Interesting. Wonder what that means in terms of github. Yuzu isn't technically distributing the source, is Nintendo taking ownership of it? What stops someone from forking the repo? Who is "yuzu" that's paying this bill?

[–] [email protected] 6 points 8 months ago (1 children)

Presumably forks remain public on Github at their own risk, but Nintendo may shift to a DMCA removal policy now that are about to have a judgment.

The judgment has two sections, one for people who have "privity" and more direct relationships with Tropic Haze, and another for "all third parties acting in active concert and participation with" Tropic Haze. The latter enjoins only sharing code and decryption keys. So it certainly sounds like this was drafted to capture, in the Court's order, people who don't have a relationship but are code-forking.

Nintendo doesn't have nearly as clean legal leverage for randos and individuals that don't have a company built around this emulator, but I actually predict they'll do GitHub DMCA removals on forks based on a broad reading of the injunction.

[–] [email protected] 1 points 8 months ago (1 children)

There is no judgement in a settlement, and settlements are not case-law. The court has little to do with the settlement as it is simply a binding agreement between the parties to resolve the dispute outside of the court. The judge must also agree and sign off but the settlement is only binding to the parties to the suit and does not create any precedent.

If Nintendo wishes to go after anyone else, it will require an entirely new suit. A quick google on the differences between judgements, verdicts, and settlements will explain a lot better.

[–] [email protected] 2 points 8 months ago* (last edited 8 months ago)

Yes, if you were to argue it later in court, you would argue that technically it was a judgment to enter the stipulation and dismiss. And the court may strike the "Judgment" wording in the proposed order. But Nintendo presumably wrote it as a "Judgment" knowing the value that such a designation has.

Further, most stipulated settlements don't include substantive findings of fact, and again, Nintendo drafted that section explicitly to blur the line between a court's finding of facts and mere approved stipulated findings of fact. With this order on the books, it will be up to the next case's defendant to later argue that it wasn't equivalent to any other trial findings of fact and order.

Yes, it doesn't technically create precedent as a trial-tested findings of fact by the Court, but a competent litigation attorney would argue that it is probative of the factual issue and fudge the wording in a brief well enough to argue effectively the same.