[Spivak]

I think the fair use rights would be "you are allowed to write an emulator for the switch and any software components necessary to make games interoperable to the platform of your choosing."

And while you are allowed to implement technical measures to prevent people from doing this or make it difficult you shouldn't have any legal protection.

[CyberRabbi]

That has nothing to do with fair use. That is a misuse of the term which has a specific meaning in the context of justifying derivative works of copywritten material.

You are allowed to make an emulator because there is nothing that says it's illegal. Under the DMCA, you are not allowed to distribute tools which help in the circumvention of copyright, which is what this tool does. It allows people to bypass the copyright protections Nintendo has put in place to prevent people from running copied games without permission.

[Spivak]

The fair use right that you have is the right to make copies of works for your own use. If you own mario party on the switch and would like to play it on your computer you are allowed to do make a copy of the work to do so.

Tools that facilitate this legal use shouldn't be an able to be taken down. It doesn't matter if you think they're using those tobacco accessories for something else.

But a tool that allows you to break say HBO's streaming DRM wouldn't get this protection.