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Nintendo is suing the creators of popular Switch emulator Yuzu, saying their tech illegally circumvents Nintendo's software encryption and facilitates piracy
@Stephen Totilo:
NEW: Nintendo is suing the creators of popular Switch emulator Yuzu, saying their tech illegally circumvents Nintendo's software encryption and facilitates piracy. Seeks damages for alleged violations and a shutdown of the emulator. pic.twitter.com/SGZVI6Cs0x
It is harder to make the argument that emulation's use is to allow people to play the games they own even as aging hardware becomes unusable when the console you emulate is on store shelves.
I don't think that you really need to justify building an emulator because ultimately, it's the user's responsibility to not break laws. If you can't sue a gun manufacturer for crimes committed by its customers, why should you be able to sue a software company for the crimes of its users?
That said, playing switch games on a steam deck oled is the superior experience.
Which should be all the justification needed, as far as I’m concerned; better/worse is subjective, of course, but choice matters.
I feel like we’re so used to companies, and Nintendo in particular, trying to shoot down projects even when an indisputably iron clad justification exists (like “you literally don’t make or sell this hardware anymore and will not accept my money however much I would like to purchase it”) that a product in a more genuine grey area feels as if it’s far sketchier than it actually is.
Do emulators facilitate copyright infringement? Yeah, probably. But they also give legitimate, paying consumers a range of hardware options that the manufacturer refuses to offer, and that alone is reason enough to protect them even for current generation consoles.
That's not what copyright addresses, though. The concern is on making sure IP owners can't have their IP stolen. In the case of Nintendo, that applies to both gaming software and the OS (similar to IOS/Mac) .
That said, emulation usage does have precedence in favor of it. But Nintendo is apparently arguing a different angle here.
This actually raises a very important and interesting point: what is copyright for? If we go right back to the original US definition the intent is explicitly to encourage further innovation:
An artificial monopoly on a creative work is very much not a natural right, and pure profit maximisation is (ostensibly) not the reason it's conferred - it's there to allow enough chance of making a profit that someone's motivated to make the work at all, and then to expire and pass that work into public hands. The actual state of modern copyright law is pretty far from that point, but the idea of the legal system (in this case and in general) balancing tradeoffs between private and public interests still stands.
I'm quite comfortable saying that the spirit and intent of copyright requires user freedom to at least be considered as part of the equation. The same goes for @ackables point about licensing - the EULA might say you have effectively no rights over your purchase, and whether that would be upheld would no doubt vary by jurisdiction and by judge, but Nintendo's ability to attempt that is governed by law that is at least supposed to be balancing the rights and responsibilities of both sides.
It goes back to what I said in my first comment, in a lot of ways: companies have pushed the copyright discourse so far in their favour that anything other than their total, near-perpetual control of what they create is seen as synonymous with theft. Anything that hinders maximisation of theoretical profit from a work is seen as a loss. I understand why the companies take that view and make those statements, it's in their interest, but that doesn't mean we need to take them at face value either legally or morally.
If I could give this an “exemplary” tag I would.
Even the very words “intellectual property” make no sense when put together. I’ll reiterate- the legal framework that is IP law today is used nearly exactly opposite of how it was intended as written. This needs to be shouted until consumers can own what they buy again. Because if EULAs continue to define the norms for enforcement then it’s more criminalization of creativity and innovation and less freedom.
It’s an unwarranted burden on the legal system, and makes criminals of people without cause.
It’s important to have a functioning system of laws in order to attempt to have some kind of “Justice”. The only reason this is a fight is profits.
One thing I wonder is if we actually own switch games, even if we have a physical copy, or if it's licensed. I checked the Nintendo EULA and I saw this section.
Does this only cover online downloads, or does it cover the software contained on game cartridges?
EULAs basically are not enforceable, at all...legally speaking.
One of the best writeups on the topic
Until the deep pocketed companies decide otherwise. They exist for a reason. That reason is “Someday”.
As noted in the post...it seems most are very nervous to get this before the Supreme Court.
The status quo lets them operate in this nebulous grey area where uninformed consumers mostly follow their whims. A Supreme Court ruling would draw a clear line, and while there would be winners and losers...based on current precedent the software companies have much more to lose.
Keep in mind the US government (military in particular) also tremendously benefits from software as a good, so in this particular case there's an actual chance of "your money is no good here" applying.
The real question is: Does Yuzu have the kind of bankroll to play this out to the supreme court.
