While Nintendo loves a lawsuit and emulation is often a contentious issue for publishers, few situations have been quite as high-profile as the recent attempt to launch GameCube and Wii emulator Dolphin on Steam. The 20-year-old emu engine has long been available online, but this attempt to become more “mainstream” ended pretty predictably. But now, after a few months of silence, the emu’s creators have spoken up and claimed Nintendo’s suggestions that their software breaks the law are completely false.
Back in March, it was revealed that the well-loved emulator Dolphin would receive a surprise release on Steam. The software, used to run both GameCube and Wii games on modern hardware, had a store page on Valve’s PC gaming store, giving the unlikely impression that the decades-old emulator was going mainstream. Inevitably, this caused consternation, with initial reports saying Nintendo issued demands to Valve that the page be removed and the software not distributed on Steam.
It was later revealed that, in fact, it was Valve that went running to Nintendo to tattle on the project, with a Nintendo of America lawyer then requesting it be removed, using the DMCA as its rationale. Dolphin, claimed Nintendo, “unlawfully circumvents” its cryptographic keys, and so distributing the software “constitutes unlawful traffic” of their rights. Incredibly, Valve then approached the developers behind the emulator, Dolphin Emulator Project (DEP), saying they needed to negotiate whether the software could release on Steam with Nintendo.
Which is some shit.
As a result of this, and consultation with lawyers, DEP has decided to abandon its attempt to release the project on Steam entirely. The situation Valve has created, it says, is an impossible one: to be required to seek Nintendo’s permission to release a product on Valve’s store isn’t a thing, can’t be done, and so “that’s that.”
However, DEP wasn’t done there. The group has been seeking legal advice and says it’s pretty certain Nintendo’s claims about unlawful circumvention are completely wrong and strongly believes that Dolphin is legal.
Why Dolphin is likely not illegal
Emulation has always been a thorny area in gaming, with its moral quagmire of preservation versus piracy, and copyright versus copies available. Add to that the fact that building an emulator in itself is not an illegal act. For the vast majority of aged games, emulation is the only way available to play them on modern machines. However, for the IP owners, it’s often viewed as a threat to their profits, especially for companies like Nintendo that like to endlessly regurgitate their classic games on their latest consoles at modern prices.
Projects like Dolphin are seemingly not illegal, given they can be used to run homebrew games and applications, developed by fans of an abandoned console. And the emulators themselves most often contain no pirated material or illegal software. That most people use them to run pirated ROMs of classic games is, technically, not on the emulator developers.
In this instance, however, things became more complicated over claims that Dolphin had broken Nintendo’s encryption for the Wii, using something called the Wii Common Key. This Wii Common Key was part of the original console, used to decrypt the games on the discs, all as part of anti-piracy measures built into the system. This was a rudimentary block for pirates and was overcome with a pair of tweezers.
The release of the key occurred a couple of decades ago, went on to be freely shared across the internet and became part of Dolphin’s open-source code in 2009. No one, including Nintendo, has ever tried to prevent this, nor made any noise indicating they care. However, Nintendo’s response to Valve mentioned the key in its attempts to justify why Dolphin was a problem to the publisher.
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. 17 U.S.C. Distribution of the emulator, whether by the Dolphin developers or other third-party platforms, constitutes unlawful “traffic[king] in a technology…that…is primarily designed or produced for the purpose of circumventing a technological measure.
Dolphin is certainly not “primarily designed…for the purpose of circumventing a technological measure,” says DEP, but rather designed to emulate a piece of hardware as software so others can interact with the recreated environment as they wish. DEP describes circumvention as, “only a small fraction of what we do,” and lays out a series of arguments for why the software fits neatly within exemptions in the DMCA. It includes the reverse engineering exemption, which states,
…a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
DEP goes on to express its disappointment that so many in the wider community demanded that the developers remove the encryption key from Dolphin, given its conviction that it was not in violation of any laws, and indeed that Nintendo’s own letter didn’t make the claim that including the key violated U.S. copyright, because “a short string of entirely random letters and numbers generated by a machine is not copyrightable under current US copyright law. If that ever changes, the world will be far too busy to think about emulation.”
Nintendo has never taken an emulator to court, and given the company’s propensity to drag absolutely everyone they can through the legal system in the most brutal ways imaginable, that’s something of note. It strongly suggests Nintendo doesn’t think it would win if it tried. It’s incredibly murky territory, with the legality untested, and the results of doing so very likely to end badly for those who create hardware. It’s very likely in the strong interests of console manufacturers to never actually let this matter reach the courts.
Despite this, Dolphin will not come to Steam, seemingly primarily due to the actions of Valve rather than Nintendo. Kotaku contacted both companies regarding these claims to ask why certain decisions were made and based on what rules. In the meantime, Dolphin remains widely available and often the only way to play vast libraries of abandoned games without the original, no-longer-produced hardware. Whether this is morally or legally acceptable or not is up to you.
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