Last week was a massive week for DMCA misuse. Nintendo is using takedown notices to remove software from the internet, based on legal "precedents" that were never ruled on by any court.
The company is citing two of its past cases as proof that emulators violate the anti-circumvention rules of the US DMCA copyright law, but both of those cases ended by default before a judge or jury could actually rule on the matter at hand.
One of them, a $2.4 million settlement with the makers of the Yuzu emulator, happened after the defendants, Tropic Haze, decided to fold and pay up before the court had a chance to make a first ruling. The other was a default judgment against a streamer who never showed up in court.
But these "wins" are good enough for Nintendo to keep citing them as legal precedents, and for GitHub to accept these claims and remove more than 400 repositories in a single day, on August 17.
The code hosting platform says it carefully reviews claims of DMCA violations and "will err on the side of the developer, and leave the content up" when in doubt.
Apparently, there was no doubt here, despite the shaky ground on which Nintendo's claims are based. The company's argument is that the Switch emulators are in violation of the law because they use "unauthorized copies of these cryptographic keys to decrypt unauthorized copies of Nintendo Switch games, or ROMs."
But that has never been decided in a contested trial. And GitHub is supposed to be a platform that takes the side of developers when in doubt.
What the removals have done, at least for the time being, is take down the entire network of the Suyu project, which is a fork of Yuzu, as well as the Android emulator Skyline, several Yuzu forks, and a C#-based emulator called MonoNX.
Most of the repositories are now gone, with some showing a GitHub takedown notice, while others simply return a 404 error, suggesting that their owners may have deleted them as soon as they received the legal threat.
The removals are part of a much broader and longer-term campaign by Nintendo to control every layer of the internet, from search results (by making Google hide sites from its search) to websites (by forcing ISPs to block them), and now, code repositories.