Or if there were a charitable lawyer willing to open a class action on the behalf of Nintendo Switch owners who wish to use emulation and attain their save games. I don't even want a monetary reward....I just want software that lets me format shift my switch games away from Nintendo hardware.
I think we are in agreement here. I just want to stay very grounded on the whys and hows of exactly how wrong and broken IP and copyright law is.
I’ll not forget the t-shirt I used to have from 20+ years ago. It had the 18 lines of code printed on the front that was the core of the (I think it was) FFMPG library that the RIAA was attempting to prosecute people for using to rip their DVDs.
If apathy and time and the Overton window don’t defeat us, this fight is winnable.
The kicker is really the 'telling others how to circumvent' which really needs a full shutdown.
Luckily the list of exemptions grows
Sharing of knowledge should never be illegal.
That's pretty common for all digital goods.
This is probably more relevant to emulators, if enforceable.
I know this is a common agreement for digital content, but I wonder if it can extend to physical copies of the game. Can they sell the cartridge and say you own the physical cartridge, but they are only licensing the software contained on it?
Wouldn't be surprised. Probably a litany of examples from the recording industry.
That is absolutely the case.
If I've bought both the legitimate hardware and software, I'll do whatever I damn well please. End of story.
You're absolutely right though, it's the end user to responsibly use the products/services/tools they choose. That doesn't mean Nintendo turns a blind eye to it, they should certainly implement whatever kind of DRM they see necessary, but this brings me to the great overlord Gaben's take on piracy:
In my opinion, Nintendo has struggled to offer or maintain a desirable, valuable user experience - especially with online services - for quite some time. For example, had they not paywalled access to game saves on the switch, I probably never would have modded mine for local backups to begin with.
To offer the other result of this, this is pretty much how Mobile became a race to the bottom. The app itself is free so there's nothing to pirate on the app. The service is mostly on a server, so it's easy to trace cheating in the game itself. It's on your phone which pretty much everyone has, so the barrier of entry is nigh zero (unless you have a low spec phone for a high spec game). And with all that, you enable the biggest/richest fans to spend hundreds, or thousands to offset that most people will never spend a dime. And it works.
It solves the piracy problem, but not necessarily in a way that console/PC players agree with.
Insofar as “solving piracy” I’ve seen loads of high budget, online only, games-as-a-service games in the last decade from the big players. So yeah, they’re making strides in fighting piracy.
The problem is, the assumption of “more piracy means less money” doesn’t hold up to scrutiny if you deep dive into actual numbers — often as piracy for a given game increases, sales also increase but by a larger margin. Once a game has been out for a while and earned whatever reputation it gets, the actual quality of the game has a much bigger impact on its overall success than piracy does.
But because companies look for quarterly spikes in growth, they don’t actually care about long-term success, they care about those initial sales and preorders from people with FOMO who want the latest thing before they know if it’s actually any good.
Sorry what? I haven't owned a Nintendo since the 64 and haven't really kept up with the company much other than playing Wii at friends houses. So you can't even save your game without signing up for Nintendo Direct or something?
I'll edit my comment for clarity; you could save games but they were completely inaccessible. You could not back them up or move them to another console for quite some time, until they launched the online service which allowed cloud backups and transfers. Still no local access.
Ah ok, that makes slightly more sense. It's still scummy as hell and makes me not feel guilty for the half dozen exclusives I've emulated over the years.
This seems simply like one of the numerous downsides of these closed platforms. If they can get away with getting more control of the hw they "sold" they will. Playstation 5 is like that too.
In what way ? Switch OLED offers the same screen, and better performance due to the steam deck’s relative weakness combined with the overhead of emulation.
I do play most of my switch games on my deck but that’s because 1) it’s more convenient to only have one portable for all my games and 2) I have the original switch with the crappy screen. Occasionally the performance bothers me enough to play native though, or at least move to my desktop where I have the hardware to force it down mid with regards to the emulation. I’m curious what makes it a better experience in your eyes.
I like the more comfortable controller with the Steam Deck OLED. I know you can get the switch pro controller, but if you want the handheld experience, the Steam Deck OLED has better ergonomics.
I also don't play very taxing games on switch, so I haven't run into performance issues. I can see how that would be a downside for some games though.
