusive copyrights under § 106 “offers creators and innovators a palpable incentive for undertaking risks and bearing costs, assuring them that they will receive a ‘bundle of rights’ in exchange for their productive efforts and output.”[24] Furthermore, the implementation of the anti-circumvention provisions under § 1201 provides an additional enforcement mechanism that “secures creative output” through the use of technological measures “such as encryption, authentication, anti-circumvention, and anti-counterfeiting measures and devices [that] thwart the appropriation of valuable content.”[25]

As robust as these statutory rights are, they are limited and qualified by various exceptions, including fair use,[26] reverse engineering,[27] and other specific exceptions that the Library of Congress grants every three years.[28] These exceptions reflect Congress’s desire to balance the twin goals of stimulating artistic creativity through exclusive copyrights and anti-circumvention rights, and promoting the public good by “ensuring access to consumers, users, and future creators.”[29] Whether Congress has struck the correct balance is a subject of continued heated debate.

B. Piracy and Copyright Policy

Every three years, the Librarian of Congress creates and renews regulatory exceptions to the anti-circumvention provision of § 1201(a) through rulemaking.[30] During this three year period, the Librarian of Congress receives recommendations from various advocacy groups who lobby for exceptions and makes official rulings on these recommendations.[31] The rulemaking proceedings provide a wealth of information and policy analysis weighing the arguments from both lobbyists seeking exemptions and copyright holders seeking to deny such exemptions. Piracy is a common theme that runs throughout the rulemaking proceedings. Piracy is a factor that the Copyright Office takes seriously and is often the basis for denial of requested exemptions.

Proponents of interoperability in the video game space have requested exemption from circumvention liability so that they can legally engage in research, repair, and homebrew (i.e., “independently developed”) activities.[32] In 2012, Electronic Frontier Foundation sought an exception for interoperability for the purpose of research and homebrew.[33] They complained that Sony, Microsoft, and Nintendo each implemented technological measures “that force console purchases to limit their operating systems and software exclusively to vendor-approved offerings.[34] The Register of Copyrights, the Director of the U.S. Copyright Office (the “Register”),[35] rejected their recommendation, finding that “even if proponents had satisfied their burden of establishing noninfringing uses,” the “record substantiated opponents’ assessment that in the case of video games, console jailbreaking leads to a higher level of infringing activity.”[36] In 2015, the issue of seeking an exception for installing “alternative operating systems” (i.e., “jailbreaking”) was raised again in a petition filed by Maneesh Pangasa.[37] Once again, the Register reaffirmed its 2012 position that the “circumvention of console restrictions—even when initially undertaken for salutary purposes—is inextricably linked to and tends to foster piracy.”[38]

The Librarian of Congress weighs piracy as an overriding policy consideration when determining whether to grant an exception to the anti-circumvention provisions. Congress seeks to balance the “copyright owners’ new anti-circumvention right with the public’s right to access the work.”[39] The purpose of the anti-circumvention provisions is to “promote the public’s right to access by allowing the Library to exempt circumvention of effective access control measures in particular situations where it concludes that the public’s right to access outweighs the owner’s interest in restricting access.”[40] Piracy abuse tends to outweigh the public’s right to access, even when the activity is non-infringing and the purpose of such circumvention is to promote interoperability.

The public has a right to access video games,[41] a right which has been significantly under-served.[42] Undoubtedly, emulation plays an indispensable role in preserving games and achieving this right of access. Debatably, the public’s right to access may outweigh the owner’s interest in restricting access, especially with respect to commercially unavailable retro video games.[43] However, the balance necessarily shifts in favor of the owner for commercial video games where the public’s right to access is not frustrated and the owner’s right to exploit his work would be impaired by large-scale reproduction.[44]

There is also an argument that the anti-circumvention provisions are so restrictive that they stifle creativity and technological advancement. The Register received a complaint that “the law surrounding fair use in the context of software-enabled everyday products is not more developed because of the fear of separate liability under section 1201 of the Copyright Act for circumventing technological protection measures.”[45] With respect to emulation, the “anti-emulation stances from the industry stunted the growth of the game reissue market at the time when it was becoming technologically viable.”[46] Even when regulatory exceptions to circumvention are granted for research purposes, the Librarian restricts it to the “physical premises of the eligible library, archives, or museum.”[47] In light of this, there is a compelling case that the anti-circumvention provisions have a chilling effect on the development of emulation software. Nevertheless, weakening the anti-circumvention right could have its own chilling effect by dissuading creators from creating content that is expensive to develop.

The Register stated that “[t]he evidence show[s] that video games are far more difficult and complex to produce than smartphone applications, requiring teams of developers and potential investments in the tens of millions of dollars.”[48] The DMCA is designed to “correct a ‘public goods’ problem in the production of art, music, software, and similar creative works,” especially where such goods are expensive to create and “easily copied once they have been created.”[49] Because video games are expensive to produce and easy to pirate through emulation, allowing exceptions to the anti-circumvention right that relate to the video games industry will likely have unintended consequences on the market for those video games and the creators who develop them, to the point that such works may “never be created in the first instance.”[50]

In sum, the anti-circumvention provisions of the DMCA are designed to encourage artistic creativity by providing a right against circumvention of measures that restrict access or protect the right of a copyright owner. These rights are necessary to combat piracy and unrestricted infringement. Congress counterbalances this right by permitting various exceptions. This statutory backdrop is necessary to understand the issue of whether emulation is “legal.”

