On Friday, the developers behind open source GameCube and Wii emulator Dolphin received a DMCA takedown notice from Nintendo blocking 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, notices like this one are sent to service providers—Valve, in this case—who then must notify the allegedly infringing party. The Dolphin development team has the option to file a counter-notice with Valve if it believes the emulator doesn’t violate the DMCA as Nintendo claims, or to comply with the takedown. If the team does file a counterclaim, as explained by Copyright Alliance, Nintendo has about two weeks to decide whether to sue. If it doesn’t, Dolphin could then potentially be re-added to Steam.
The question is whether Nintendo would truly pursue legal action in this case—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 DCMA 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 were notified by Valve that Nintendo has issued a DMCA against Dolphin’s Steam page, and have removed Dolphin from Steam until the matter is settled. 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.