Makes sense. Yeah, the steam deck hardware is awesome !! I love the back buttons and more comfortable grips (it helps when the hardware isn’t designed for children’s hands 😂)
I found some cheap (~$10USD) molded rubber pads on Amazon that stick on the back buttons, raising them right to your fingertips. I'm not sure if my hands are weird, but reaching them before always felt uncomfortable.
I haven’t had that problem personally, but it’s great that there are 3rd party options to make it more comfortable for everyone :)
By streaming Yuzu from a much more powerful desktop PC to a Deck with Moonlight, you can have BotW/TotK running at 60/90FPS and patched with higher settings in a Switch-like form factor.
This is a markedly better experience than Switch native, despite the tiny bit of added latency. As a bonus, streaming with Moonlight takes very little power, so you can crank the TDP of the Deck down to minimum and get many hours of battery life with no heat or fan noise.
I had been intending to do this myself but hadn’t gotten around to setting it up yet.
I think you’ve got things backwards. The steam deck is a much more powerful system. The Switch is not only years older, it’s based on a tablet SoC that came out a year or two earlier. Even the base model Steam Deck is an upgrade simply because it will be able to run games at native resolutions and with forced AA.
The steam deck is more powerful, yes, but the emulation cost is huge for these switch emulators. I can promise that a steam deck is not running switch games better than the original hardware, despite how old the switch is. Even my 3080 can struggle sometimes.
It really depends on the game. I played through all of Xenoblade Chronicles Remastered on the Steam Deck and I promise you it looked notably better on the Steam Deck than it did on the Switch.
Fair, if a game has low enough requirements to run then you could benefit from the extra resolution etc options the emulators offer. I haven’t run into any such games in my own play, but that’s neat to hear some exist. The Deck is awesome 😄
You have to remember the Deck doesn't have a much higher resolution than the Switch (720p vs 800p) and to be far better than the Switch all you have to do is switch off dynamic resolution scaling (a blight in Xenoblade 1 and 2 specifically.)
Speaking personally, I always hate playing games (or doing anything) on any sort of proprietary locked-down ecosystem where I don't own my data and I'm not sure I could get it out if I wanted to. This is more-or-less why I refuse to use gaming consoles, Apple products, and most social media, and why I'm trying to move away from proprietary cloud services.
There are two sets of law at play here:
Circumvention of technical means
Copyright infringement
Circumvention tends to be criminal, while mere copyright infringement tends to be a civil tort. (There are sometimes exceptions, eg in the UK, copyright infringement that's severe enough to distort the market, or copyright infringement as part of a business, will tip it into a criminal offence. And there's lots of jurisdictional variation on top.)
Emulator users tend not to be breaking any criminal laws.
EDIT: I'm not making a pro / anti piracy argument here. I pirate just about everything all the time.
I bought TotK for the Switch but never play it because my kids monopolize the console. Are you saying I can just download Yuzu on my Steam Deck and legally go to Yo Ho Ho to get a rom and play on my own console??
I don’t think it’s legal to download roms but you can do it
Actually, you can sue them.
This was a strange case, because gun manufacturers do have broad immunity from prosecution under US federal law: you can't sue a gun company simply because one of their guns was used to commit a crime.
What this case shows is possible is that you can successfully pursue these companies under state law for related reasons, in particular that the marketing of the gun was a factor in the crime (as far as I understand it).
In any case, the analogy to video game piracy isn't particularly good here, since as mentioned there are gun-sector-specific laws granting them certain immunity: this isn't the case for people who make video game emulators.
Praying this doesn't work out, otherwise we have a horrible legal precedent to set. If Nintendo gets their way, on top of crippling future preservation of switch games, this would also allow them to go after emulation projects of retro consoles even more, since what Yuzu does is not anything different from other emulators like Project 64 as far as I'm aware.
Game preservation is too important for me to care even remotely about piracy, not sorry.
It'd actually be curious whether this would allow Nintendo to go after consoles they no longer sell.
My very limited understanding of lawsuits suggests that you often need to be able to demonstrate that you've suffered damages, with loss of sales being a particularly salient way of doing that. In this case, Nintendo makes a claim that The Legend Of Zelda: Tears of the Kingdom was downloaded illegally 1 million times in it's launch month. A claim it correlates with a doubling of the support Yuzu received on Patreon in that same timeframe.
Nintendo is notoriously bad at providing legal avenues to buy games for its old consoles, so it may be a larger hurdle to after emulators for those older consoles.