II. Legal Analysis of Emulation

The process of developing and using an emulator to play video games on a different platform implicates various copyright laws and anti-circumvention provisions: (1) the development of an emulator through reverse engineering, (2) the multiple layers of encryption in the normal course of an emulator’s operation, and (3) the customer’s involvement in extracting and dumping the game files and cryptographic keys required for an emulator to function.[51] Copyright owners such as Nintendo employ various technological measures designed to prevent access and the unauthorized reproduction of their copyrighted work.[52] The question is whether the circumvention of these technological measures violates the anti-circumvention statutes or otherwise constitutes infringement.

A. Reverse Engineering and Fair Use

The typical method of developing an emulator entails reverse engineering, which is a method of “gaining access to the functional elements of a software program.”[53] Learning the functional elements of a software program is necessary to understand how a program works for purposes of making it compatible with a different platform.[54] This can be done in several ways, including “observing ‘the program in operation by using it on a computer;’ . . . performing a ‘static examination of the individual computer instructions contained within the program;’ and . . . performing a ‘dynamic examination of the individual computer instructions as the program is being run on a computer.’”[55] These methodologies “require that the person seeking access load the target program on to a computer, an operation that necessarily involves copying the copyrighted program into the computer’s random access memory or RAM.”[56]

Typically, these reverse engineering methods would violate the anti-circumvention provisions of the DMCA. Section 1201, however, provides an exception to legal protections against unauthorized access for reverse engineering under § 1201(f)(1), which states that a person may circumvent a TPM “for the sole purpose of identifying and analyzing . . . elements . . . necessary to achieve interoperability.”[57] This exception does not, however, sanction infringement; reverse engineering is exempt “to the extent any such acts . . . do not constitute infringement under this title.”[58] Accordingly, even if the DMCA provides for an exception of the intermediate copying of a program’s elements, it is still not permissible to make intermediate copies if such reproduction constitutes infringement. Such conduct must be justified by the doctrine of fair use.

The issue of whether such copying was fair use was the subject of Connectix.[59] In this case, the defendant sought to make Sony video games operable on the Virtual Game Station (VGS), an emulator capable of reading Sony video game CDs.[60] The issue was whether Connectix’s intermediate copying of Sony’s copyrighted basic input-output system (BIOS) to develop the VGS was fair use.[61] The Court held that such intermediate copying was fair use because its purpose and character was modestly transformative in that it created a new platform; the nature of the copyrighted work contained “unprotected functional elements” that required intermediate copying to access; and the economic loss to Sony was minimal since the VGS was a “legitimate competitor” and did not supplant the PlayStation console.[62]

Connectix therefore stands for the proposition that the process of developing an emulator through reverse engineering is fair use.[63] Moreover, there is not separate and independent liability under the anti-circumvention provisions of the DMCA. Although emulation undoubtedly entailed the circumvention of protective measures to analyze Sony’s BIOS, § 1201(f) makes an exception to reverse engineering. However, it is important not to overgeneralize the holding of Sony v. Connectix. Even if the intermediate copying a BIOS to develop an emulator is fair use, infringement may still be established through other legal doctrines.[64]

B. Reverse Engineering and Encryption

In addition to the process of developing an emulator, another technological consideration of emulation is the use and ongoing operation of the emulator once it has been developed. Copyright holders implement various TPMs to prevent access and copying, including multiple layers of encryption. The safe harbor of the reverse engineering exception extends not only to the intermediate copying of software to identify the elements of a program, but the ongoing circumvention involved in the normal course of the emulator’s operation.

In Nintendo’s case, there are three categories of technological measures. First, Nintendo games are “accompanied by an encrypted identifier,” which the Nintendo Switch console decrypts using a “cryptographic key to verify” that the file is authentic.[65] Second, the games themselves are encrypted and can only be decrypted and played by using a Title Key, and the Title Key has multiple encryptions which require multiple steps and different sets of keys to decrypt, which are collectively called “prod.keys.”[66] Third, the Nintendo Switch console “contains many technological measures, such as encrypted system signatures that are checked when the console boots.”[67] The console will only boot “if the console’s signature verifications confirm the console is authentic and authorized by Nintendo.”[68] Taken together, these TPMs represent the brick house that Nintendo has designed to “protect Nintendo’s and its licensees’ copyrighted games against unauthorized access and copying.”[69]

Nevertheless, § 1201(f)(2) provides an exception for the circumvention of Nintendo’s various encryptions insofar as the circumvention is necessary to achieve interoperability.[70] This provision indicates that interoperability can be achieved through any means necessary as long as three elements are satisfied: (1) the technology in question must be an independently created computer program, (2) the program must be for the purpose of interoperability, and (3) any circumventing methods used must not constitute an infringement.[71]

