Dolphin has recently revealed that its Gamecube and Wii emulator has been indefinitely postponed from release on Steam, after listing. However, reports that this came from a Nintendo DMCA are incorrect. So what actually happened?
It all starts with an update from the Dolphin blog. On the 27th, they stated:
“It is with much disappointment that we have to announce that the Dolphin on Steam release has been indefinitely postponed.
We were notified by Valve that Nintendo has issued a cease and desist citing the DMCA against Dolphin’s Steam page, and have removed Dolphin from Steam until the matter is settled. We are currently investigating our options and will have a more in-depth response in the near future.”
However, PC Gamer acquired a legal opinion on the matter, and confirmed with Atty Kellen Voyer that the letter Nintendo sent was not a DMCA. In Kellen’s words:
“I would characterize this NOT as a DMCA take down notice and instead as a warning shot that the software, Dolphin, if released on Steam would (in Nintendo’s view) violate the DMCA.”
So, what exactly happened here? We will refer to the explanation from one Pierre Bourdon over on his own Mastodon instance. Pierre is an outgoing member of the Dolphin team who also got to read the letter, and demonstrates an understanding of the issues firsthand.
To quote Pierre’s TLDR:
“1. Valve legal contacted Nintendo of America to ask “hey, what do you think about Dolphin?”
2. Nintendo replied to Valve “we think it’s bad and also that it violates the DMCA anti-circumvention provisions” (note: nothing about violating copyright itself). Also “please take it down”.
3. Valve legal takes it down and forwards NoA’s reply to the Dolphin Foundation contact address.”
So Nintendo did not send Steam a DMCA takedown. What it is, is a cease & desist from Nintendo, after Valve checked with them for their opinion. While you might find it strange that competitors are talking to each other in this way, this is actually the sort of thing companies like Valve, Nintendo, Sony, Microsoft, Apple, etc talk about so they can avoid having to sue each other.
Pierre also talks about the supposed explanation for the DMCA that other outlets have clung onto: the Dolphin emulator used the Wii AES-128 Common Key, which is code from Nintendo.
However, Pierre also points out that the usage of this cryptographic key falls under a legal grey area, one of many such grey areas when we talk about video game emulation. We don’t actually know if usage of such keys are legal or illegal until it goes to court, regardless of what Nintendo or any other entity claims.
While Valve has yet to respond to the press, Nintendo shared this statement with Kotaku on the matter:
“Nintendo is committed to protecting the hard work and creativity of video game engineers and developers. This emulator illegally circumvents Nintendo’s protection measures and runs illegal copies of games.
Using illegal emulators or illegal copies of games harms development and ultimately stifles innovation. Nintendo respects the intellectual property rights of other companies, and in turn expects others to do the same.”
On other aspects of this case, you can read Pierre’s longer explanation above, as well as his follow up thread here.