Any worse than Sony/Microsoft? They have Backwards compatibility more times than not (but not for multiple generations), they keep online stores open enough to download games even when you can no longer buy online, they remaster the most popular games for newer gens, and the hardware tends to last decades (My PS2 and GameCube still work).
Short of porting to PC, I don't see what more they can do provide more avenues. But I don't think they should be mandated to develop for PC. No one ports everything for every generation forever.
they could argue those emulated old games are lost revenue through their Nintendo online retro library
Hm, interesting point. I hope you're right. honestly I'm not a legal expert (or knowledgeable about legality at all, in any form) so I have no idea if what I'm saying is true, I just worry for any possible negative implication for game preservation.
Even then, if they do manage to prove it damages sales now, what about later when the switch is EOL or even abandonware? It would still remain illegal, no? I'm asking because I have no idea to be honest.
The funny part is that anyone pirating the ROMs could just get a jailbroken switch to run them on anyways.. It’s such a weak argument for disallowing emulators that in no way encourage (and in fact, explicitly discourage) piracy.
I'm about as uninterested in supporting nintendo after hearing this as ive ever been. This company hates third party developers, hates modern networking support, hates people trying to preserve its works, hates people just covering their games, hates its fans tbh. Its just such a pessimistic and gross corporation.
Does Yuzu include a BIOS? Namely a dumped one and not a reverse-engineered one?
As I understand Dolphin got cut from Steam because they were distributing the leaked Wii decryption key, which was the only thing that really gave them a legal footing.
No, Yuzu requires that you dump the bios, keys, etc yourself.
Their quick start guide, for reference
I should probably do that before my switch acidentally breaks...I have one of the unpatchable ones.
Do it!! It’s great. My switch is basically only used for dumping firmware and roms now 😂
Like, you buy games to dump and emulate?
I should do that. I wound up buying games then downloading them.
Yep ! It’s a little more work than downloading them, but it’s rather easy to dump a new one after the initial setup. Plus then I never have to worry about sketchy websites and such things, and I can get any DLC or updates easily without having to wait for someone to upload them.
Isn't this a nice paradox? That emulators exist because of such behaviour of the big companies? The harder they will go after them, the more emulator scene will rise up against them. And it may not be long before gamers stand against them too.
I bought Tears of the Kingdom when it released so my mind can be at ease playing it on my Steam Deck. I also own Switch Lite, so I invested in Nintendo all the money to legally play the game - once this situation happens, they shouldn't even start caring about how I play the game.
By doing this they arenot making themselves look good in my eyes - in the eyes of their paying customer. They don't inspire me to buy more games, let alone another console.
EDIT: It's the problem with today's world. Nintendo could have made the games downloadable on their site with encoded owner in the game file and disclaimer "If this leaks, you are responsible, your account will be banned (or whatever). You may use this filw to run in unofficial emulators, we are not reaponsible for the experience you will get, though."
You would have official file that you could download and put on SD card and on your Switch whenever you wanted to play it. Or use it in emulator if you are this kind of person.
Atripping right from customers will always lead to people trying to go around such obstacles. And it may eventually lead to people giving up on trying and forfeiting your brand completely. I never paid for Netfix etc. - it either exists in physical (or downloadable DRM-free) form for me to buy and own or I'm not interested.
I don't think being open and friendly would stop emulation from happening. Android has several emulators after all.
most gamers don't even know about emulation, or only know that you can "hack a switch" but not how to actually setup emulation/modding to play free games. That's always been console's advantadge, being annoying enough to try and pirate that many don't bother.
It's also why PC and Android piracy is the most rampant. People understand how to download a file and play it, so the effort to pirate is minimal compared to jailbreaking an iPhone (granted, most phone apps are free these days) or even hacking the easily hackable PSP back in the day.
Nowadays you just put a few keywords into Google (ie. how to play breath of the wild on PC or similar) and then almost everyone can do it.
The thing isn't just about hacking or playing free games. I run games that I own on my emulators. Why I don't play them on the original hardware then? Well, have you tried taking your TV and PS2 and some powerstation with you on a tram? Switch is at the very least portable, but you can only use it for games... It is its strength - you buy it for playing games and it's great at doing that. But when I got Steam Deck, I can now have whole PC with me everywhere. And also PS2. And Switch. And I don't have to take half my house with me anymore.