In light of these statutory requirements, the district court in Lexmark v. Static Control Components stated that “[s]ections 1201(f)(2) and (3) of the DMCA are not broad exceptions that can be employed to excuse any behavior that makes some device ‘interoperable’ with some other device.”[72] In Lexmark, the district court determined that the defendant could not take advantage of the exception in § 1201(f) because their microchips were not independently created computer programs.[73] Similarly, the court in Davidson v. Internet Gateway held that the exception in § 1201(f) could not protect the defendant because the purpose “of the . . . emulator was not to enable interoperability,” but to avoid restrictions imposed by the game.[74] Thus, in order for Yuzu to enjoy the benefits of the reverse engineering exception, it must satisfy each element of § 1201(f)(2).

First, it is undisputed that the Yuzu emulator is an independently created computer program. Second, the purpose of the Yuzu emulator is to enable interoperability, and it needs to apply the circumventing method of decrypting keys in order to achieve interoperability.[75] Third, Yuzu does not directly infringe Nintendo’s copyrights because there is no copying or reproduction of a copyrighted work involved apart from intermediate copying through reverse engineering, which has already been ruled as fair use.[76] Furthermore, decryption is strictly a circumventing method of gaining access and reading encrypted files, not a form of infringement.[77] At first blush, then, it would appear that Yuzu’s emulator commits no infringement and is protected by the reverse engineering exception.

Notwithstanding the fact that Yuzu does not directly infringe Nintendo’s copyrights, there is a strong argument for contributory infringement because Yuzu requires users to copy and supply the game ROM (i.e., the “digital copy of the game”)[78] and the prod.keys necessary to decrypt the ROM in order to operate the emulator.[79]

C. Contributory Liability and Infringement

The Supreme Court held that, although “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another[,] . . . [t]he absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”[80] This is the doctrine of secondary liability, which comprises two separate claims: contributory liability and vicarious liability. As the Supreme Court in Grokster explains, “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it.”[81] Naturally, there is no secondary liability without direct infringement.

There is direct infringement under the specific circumstances of Nintendo v. Tropic Haze LLC. Here, the defendant structured its emulation service so that users need to bring copies of the encrypted game ROM and the prod.key that unlocks the game ROM to make it playable on the emulator.[82] To extract the prod.key, users must either hack their Nintendo Switch console and dump the ROM and keys through a complex process,[83] or else download a copy of the ROM and keys from a third-party website.[84] As Nintendo explains, in order to use the Yuzu emulator to play Nintendo Switch games, “the user needs . . . to supply an unlawfully-obtained copy of the “prod.keys” . . . and an encrypted Nintendo Switch game ROM.”[85] By making a copy of a copyrighted game file, the user infringes the copyright owner’s exclusive right to “reproduce the copyrighted work in copies.”[86] Accordingly, Nintendo has a strong case for direct infringement on the part of the user who creates an infringing copy of the game.

The next question is whether Yuzu is secondarily liable for the user’s direct infringement. As mentioned previously, the process of copying the game ROM and the prod.keys is a complex process and requires a level of technological sophistication that ordinary persons do not have. Yuzu, understanding the complexity and anticipating that users would require assistance, provided a step-by-step guide walking users through the meticulous process of making copies of the prod.keys and game ROM.[87]

Here, Yuzu commits contributory infringement because its guide encourages infringement by instructing its users to make copies of the prod.keys and game ROM and dump them into the emulator. The Supreme Court stated that “[e]vidence of active steps taken to encourage direct infringement, such as advertising an infringing use or instructing how to engage in an infringing use,” could establish an affirmative intent to induce.[88] The instructions posted in Yuzu’s website fit the Supreme Court’s illustration of active inducement. Therefore, Yuzu commits contributory infringement because there is direct infringement on the part of users when they reproduce copies of the prod.keys and game ROM, and because Yuzu encouraged users to engage in such infringement.

Even if Yuzu had not published the instructions on its website, merely offering an emulator to the public arguably would have been sufficient to establish contributory liability. There are other emulators, such as Ryujinx, who provided instructions on how to dump the files into the emulation software—not on how to extract them.[89] Such a scheme fairs no better. Whether they published instructions on how to extract the prod.keys and game ROM or not, both Yuzu and Ryujinx offered their emulator to the public and made the extraction of the prod.keys and game ROM a condition precedent to the use of their software. This condition precedent functionally operates as an invitation to commit infringement. Although posting instructions on how to extract the prod.keys and game ROM might be more direct, assuming that the extraction has already been done does not dispel an affirmative intent to induce. Offering an emulation and making infringement a condition precedent to its use encourages infringement, even if such encouragement is indirect.[90]

Nintendo therefore has a strong claim against Yuzu for contributory liability. Users directly infringed Nintendo’s copyrights when they reproduced copies of the game ROM and prod.keys. Furthermore, Yuzu encouraged users to commit such infringement by providing a step-by-step guide on how to extract such copies on their website. Accordingly, Yuzu’s contributory liability for copyright infringement establishes the requisite nexus to infringement to render the reverse engineering exception inoperative. The reverse engineering exception only covers circumvention methods necessary to achieve interoperability “to the extent that doing so does not constitute infringement.”[91] The reproduction of copies of the game constitutes direct infringement on the part of the user for which Yuzu is contributorily liable. Therefore, Yuzu would not only be subject to separate claims of copyright infringement through the doctrine of contributory liability, but it would also be liable for violating the anti-circumvention provisions of the DMCA.

