Case 1:24-cv-00082-JJM-LDADocument 1Filed 02/26/24Page 31 of 41 PageID #: 31
portion thereof; or
- (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under [the Copyright Act] in a work or a portion thereof.”
90. As discussed supra, ¶¶ 30–37, the Technological Measures effectively protect the rights of copyright owners in works protected by the Copyright Act. These copyrighted works include Nintendo Switch video games in which Nintendo owns or exclusively controls copyrights.
91. As discussed above, Plaintiff’s Technological Measures—including the Game Encryption—in the ordinary course of their operation, prevent, restrict, or otherwise limit the exercise of a right of a copyright owner under the Copyright Act, by controlling or managing whether one can copy Nintendo’s copyrighted works, distribute unauthorized copies of Nintendo’s copyrighted works, and play (publicly perform) unauthorized copies of Nintendo’s copyrighted works.
92. Yuzu, designed by Defendant and its agents, circumvents the Game Encryption on Nintendo Switch video games including by decrypting their many layers of encryption, thereby enabling the copying and play of those games on unlicensed platforms. Yuzu circumvention as described herein is thus both primarily designed to circumvent protection afforded by a technological measure and has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure.
93. Defendant and its agents know that Yuzu is designed, implemented, and used to circumvent the Game Encryption, and their conduct promoting Yuzu thus constitutes marketing with knowledge for Yuzu’s use in circumventing protection afforded by a technological measure.
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