I understand that majority of emulator users may not be like me - owning the original hardware and software. But that is of least concern for me as all I want is play the games that I own and at the very best in the way I want. Which is why I love emulators. Not because pirating games... If Nintendo brings Yuzu down, they shut their door for me as paying customer. I can be like that.
I have GTA3, VC and SA on my Vita. Why? Because Rockstar... They brought down re3 engine (well, it was just decompiled or whatever, not built from ground up, so the law was on Rockstar's side) resulting in me searching for the ports of thi engine on Vita - perfect device for enjoying those games! They actually raised the inerest in me by their actions. They got on "no buying" list with GTA5 though. Bought it on Steam to play on Steam Deck only to learn that you can't start the game while offline. Dealbreaker for me (can't return, bought long before I got SD in my hands to try) = no money to Rockstar ever again. Bethesda is on the list too and Nintendo might get there soon...
As others stated - guns are not banned, yet they are usedto commit crimes. Cars are not banned, yet they are used in deliberate run-overs. Knives are not banned, yet they are used in attacks on other people. All of those have their valid uses too. Why should emulators be banned then? I use it to play games I bought and which I have hardware for. Nintendo got my money, they were not robbed by me. Others may use emulators to see if their software would run on (jailbroken) Switch as expected (let's call it software devkit). And yet some people may use it for playing pirated games. But as with guns, knives, cars etc. - the people who misbehave should be responsible fpr the actions they do while using them, not the ones who made the gun, knife, car or emulator. Also we won't be stopping production of cars, knives and guns because they cause deaths... Why should emulator cease to exist whe it doesn't even cause physical harm?
I guessit's more about personal belief or opinion than anything else. My view on this is pretty clear - if someone made emulator from ground up.or by reverse engineering (and then frm ground up), it is their rightful software and they may do what they want with it. It is their intelectual property. "Oh, it runs your games? Well, that's not our concern. We do not provide any of YOUR software." I didn't do any research, but if Yuzu is not just decompiled system from Switch, then I stand with it in this David vs. Goliath battle.
At this point I just have some phone games I play on the go. The Switch isn't pocket able and that causes enough friction that I don't really bother using it while traveling. The portability is nice for when I need to share the TV or simply play in bed, but I miss the days when I could slip a game boy in my pocket and leave. Maybe one day that will come back, but PC handhelds aren't there yet.
Well that is the primary concern of Nintendo. If they or anyone else felt like emulation helped sales they would turn a blind eye, similar to the fan art scene. But relatively few people are principled about such matters. They belittle entertainment and don't care about who makes it or how much it costs, and that attitude spreads to piracy.
Software and how it is distributed and infinitely reproduceable completely changes how enforcement of copyright works. It's not as dangerous but it is so trivial to ruin a product over a few "thefts" that you can't have a completely open platform and expect everyone to be honest. Again that's what sealed the deal on the PSP when it launched unencryoted. It's not fair per se, but those are the realities of software.
Everyone had beliefs and opinion. We clearly see Nintendo's here and it disagrees. I guess we'll see how thr courts interpret that over the years.
If you want my belief, it's a huge grey area because of the actual common practice of how emulators end up being used. I don't want to compare it to a gun, but it has its parallels of "well emulators can be used ethically".
I also am admittedly a bit disappointed on how high horse-Y some people on the internet are in the modern day about discussing piracy. I'm no saint and did my fair share of downloading ROMS and emulators and hacking as a grade schooler, but I wasn't acting like I was trying to "fight the system" or "preserve software". And I'd keep discussions underground instead of proclaiming loudly on Twitter "I love playing games for free!" I didn't have money to buy what I want, I found ways to play what I wanted without money (at the cost of time).
I had my fair share of not owning the games that I played... I have bought many of those later in my life though - either because I felt like in debt to developers or the games were that good that I simply wanted to actually own them. Those days are long gone for me, though.
Nowadays I wouldn't even bother pirating anything. I can easily find info about the game, reviews online, reviews by other players, gameplays... I know what I'm buying. And I do that on Steam mostly, where I can return the game if I have to (and I have done so a few times). The emulator scene is more for my comfort than anything else. I mean I still have my hacked PSPs and my Vita. But I also have my most prized games in physical form for those (and I haven't really played other/pirated games there, excluding emulators - again for my comfort, I'sgreat o play San Andreas on the go with phyaical controls!).
I just hope Yuzu will continue to live. Not only because of the IP that its developers made and should be proud of (because it works, not because it is misused), but also because if Yuzu gets taken down, flood gates open to take down anything...