III. Contract Law and Reverse Engineering

A. Waiving the Reverse Engineering Exception through EULA

If developers of emulators were not contributorily liable for the direct infringement of users who copy the game ROM and prod.keys, they might still ultimately be in violation of the anti-circumvention provisions of the DMCA. Another possible way to remove the protections provided by § 1201(f) is through contract law. The reverse engineering exception is only a safe harbor to those who have “lawfully obtained the right to use a copy of a computer program.”[92] However, to lawfully obtain the right to use a copy of the Nintendo Switch software, a person must agree to Nintendo’s End User License Agreement (EULA).[93] But Nintendo’s EULA expressly prohibits reverse engineering.[94] The result is a Catch-22 situation.

On the one hand, if a developer unlawfully obtains a copy of Nintendo’s software, he may not claim the protections under the reverse engineering exception and becomes subject to liability for the violation of the anti-circumvention provisions. On the other hand, if he obtains a lawful copy, he waives his statutory right to reverse engineer under state contract law, the breach of which may lead to statutory damages.

This issue has likely not been litigated because the remedies for copyright infringement are preferable over remedies under contract law and statutory remedies for circumvention.[95] Under the remedies for infringement, copyright owners may not only elect between actual damages and profits or statutory damages when their rights are infringed,[96] they may also seek the remedy of “injunctive relief, seizure of infringing articles, and awards of costs and attorneys’ fees.”[97] Litigation strategies aside, it seems that copyright owners have the ability to gridlock users through contract law by requiring them to agree to their EULA. If their EULA prohibits reverse engineering, copyright owners can strengthen their anti-circumvention rights beyond the scope of protection under § 1201 through state contract law. The question is whether this contractual maneuver is legally permissible.

B. Circumvention Misuse

This issue of “weaponizing” state contract law has not been litigated as it relates to bolstering the anti-circumvention right, but it has been applied to copyright law as it relates to infringement. The idea that a copyright holder may not extend their copyrights through contract law for anti-competitive purposes is known as “the equitable doctrine of copyright misuse.”[98]

The seminal case on copyright misuse is Lasercomb America, Inc. v. Reynolds, where the Fourth Circuit held that “misuse of copyright is a valid defense” and “that Lasercomb’s anticompetitive clauses in its standard licensing agreement constitute misuse of copyright.”[99] Although an equitable doctrine of anticircumvention misuse is not judicially recognized, the same anti-trust concerns for allowing a defense for copyright misuse should similarly extend as a defense in situations where copyright owners seek to leverage the EULA to prevent users from taking advantage of the reverse engineering exception.[100] The issue is whether leveraging contract law to prevent reverse engineering is a form of anticircumvention misuse.

The answer depends on whether EULA prohibitions against reverse engineering stifles creativity and is anti-competitive in practice. The primary concern in Lasercomb was the abuse of either contract law or copyright law to remove competition and create a monopoly, but that is not necessarily the case for modern creators in a digital age of piracy. This is evident from circumstances of both Sega v. Accolade and Connectix, which are different than the Yuzu case in a critical respect: Accolade sought to make their physical game cartridges compatible with the Sega Genesis console,[101] and the Connectix emulator still required a user to physically “load a PlayStation game into the computer’s CD–ROM drive” to achieve interoperability.[102] In other words, unauthorized digital reproduction was not a concern because the emulators in both cases required the tangible, physical game cartridges or discs to operate. Accordingly, Sega’s and Sony’s attempt to sue defendants for reverse engineering looked more like the anti-competitive strategies in Lasercomb insofar as they sought to eliminate alternative emulation platforms from the market.

Today, the digitized landscape of modern computer programs, including the ability to reproduce copies of game ROM and decrypt them by extracting the cryptographic keys from video games and consoles, presents a piracy problem that was not the case more than twenty years ago. Piracy “has grown exponentially as an outgrowth of the [i]nternet, primarily because digitization of creative works makes them much easier to reproduce and disseminate on a large scale at virtually no cost.”[103] This “large-scale, unauthorized commercial reproduction and distribution of copyrighted works in competition with the legitimate copyright owner” is precisely what the anti-circumvention measures are seeking to defeat.[104]

This is exactly what happened in the Yuzu case. Nintendo alleged that before the official release of Zelda: Tears of the Kingdom on May 12, 2023, “[b]etween May 1 and May 10, Zelda: TotK was successfully downloaded over one million timesand downloads were attempted another million times.[105] The illegally downloaded copies were capable of being played in Yuzu, and over twenty percent of all the download links for the game specifically referred to emulation in the link title, URL, or filename, many of which specifically referred to Yuzu.”[106] This means that many users of the Yuzu emulator were dumping illegally obtained copies of the game ROM and prod.keys that they did not extract themselves because they could not yet purchase and acquire the game.

