Dolphin Team
A few months ago, the developers behind the Wii/GameCube emulator Dolphin said they were indefinitely postponing a planned Steam release, after Steam-maker Valve received a request from Nintendo to take down the emulator’s “coming soon” page. This week, after taking time to consult with a lawyer, the team says it has decided to abandon its Steam distribution plans altogether.
“Valve ultimately runs the store and can set any condition they wish for software to appear on it,” the team wrote in a blog post Thursday. “In the end, Valve is the one running the Steam store front, and they have the right to allow or disallow anything they want on said storefront for any reason.”
The Dolphin team also takes pains to note that this decision was not the result of an official DMCA notice sent by Nintendo. Instead, Valve reached out to Nintendo to ask about the planned Dolphin release, at which point a Nintendo lawyer cited the DMCA in asking Valve to take down the page.
At that point, the Dolphin team says, Valve “told us that we had to come to an agreement with Nintendo in order to release on Steam… 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.”
“As for Nintendo, this incident just continues their existing stance towards emulation,” the post continues. “We don’t think that this incident should change anyone’s view of either company.”
A legal defense
Despite the disappointing result for the Steam release, the Dolphin team is adamant that “we do not believe that Dolphin is in any legal danger.” That’s despite the emulator’s inclusion of the Wii Common Key, which could run afoul of the DMCA’s anti-circumvention provisions (as we discussed with some lawyers when the story first broke).
The Dolphin Team notes that the Wii Common Key has been freely shared across the Internet since its initial discovery and publication in 2008. And while that key has been in the Dolphin code base since 2009, “no one has really cared,” the team writes.
Moreover, the dev team writes that they “have a very strong argument that Dolphin is not primarily designed or produced for the purpose of circumventing protection.” That “primarily” is the key bit of language in the DMCA provision Nintendo cited in its letter to Valve, arguing that Dolphin is “traffic[king] in a technology… that… is primarily designed or produced for the purpose of circumventing a technological measure.”
But the Dolphin team asserts that “only an incredibly tiny portion of our code is actually related to circumvention.” Dolphin’s GameCube emulation, for instance, deals with completely unencrypted games, while the Wii emulation can be and is used for the development of homebrew software and entire game mods (some of which have “Dolphin modes” to make use of extended PC memory and features).
Because of this, and DMCA exemptions related to reverse engineering for interoperability, the Dolphin Team writes that Nintendo’s asserted DMCA complaints “would [not] be successful in a US courtroom, if it were ever to come to that. The reason the lawyers representing Nintendo would make such a leap is because they wished to create a narrative where the DMCA’s exemptions do not apply to us, as these exemptions are powerful and widely in our favor.”
The Dolphin Team does allow that “the law could easily be interpreted to say that circumventing a Wii disc’s encryption by any means is a violation.” Regardless, though, the team writes that the inclusion of the Wii Common Key in its source code should not affect that legal analysis. “In fact, we think that offloading decryption tasks onto a potential 3rd party application would make the situation worse for everyone. As such, we believe leaving the keys as they are is the best course of action.”
With what they believe is a firm legal footing, the team writes that Dolphin development will continue away from Steam, but including a number of UI and quality of life features originally designed for the Steam release. Meanwhile, emulators like RetroArch and the innovative 3dSen continue to be available on Steam, with no immediate sign of a further crackdown from Valve or Nintendo.