Nintendo is known as being overprotective of their IPs. And I understand that. But while smaller studios make games and even encourage players to share their gameplay, Nintendo does completely opposite. If they could, they would force us to not say Pokemon or that Italian plumber names aloud, to shut up because it is their protected IP and we don't have permission to use it.
I hate such practices which eventually led to things like that meme with buying vs. pirating a DVD. The worst part is that this meme is actually true.
I'm a strong advocate of pirating Nintendo's games, but that's because I think Nintendo, as a company, generally sucks and is anticonsumer. I don't think it's particularly Just or Correct, but as far as I'm concerned, I've given them so much money over the years for the same thing over and over again, I'm all done and I will get what I want as the mood strikes, because it's one little thing I can do to give the finger to some companies I dislike. No moral high ground here.
That said, have you looked into the retro emulation handheld scene? I've had a bunch of these devices over the years, but my current favorite is the Miyoo Mini, but there's a damn heap of the things. You can find some more information on Retro Game Corps, but they're perfect for slipping in your pocket and playing something on the go.
I have half a dozen or so little handhelds that go as accessories to my Steam Deck, since I feel the same way as you. The Deck just isn't properly portable (slipping into my pocket for 5 minutes of play here and there), not to mention, a vast majority of my PC library doesn't lend itself to portability and only playing a few minutes at a time as old handheld games do. I've also recently picked-up a DSi, which has been nice to go back to, especially for the fact that I have it hacked and can add anything I want to it.
Having read the complaint, I'm honestly not sure how Nintendo will have a case here. The complaint more or less hinges on the fact that "Users illegally hack their own Nintendo Switch console in order to obtain prod.keys", and that the Yuzu dev team provides a guide on how to do this. This is, in my opinion, an incredibly weak case - especially in the US. I bought a switch. If I want to throw it in the creek, that's my call. If I want to play a game on it, that's my call. If I want to rip the files out of it, that's my call. Alleging that this is illegal would set an immensely dangerous precedent Re:Right to Repair.
Despite me being pretty anti-Nintendo and pro-Emulation, even pro-Piracy in some cases, I will admit though that Yuzu made one mistake, one which Nintendo mentions in their complaint. They showed Tears of the Kingdom running on their website before the official release date. That's careless, and it's clear the only way they could have obtained it is by piracy. Not saying that's morally wrong, just saying that Nintendo clearly does have a case when it comes to that.
I hope the judge and jury in this case will rule in favour of Yuzu or just dismiss. It's honestly disgusting how Nintendo gets to output subpar hardware even a Steam Deck can emulate, and then throw a hissy fit when people try to work around their asinine limitations that are blatantly hostile to the consumer.
I'm not sure Nintendo even cares whether or not they have an actual case. As it always is in these situations, the creators of Yuzu have very little reason to defend. It'll costs them tens or hundreds of thousands, if not millions of dollars to go to court. And Yuzu is nothing more than a hobby that makes them no money whatsoever. How much money are you willing to spend on your hobbies?
So Nintendo just cares about whether or not they have enough of a case that they are able to keep pushing and escalating until Yuzu is so buried in legal documents and fees that they're forced to cut their losses and take it down. Or that they're hoping Yuzu knows that and will just cave before that happens.
This exactly. Nintendo always does that. Always makes me think there should be some sort of a legal mechanism against such frivolous scare lawsuits, but I could never think of a flawless one. Though I'm sure a flawed but still better one is possible. No one should be able to just dish out random threats of years of debt.
Something like anti-slapp laws, or let the plaintiff cover the defendant's legal expenses when it is so clearly asymmetrical.
Oh, those emulators are really costing you, huh? Then covering the legal fees for the defendant should pay for itself.
I'm sure there would be problems with something like this too, but prima facie it doesn't sound so bad.
One idea I recall was the government covering (most of?) legal costs until a verdict is reached, when the losing party would cover them in entirety plus interest, but yours sounds like a good suggestion, too. Especially the asymmetry rule.
I’m not sure about TotK in particular, but I’ve heard plenty of stories of someone preordering games or hardware and being able to collect it from their local brick-and-mortar store before the official “release date” because the staff maybe didn’t realise it was supposed to be not available to customers yet.
So while I agree in spirit, that the vast likelihood was that it was pirated in the case you illustrated, there’s always that sliver of possibility that it was genuinely acquired.