EULA restrictions on reverse engineering in the modern emulation context would not be “to protect a business model” or defeat competition, but would instead primarily serve “bona fide copyright interests” because they aim to protect against the unauthorized mass reproduction of the copyrighted material.[107]

Furthermore, there is substantial precedent that courts would generally uphold the terms of a EULA that restricted reverse engineering on principles of freedom of contract. In Davidson, the defendants asserted the copyright misuse defense, arguing that the EULA restrictions “on reverse engineering, matchmaking, and commercialization” was a form of copyright misuse and anti-competitive on its face.[108] The court disagreed with the defendant, holding that “private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act.”[109]

Nevertheless, anticompetitive practices are only one aspect of copyright and circumvention misuse.[110] Another consideration of misuse is public policy, and “some applications of the anticircumvention right will frustrate the policy animating that right, even if those applications are not anticompetitive, or are not sufficiently anticompetitive to constitute an antitrust violation.”[111] Congress has an interest stimulating creativity and promoting the public good through access to creative works.[112] While a waiver of reverse engineering might not be strictly anti-competitive, it dissuades emulation development because it exposes developers to circumvention liability. The risk of such liability may result in a chilling effect in the development of emulation technology in the games industry.[113] Moreover, “the use of license agreements [] restrict the ability of consumers to engage in legitimate activities involving their software-enabled products,” including reverse engineering.[114] Finally, the Copyright Office recognizes interoperability as “a favored purpose.”[115] To the extent that emulation and reverse engineering promotes interoperability, state contract practices preventing reverse engineering is at cross-purposes with the statutory reverse engineering exception.

On the other hand, piracy is the largest disruption to innovation.[116] The anti-circumvention and trafficking provisions of the copyright statute are designed to protect copyright holders from mass reproduction of their copyrights in this digital age by making it a violation to circumvent TPMs.[117] Without state contract law to bolster the anti-circumvention right, video game and console developers may have no other recourse to protect their intellectual property from piracy.[118]

Copyright holders stand on solid ground in terms of their ability to extend their anti-circumvention rights through contract law. The DMCA provides a powerful safe harbor in the reverse engineering exception, but copyright holders can require users to waive their statutory reverse engineering right as a condition to granting a license in their software. Even if EULA restrictions on reverse engineering are valid, a defense against anticircumvention misuse could be invoked insofar as such restrictions are anti-competitive and violate public policy. However, EULA restrictions against reverse engineering are primarily intended to protect against piracy, not defeat competition. On the question of public policy, although Congress has interest in promoting access, it has a greater interest in protecting the rights of copyright owners.

Conclusion

“We have already ruled that the emulator is not a violation of the copyright laws.”[119] More than twenty years later, the Ninth Circuit’s holding appears to have become stale in light of the digitization of copyrighted works, the implementation of multitudinous TPMs to prevent unauthorized reproduction of copyrighted works, and Nintendo’s unmitigated success in litigating DMCA takedowns.[120]

This Note argued that emulation is a violation of the copyright laws. The Ninth Circuit held that emulators do not violate copyright laws,[121] but the Connectix case stood for the narrow proposition that intermediate copying of a copyrighted program to gain access to unprotected functional elements is not infringing under the fair use doctrine.[122] The Court did not address the doctrine of contributory liability or the statutory contours of the reverse engineering exception.[123] Users who extract prod.keys and the game ROM infringe on the copyright owner’s exclusive rights to reproduce. Developers of emulators are contributorily liable for this infringement because they encourage such infringing activity. They are also liable for violating the anti-circumvention provisions of the DMCA because reverse engineering does not protect circumvention when it constitutes infringement, and the doctrine of contributory liability supplies the requisite nexus to infringement.

This Note also proposed an alternative contract theory under which developers could be found in violation of the anti-circumvention provision even if there were no infringement. The reverse engineering exception does not apply when a person who circumvents TPMs does not have the right to use a copy of the computer program. Copyright holders are able to place restrictions on the right to use the license through their EULA by prohibiting reverse engineering. Insofar as such a legal theory is anticompetitive or violates public policy, an equitable defense of anti-circumvention misuse could be invoked when the defendant violates the anti-circumvention provisions, although this is unlikely to succeed.

This places emulation in a legal bind. Emulation is not per se illegal, but emulation and the mass, unauthorized reproduction of copyrighted works go hand in hand. For copyright providers “[t]o operate in this environment, . . . providers will need both the technology to make new uses possible and the legal framework to ensure they can protect their work from piracy.”[124] The factual circumstances will be different in every case, but Yuzu is an instructive case that largely typifies how litigation against emulators will likely play out in the future. Infringement remains the best strategy for establishing liability against emulation. If, however, contributory liability is not established, state contract law may be the next battleground for anchoring circumvention liability.

