The Dolphin project has broken the silence regarding their legal tussle with Nintendo and Valve, giving a far more detailed elaboration of what, exactly happened.
First things first – Nintendo did not send Valve or Dolphin a Digital Millenium Copyright Act (DMCA) section 512(c) notice (commonly known as a DMCA Takedown Notice) against our Steam page. Nintendo has not taken any legal action against Dolphin Emulator or Valve.
What actually happened was that Valve’s legal department contacted Nintendo to inquire about the announced release of Dolphin Emulator on Steam. In reply to this, a lawyer representing Nintendo of America requested Valve prevent Dolphin from releasing on the Steam store, citing the DMCA as justification. Valve then forwarded us the statement from Nintendo’s lawyers, and told us that we had to come to an agreement with Nintendo in order to release on Steam. Considering the strong legal wording at the start of the document and the citation of DMCA law, we took the letter very seriously. We wanted to take some time and formulate a response, however after being flooded with questions, we wrote a fairly frantic statement on the situation as we understood it at the time, which turned out to only fuel the fires of speculation.
So, after a long stay of silence, we have a difficult announcement to make. We are abandoning our efforts to release Dolphin on Steam. Valve ultimately runs the store and can set any condition they wish for software to appear on it. But given Nintendo’s long-held stance on emulation, we find Valve’s requirement for us to get approval from Nintendo for a Steam release to be impossible. Unfortunately, that’s that.
The post also goes into greater detail about the Wii Common Key that’s been part of Dolphin’s codebase for 15 years. This key was originally extracted from the GameCube hardware itself, and a lot of people online claimed that Dolphin should just remove this key and all would be well. After consulting with their lawyers, Dolphin has come to the conclusion that including the key poses no legal risk for the project, and even if it somehow did, the various other parts of the Dolphin codebase that make emulation of original games possible would pose a much bigger legal threat anyway.
So, the team will keep on including the key, and the only outcome here is that Dolphin will not be available on Steam.
If you want dolphin, go to their website and download it. Steam feels a very odd delivery mechanism to me. Its not like you could get games via dlc.
Yeah I have to agree, getting any emulator from Steam just feels weird. I know there are “official” emulators on the platform, like “Sega Megadrive & Genesis Classics”, but those are officially sanctioned and you have to buy the games separately to play them. I honestly feel I should never have to re-purchase a game I have tucked away in a box in the attic just to be able to play it on the screen in front of me.
It’s not about downloads, it’s about publicity and convenience, e.g. Steam offers discussion forums.
You mean, like this:
https://forums.dolphin-emu.org/
I mean Steam has over 100 millions users who already have accounts and are ready to participate in discussions vs. trusting their credentials to an obscure website and risking getting their emails forever finding their way in SPAM databases. Happens way too often if you ask me.
Also I have more confidence in Steam running 20 years from now, than in an obscure website which can disappear or drop their forums tomorrow. Again happens too often.
This is for convenience in Steam Deck.
There is of course “EmuDeck”, which you can download in the Desktop mode (Steam Deck comes with a fully functional Arch / KDE desktop). And then download Dolphin in there.
But then the additional layer causes some stuttering issues in the default config:
https://www.reddit.com/r/SteamDeck/comments/v7rfvc/i_downloaded_dolphin_through_emudeck_and_so_far/
(Most likely due to Steam OS frame rate limits, though. But I need to research a bit more).
So I was right: the “solid legal theory” turned out to be completely baseless.
It also illustrates again why app stores are a bad idea, no matter what the platform; Steam won’t allow this emulator purely because some other company doesn’t like it. It is just adding another layer of arbitrary censorship and DRM. Anyone who uses Steam is helping to bring about and maintain this state of affairs.
Minuous,
Personally I believe users who own the games should be allowed to use Dolphin. But I still think it’s legally questionable to distribute parts of the firmware and keys. Nintendo are smart enough to know about the streisand effect and how even court orders won’t stop distribution. They are probably better off not calling attention to the project. Consider how hollywood used the DMCA to blocking DeCSS (ie DVD decryption). The courts agreed, but they lost badly in the real world where court orders were completely ineffective despite their legal basis.
I’d also prefer a model where users and developers don’t have to rely on a middle man. I don’t like DRM either, but I do want to point out that steam DRM isn’t forced onto applications. It’s available for steam developers if they choose it but they’re free to use other DRM or none at all.
Nintendo likely knows the courts won’t necessarily rule in their favor on this as proper reverse engineering to run software on something else has long stood up to legal tests. It is not in their interests to actually pursue the matter legally, just threaten and hope they get what they want. They know Valve doesn’t want to spend money on that legal battle, and Dolphin doesn’t have the money to spend on it.
dark2,
I kind of doubt Dolphin have the resources to fight nintendo. That aside, it’s not clear to me what their odds of winning would be. Do you have similar examples that have gone to trial?
It seems evident to me that they are infringing on Nintendo copyrights and protection measures under the DMCA. A lawsuit by nintendo has merit, but it would have to come down to whether dolphin can make a fair use defense. Honestly I find little consistency when it comes to fair use cases, with cases frequently going one way and people overturned on appeal. This is because it’s not about whether copyrights are infringed (they are), but whether infringement should be allowed, which is quite subjective.
Sega V. Accolade would be the main one. Reverse engineering and displaying Sony/Nintendo trademarks to get around lock outs were ruled to be fair use. While copyright isn’t trademark, most of the arguments would be exactly the same (they share almost no code with Nintendo other than the very small required decryption keys, everything else is original, the only purpose of including it is to keep competitors out and that’s not a protected use of copyright law, etc.). For Nintendo a court case that would challenge the DMCA with emulator law might break their favorite legal take down tool and further officially legalize emulators.
dark2,
I’m not familiar with the case, but I’ll try and find time to look it up when I’ve got more time.
I don’t see why not? Keeping competitors from copying a work is at least implied, if not expressed by most creators, no? I did search DMCA law and did not find any mention of “competitor”. I’m trying to be open minded, but I don’t see why being a competitor would give anyone a right to infringe. Can you elaborate?
I’d be interested in having a link to this “emulator law” 🙂
It sounds like you may have already read this, but I happen to agree with the article’s claim that nintento has a legitimate argument, though it may not be a slam dunk and dolphin might be able to circumvent it by having the user enter the key rather than including it inside of dolphin.
https://arstechnica.com/gaming/2023/05/the-solid-legal-theory-behind-nintendos-new-emulator-takedown-effort/