Update 5/28/23: This story originally characterized Nintendo's letter to Valve as a DMCA takedown request, as Nintendo cites provisions of the Digital Millennium Copyright Act while claiming that Dolphin "violates Nintendo's intellectual property rights." However, after reviewing Nintendo's letter with a lawyer, it's missing one of the key features of a DMCA takedown request—copyright infringement—because Dolphin is not yet available for download on Steam.
"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," says attorney Kellen Voyer of Voyer Law, which specializes in intellectual property and technology law.
"Here, there is no allegation that Valve is currently hosting anything that infringes Nintendo’s copyright or, more broadly, violates the DMCA. Rather, Nintendo is sending clear notice to Valve that it considers Dolphin to violate the DMCA and should it be released on Steam, Nintendo will likely take further action. Given that Valve controls what is available on its store, it made the decision not to wade into any dispute between the Dolphin developers and Nintendo and, instead, followed Nintendo’s preemptive request and took down the Steam page."
Valve has not yet responded to a request for comment. The story below has been updated to correct the language around the nature of Nintendo's letter.
On Friday, the developers behind open source GameCube and Wii emulator Dolphin received a legal notice from Nintendo warning against Dolphin's impending release on Steam.
The development team launched a Steam page on March 28 and announced it on the Dolphin blog, writing: "We're pleased to finally tell the world of our experiment. This has been the product of many months of work, and we look forward to getting it into users' hands soon!"
The legal notice, reviewed by PC Gamer, is addressed to Valve's legal department and dated May 26, 2023.
"Because the Dolphin emulator violates Nintendo’s intellectual property rights, including but not limited to its rights under the Digital Millennium Copyright Act (DMCA)’s Anti-Circumvention and AntiTrafficking provisions, 17 U.S.C. § 1201, we provide this notice to you of your obligation to remove the offering of the Dolphin emulator from the Steam store," reads the document.
Under the DMCA, takedown notices are sent to service providers—Valve, in this case—who then must notify the allegedly infringing party. However, as this letter was a "warning shot" rather than a notice of specific copyright infringement, it does not follow the mechanism of a DMCA takedown.
In a standard takedown situation, the Dolphin development team would have the option to file a counter-notice with Valve if it believed the emulator did not violate the DMCA. If the team did file a counterclaim, as explained by Copyright Alliance, Nintendo would have two weeks to decide whether to sue. If it didn't Dolphin could then potentially be re-added to Steam. But in Friday's incident, Valve voluntarily chose to remove Dolphin's Steam store page simply based on a warning from Nintendo, meaning Dolphin's only route back onto the store is a discussion with Valve.
The bigger questions are whether Nintendo would issue an official DMCA takedown notice if Dolphin was released on Steam or truly pursue legal action—and if it did, what would happen. A ruling in either direction would have far-reaching implications for emulation, as most if not all emulators of modern game systems could likely be held in violation of the DMCA's anti-circumvention provisions if Nintendo were to win the case.
If a ruling went in Dolphin's favor, it would likewise be a major vindication for the emulation scene.
Previous lawsuits to do with emulation, filed by Sony against Bleem! and Connectix, both found that the emulators had not violated copyright with their use of the PlayStation BIOS and firmware. Those lawsuits have long been used as a precedent to uphold emulation as legal in the United States, but it's a complex topic, and Nintendo's case here would likely be argued on different legal grounds.
The letter sent to Valve cites the anti-circumvention language of the DMCA and specifically claims 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."
For the time being Dolphin will remain off Steam. Its Github page and website remain unaffected—the emulator developers have received no direct contact from Nintendo or takedown notices targeting the other places where the emulator is hosted.
"It is with much disappointment that we have to announce that the Dolphin on Steam release has been indefinitely postponed," the Dolphin development team stated on its blog Friday. "We are currently investigating our options and will have a more in-depth response in the near future."
I've asked Valve for comment on the DMCA notice and will update this story if I receive a reply.