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[1] Johnathon M. Horner, “If Buying Isn’t Owning, then Piracy Isn’t Stealing”, Medium (Sep. 1, 2024), https://medium.com/@beatmekanik/if-buying-isnt-owning-then-piracy-isn-t-stealing-0faae966ef04 [https://perma.cc/J8CF-49LX].

[2] Id.

[3] See Phil Salvador, Survey of the Video Game Reissue Market in the United States, Video Game Hist. Found., 7–15 (2023).

[4] Id. at 12–13 (noting that the price for Little Samson, a game on the Nintendo Entertainment System, was “an average of $2,750”).

[5] Horner, supra note 1.

[6]Salvador, supra note 3, at 7.

[7] Id.

[8] Id.

[9] Sony Comput. Ent. Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1029 (9th Cir. 2000).

[10] See Sony Comput. Ent., Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000).

[11] Joint Motion for Entry of Final Judgment and Permanent Injunction at 1, Nintendo of Am. Inc. v. Tropic Haze LLC, No. 1:24-cv-00082 (D.R.I. Feb. 26, 2024), Dkt. No. 10.

[12] Id.

[13] 17 U.S.C. § 106.

[14] 17 U.S.C. § 501(a).

[15] 17 U.S.C. § 107.

[16] There is a circuit split on how to interpret the anti-circumvention provisions of the DMCA between the Ninth Circuit and the Federal Circuit. See Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed. Cir. 2004); MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928 (9th Cir. 2010). This Note adopts the Ninth Circuit’s holding because it is consistent with the plain reading of the statute and in accord with the legislature’s intent. The Ninth Circuit holds that § 1201(a) creates a new anti-circumvention right. Accessing a protected work through circumvention violates this statutory right even when there is no infringement, provided that there are no other statutory exceptions exempting such circumvention.

[17] MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 944 (9th Cir. 2010).

[18] 17 U.S.C. § 1201(a).

[19] 17 U.S.C. § 1201(b)(1); See MDY, 629 F.3d 928 at 944.

[20] Id. at 945.

[21] Id. at 947.

[22] Frequently Asked Questions and Answers, DVDCCA, https://www.dvdcca.org/home/faq#qa02 [https://perma.cc/A336-ZU9C] (last visited Apr. 21, 2026).

[23] Sony Comput. Ent., Inc. v. Connectix Corp., 203 F.3d 596, 603 (9th Cir. 2000) (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984)).

[24] Bhamati Viswanathan, Cultivating Copyright: How Creators and Creative Industries can Harness Intellectual Property to Survive the Digital Age 14 (2020).

[25] Id. at 160.

[26] 17 U.S.C. § 107

[27] 17 U.S.C. § 1201(f).

[28] See 17 U.S.C. § 1201(a)(c).

[29] Viswanathan, supra note 24, at 15.

[30] § 1201(a)(1)(B)–(C). For a list of exemptions, see 37 CFR § 201.40.

[31] See Rulemaking Proceedings Under Section 1201 of Title 17, U.S. Copyright Off., https://www.copyright.gov/1201/ [https://perma.cc/9L98-8UVT] (last visited Mar. 12, 2025).

[32] See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 77 Fed. Reg. 65260, 65272 (Oct. 26, 2012).

[33] Id. at 65272–74.

[34] Id. at 65272.

[35] Leadership, U.S. Copyright Off., https://www.copyright.gov/about/leadership/ [https://perma.cc/KS5E-DURY] (last visited Apr. 21, 2026).

[36] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 77 Fed. Reg. at 65274.

[37] U.S. Copyright Off., Section 1201 Rulemaking: Sixth Triennial Proceeding Recommendation of the Register of Copyrights 194 (Oct. 2015).

[38] Id. at 199.

[39] MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 946 (9th Cir. 2010).

[40] Id.

[41] See Kirk A. Sigmon, Nerds v. Nintendo: Video Game Decompilations Versus Rights-Holder Interests, 45 Cardozo L. Rev. 53 (2023), for a stimulating discussion about the rights of consumers in intellectual property to preserve, access, and enjoy those works.

[42] See Salvador, supra note 3 (“Only 13 percent of classic video games published in the United States are currently in release.”).

[43] Indeed, federal regulations make an exception for video games “that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum.” 37 C.F.R. § 201.40 (2026).

[44] This Note primarily focuses its discussion on emulators such as Yuzu that are specifically designed to emulate commercial (i.e., “current generation”) console software and video game software. Whether the policy analysis changes for the emulation of video game software that is no longer available in the market is an issue that merits further discussion. See Sigmon, supra note 41, at 113 (proposing a form of adverse possession for “abandoned” video games). But see Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 71 Fed. Reg. 68472, 68474 (Nov. 27, 2006) (to be codified at 37 C.F.R. pt. 201) (“Many old video games and computer programs are being reintroduced into the market in new ways by their copyright owners . . . circumvention of access controls would cause significant harm to copyright owners in their exploitation of these re–released works.”).

