Dolphin emulator Steam release blocked by DMCA opinion, not a takedown [Updated]

Update 30/05/23 – It turns out that Nintendo was not the instigator in blocking Dolphin’s release on Steam, nor that it was taken down by a DMCA takedown request. Instead, Valve’s legal team unearthed the possibility that the GameCube and Wii emulator would be challenged by a DMCA takedown request if it was released.

Per outgoing treasurer of the Dolphin foundation, Pierre Bourdon, Valve initiated contact with Nintendo of America to ensure that Dolphin’s release on Steam would be above board. Nintendo did then give the opinion that Dolphin violates DMCA anti-circumvention provisions, and also requested that Valve takes it down, without issuing a formal request. It’s this opinion that was forwarded to the Dolphin Foundation team.

In other words, Valve sought to protect themselves and the integrity of their storefront, and this has highlighted a potential snag for the Dolphin emulator by including the Wii Common Key for game decryption. Of course, Nintendo was always going to say that they do not want to see Dolphin proliferate, but in this case it does not seem that they are actively pursuing the project. They are far more concerned with tackling piracy of Nintendo Switch games, as seen with the recent takedown of Switch game decryption project that allowed Zelda: Tears of the Kingdom to be emulated and streamed prior to its launch.

Speaking to PCGamer, attorney Kellen Voyer of Voyer Law said, “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.”

The original story follows.

Nintendo has managed to block the Steam release of popular GameCube and Wii emulator Dolphin by sending a cease and desist to Valve.

Nintendo are claiming that the Dolphin emulator violates their IP through the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act, and has used this to fire a shot across the bows and prevent Valve and the team behind the open source emulator from releasing Dolphin onto the Steam digital storefront.

In response to this, the Dolphin team posted a statement:

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.

We appreciate your patience in the meantime.

It’s now up to the Dolphin team how to proceed, where they can either bow to the threat of legal action or file a counterclaim with Valve that then gives Nintendo the decision over whether or not to sue.

However, we’re at a point where major gaming corporations are more than happy to use such scare tactics to force fan-led projects to shut down – Activision has shut down fan-created Call of Duty servers, Take Two threatened and shut down GTA mods, and more – and Nintendo is amongst the most litigious companies out there. Every single time it’s the full weight of a multi-billion dollar corporation’s legal team slamming down on fans that don’t realistically have the resources to take the fight to the courts.

Emulation is entirely legal, and Dolphin itself is simply a tool with which to play personally backed up versions of GameCube and Wii games – something which you are legally allowed to do. However, Nintendo seems to have found an angle regarding the circumvention of copy protection of their games. Specifically, they state that “the Dolphin emulator operates by incorporating these cryptographic keys without Nintendo’s authorization and decrypting the ROMs at or immediately before runtime. Thus, use of the Dolphin emulator unlawfully ‘circumvent[s] a technological measure that effectively controls access to a work protected under’ the Copyright Act.”

It seems as though Dolphin has, somewhere along the way, ended up incorporating an “illegal number“, the Wii Common Key which is used for real time decryption of game data.

Here’s ModernVintageGamer’s breakdown of this:

This raises questions about the future of the Dolphin emulation project in general, and even what Nintendo’s overarching goal is here. If they were fully committed to this line or argument, they could have sought to have Dolphin taken down from Github, but they have instead targeted the upcoming Steam release, perhaps as to keep it out of a truly mainstream audience without really testing the argument in the courts. Alternatively, it could just be a first step and they’re coming for the wider project next.

This is something that Dolphin needs to address in general, either way, and other emulators and emulator platforms such as RetroArch (which is currently available on Steam) do not include these copyrighted keys.

Source: Dolphin, via PCGamer

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