After being kicked off Steam, Dolphin emulator devs say Nintendo's legal claim 'is a reach': 'Now that we have talked to a lawyer, we are no longer concerned'
"The lawyers representing Nintendo... 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."
Six weeks after GameCube and Wii emulator Dolphin was removed from Steam due to a letter from Nintendo claiming it "violates Nintendo’s intellectual property rights," the emulator's developers have issued a detailed response on the Dolphin blog. The response, with input from legal counsel, announces that the Dolphin team will not be re-attempting to launch the emulator on Steam. "We are abandoning our efforts to release Dolphin on Steam," the post states. "Valve ultimately runs the store and can set any condition they wish for software to appear on it ... 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."
That announcement is just a brief portion of the post, however. More significantly, the Dolphin blog pushes back on Nintendo's claim that the emulator violates the Digital Millennium Copyright Act by including "proprietary cryptographic keys" used to decrypt Wii and GameCube games, and declares that it will not be removing the Wii's encryption key from its source code.
"This sounds extremely bad at a glance (and we certainly had a moment of panic after first reading it), but now that we have done our homework and talked to a lawyer, we are no longer concerned," the Dolphin team says. "We have a very strong argument that Dolphin is not primarily designed or produced for the purpose of circumventing protection."
This specific element of Nintendo's claim against Dolphin requires a bit of explanation, because it was widely (and heatedly) discussed after the emulator was removed from Steam. In a video that pulled in nearly 300,000 views, prominent game developer and emulation community member ModernVintageGamer said that "Dolphin have kind of messed this up," citing the inclusion of the Wii AES-128 Common Key used to decrypt games in the emulator source code.
MVG linked to the Wikipedia page describing an illegal number, and that same link was widely shared in Reddit discussions in the wake of Dolphin's removal from Steam, essentially treating it like a smoking gun. In this one on r/smashbros, for example, the Reddit wrote: "I'm a programmer myself and Dolphin unfortunately used illegal numbers in their software. The Dolphin team should be lucky that only the Steam version was taken down and not the source code itself."
In today's blog post, the Dolphin developers deny that including the Wii Common Key in the emulator violates the anti-circumvention provisions of the DMCA, which forbids technology that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title."
"Considering that only a small fraction of what we do involves circumvention, we think that the claim that we are 'primarily for circumvention' is a reach," says the Dolphin team. "We do not believe this angle would 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 blog cites the reverse-engineering portion of copyright law, which allows for circumventing a technological measure "for the purpose of enabling interoperability of an independently created computer program with other programs." The Dolphin developers cite this full section of copyright law as "a significant legal protection for emulation in the US," and the reason why "Nintendo has yet to legally challenge any emulator with the DMCA anti-circumvention clauses despite the law going into effect 25 years ago."
"We do not believe that Dolphin is in any legal danger," the post concludes. Planned features for the Steam release of Dolphin, including a "Big Picture" UI with controller support, will still be finished and made available in the emulator in the coming months.