[45] U.S. Copyright Off., Software-Enabled Consumer Products 56 (Dec. 2016).

[46] Salvador, supra note 3.

[47] 37 C.F.R. 201.40 (2026).

[48] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 77 Fed. Reg. 65260, 65273 (Oct. 26, 2012) (to be codified at 37 C.F.R. pt. 201) (explaining the reason why the Register permitted an exception to jailbreaking smartphones to enable interoperability with other applications, but why it denied jailbreaking consoles).

[49] Dan. L. Burk, Anti-Circumvention Misuse,50 UCLA L. Rev. 1095, 1098 (2003).

[50] Id.

[51] See infra Section II.C.

[52] Complaint at 11–14, Nintendo of Am. Inc. v. Tropic Haze LLC, No. 1:24-cv-00082 (D.R.I. Feb. 26, 2024).

[53] Sony Comput. Ent., Inc. v. Connectix Corp., 203 F.3d 596, 599 (9th Cir. 2000).

[54] Andrew Johnson-Laird, Software Reverse Engineering in the Real World, 19 U. Dayton L. Rev. 843, 846 (1994).

[55] Connectix, 203 F.3d at 599 (quoting Johnson-Laird, supra note 54, at 846).

[56] Id. at 600.

[57] 17 U.S.C. § 1201(f)(1).

[58] Id.

[59] Connectix, 203 F.3d at 596.

[60] Id.

[61] Id.

[62] Id. at 602–08.

[63] Id. at 609.

[64] See infra Section II.C for a discussion of contributory liability as the basis for establishing infringement.

[65] Complaint, supra note 52, at 11–12.

[66] Id.

[67] Id. at 13.

[68] Id.

[69] Id.

[70] See What Happened to Dolphin on Steam?, Dolphin Blog (July 20, 2023), https://dolphin-emu.org/blog/2023/07/20/what-happened-to-dolphin-on-steam/ [https://perma.cc/9LDC-LS5Y]. Nintendo requested that Dolphin not publish its emulator on Steam (a video game storefront). Dolphin sought legal counsel and, relying on § 1201(f)(2), concluded that the reverse engineering exemption protects the circumvention of encrypted devices because it is for the purpose of interoperability.

[71] 17 U.S.C. § 1201(f)(2). Indeed, it would be a statutory oversight to provide an exception for circumvention to develop an independently created program, but not provide an exception for any circumventions, including decryption, that are necessary to operate the program.

[72] Lexmark Int’l, Inc. v. Static Control Components, Inc., 253 F. Supp. 2d 943, 970 (E.D. Ky. 2003), vacated, 387 F.3d 522 (6th Cir. 2004).

[73] Id. at 970–71.

[74] Davidson & Assocs., Inc. v. Internet Gateway, Inc., 334 F. Supp. 2d 1164, 1186 (E.D. Mo. 2004).

[75] See Complaint, supra note 52, at 12. In Nintendo’s own words, the layers of encryption measures are designed to protect their games “because in the ordinary course, Nintendo’s games are only accessible and playable on an authentic Nintendo Switch.” Id. at 13.

[76] But see id. at 33, where Nintendo alleges that “[d]uring development of Yuzu, Defendant’s agents . . . at minimum: (1) hacked at least one Nintendo Switch console; (2) dumped games from a hacked Nintendo Switch console; and (3) loaded those game copies into Yuzu and played them.”

[77] See MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 945 (9th Cir. 2010).

[78] Riordan Zentler, Game On: What are ROMs and emulators, and are they legal?, Spokesman-Review (Feb. 17, 2022, at 14:29 EST), https://www.spokesman.com/stories/2022/feb/17/game-on-what-are-roms-and-emulators-and-are-they-l/ [https://perma.cc/95GG-AL4M].

[79] See Complaint, supra note 52, at 15.

[80] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434–35 (1984).

[81] Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 914 (2005).

[82] Complaint, supra note 52, at 15.

[83] See Quickstart Guide, Yuzu, https://yuzu-mirror.github.io/help/quickstart/ [https://perma.cc/X3SV-MHLH] (last visited Oct. 12, 2024), for Yuzu’s guide on how to copy the prod.keys and game files (i.e., ROM) from a hackable Nintendo Switch.

[84] See Complaint, supra note 52, at 17 (“[O]n information and belief, most users of Yuzu do not go through the Quickstart Guide and do not circumvent their own Nintendo Switch console to obtain the prod.keys they need, nor do they dump their own games. . . . Rather, most obtain the prod.keys and illegal copies of games (which come with the games’ encrypted Title Keys) online.”).

[85] Id. at 14.

[86] 17 U.S.C. § 106.

[87] See Yuzu, supra note 83, for Yuzu’s guide on how to copy the prod.keys and game files (i.e., ROM) from a hackable Nintendo Switch.

[88] Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 915 (2005).

[89] See Ryujinx Setup & Configuration Guide, Github (Nov. 17, 2024), https://github.com/GreemDev/Ryujinx/wiki/Ryujinx-Setup-&-Configuration-Guide [https://perma.cc/9Q5D-NPE7] (“This article assumes you have already hacked your Nintendo Switch and dumped your Nintendo Switch keys (prod.keys) and firmware file(s).”). Note that the Ryujinx website has undergone change and no longer directly links to this article after having reached an agreement with Nintendo to cease development and remove all assets of the emulator. See Nintendo Switch Emulator, Ryujinx, https://ryujinx-emulator.com [https://perma.cc/7GBV-Q4NN] (last visited Dec. 1, 2024).

[90] The fact that Ryujinx was successful as a “competitor to Yuzu” demonstrates that users were motivated to find instructions on how to extract the game files (or download them from a website) in order to use the popular Ryujinx emulator. See Sean Hollister, Nintendo has reportedly shut down Ryujinx, the Switch emulator that was supposedly immune, Verge (Oct. 1, 2024, at 6:12 EDT), https://www.theverge.com/2024/10/1/24259791/nintendo-ryujinx-switch-emulator-gdkchan-removed-downloads-github [https://perma.cc/5DBD-W8YY].

[91] 17 U.S.C. § 1201(f)(2).

[92] § 1201(f)(1).

[93] Davidson & Assocs., Inc. v. Internet Gateway, Inc., 334 F. Supp. 2d 1164, 1185 (E.D. Mo. 2004) (“[T]he defendants lawfully obtained the right to use a copy of the computer programs when they agreed to the EULAs and TOU.”).

[94] See End User License Agreement, Nintendo, https://www.nintendo.com/sg/support/switch/eula/usage_policy.html [https://perma.cc/EZ6T-XXSH] (last visited Nov. 27, 2024) (“You may not copy, duplicate, publish, transmit publicly, lease, modify or reverse engineer the Software.”).

[95] See 17 U.S.C § 1203, which allows the complaining party to choose between “actual damages and any additional profits of the violator” or up to $2,500 “per act of circumvention.”

[96] See 17 U.S.C. § 504, which allows the copyright owner an election of actual damages plus lost profits, or statutory damages for “all infringements involved” up to $150,000.

[97] MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 941 n.3 (9th Cir. 2010).

[98] U.S. Copyright Off., supra note 45, at 59 (internal quotation marks omitted).

[99] 911 F.2d 970, 979 (4th Cir. 1990) (holding that the license agreement restricting corporate defendant and its employees from developing similar software went too far because it went beyond protecting their code to controlling competition).

[100] See generally Burk, supra note 49 (proposing that because circumvention is a right distinct from infringement, “improper leveraging” of that right merits its own equitable defense).

[101] Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1514 (9th Cir. 1992).

[102] Sony Comput. Ent., Inc. v. Connectix Corp., 203 F.3d 596, 599 (9th Cir. 2000).

[103] Viswanathan, supra note 24, at 29.

[104] Burk, supra note 49, at 1135.

[105] Complaint, supra note 52, at 21–22.

[106] Id.

[107] U.S. Copyright Off., Section 1201 Rulemaking: Fifth Triennial Proceeding Recommendation of the Register of Copyrights 40 (Oct. 2012).

[108] Davidson & Assocs., Inc. v. Internet Gateway, Inc., 334 F. Supp. 2d 1164, 1181 (E.D. Mo. 2004).

[109] Id.; Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988); Tompkins v. United Healthcare of New Eng., 203 F.3d 90, 97 (1st Cir. 2000).

[110] Burk, supra note 47, at 1132–33.

[111] Id. at 1140.

[112] See Viswanathan, supra note 24, at 15.

[113] Arguably, Nintendo’s recent upsurge of litigation against emulation is strategically designed to produce such a chilling effect. See Complaint, supra note 52, at 16 n.8; Emma Roth, Nintendo DMCA takedown wipes over 8,500 Yuzu emulator copies, Verge (May 3, 2024, at 9:43 EDT), https://www.theverge.com/2024/5/3/24147936/nintendo-dmca-takedown-yuzu-emulator-copies [https://perma.cc/JRZ8-6V5M].

[114] U.S. Copyright Off., supra note 45, at 60.

[115] Id. at 58.

[116] Viswanathan, supra note 24, at 28.

[117] Burk, supra note 49, at 1139.

[118] Companies like Nintendo could sue for direct infringement of the pirates individually, but this is not feasible.

[119] Sony Comput. Ent. Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1029 (9th Cir. 2000).

[120] Complaint, supra note 52, at 16 n.8; see also Roth, supra note 113.

[121] Bleem, 214 F.3d at 1029.

[122] Sony Comput. Ent., Inc. v. Connectix Corp., 203 F.3d 596, 609–10 (9th Cir. 2000).

[123] Id. at 599–601.

[124] MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 947 (9th Cir. 2010).

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