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On Friday, Nintendo took legal action by issuing a DMCA takedown notice against Dolphin, an open-source GameCube and Wii emulator, preventing its upcoming release on the Steam platform.
The development team had previously created a Steam page on March 28 and announced the emulator’s progress on the Dolphin blog. They expressed their excitement, stating, “We’re thrilled to finally unveil our latest experiment to the world. After months of hard work, we can’t wait to put it in the hands of users!”
PC Gamer reviewed the official legal notice, addressed to Valve’s legal department and dated May 26, 2023. The document emphasized that the Dolphin emulator infringed upon Nintendo’s intellectual property rights, including the Anti-Circumvention and Anti-Trafficking provisions of the Digital Millennium Copyright Act (DMCA), specifically 17 U.S.C. § 1201. Consequently, Nintendo demanded the removal of the Dolphin emulator from the Steam store.
According to the DMCA, service providers like Valve, in this case, receive such notices and are obligated to inform the allegedly infringing party, in this case, the Dolphin development team. The team now faces a choice: they can either file a counter-notice with Valve, asserting that the emulator does not violate the DMCA as claimed by Nintendo, or comply with the takedown request. If they decide to file a counterclaim, Nintendo has approximately two weeks to decide whether to pursue legal action. If Nintendo refrains from suing, Dolphin could potentially be reinstated on Steam.
The key question is whether Nintendo would indeed proceed with legal action and, if so, what the outcome would be. The ruling would have significant implications for emulation, as a victory for Nintendo would likely deem most, if not all, emulators of modern game systems in violation of the DMCA’s anti-circumvention provisions. Conversely, a favorable ruling for Dolphin would be a substantial vindication for the emulation community.
Past lawsuits involving emulation, such as those initiated by Sony against Bleem! and Connectix, found that the emulators did not violate copyright by utilizing the PlayStation BIOS and firmware. These cases have long served as precedents upholding the legality of emulation in the United States. However, Nintendo’s argument in this instance would likely be based on different legal grounds.
The DMCA letter addressed to Valve cites the anti-circumvention language of the DMCA, asserting 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.”
As of now, Dolphin remains unavailable on Steam, while its GitHub page and website remain unaffected. The emulator developers have not received any direct communication from Nintendo or takedown notices pertaining to other platforms hosting the emulator.
The Dolphin development team expressed disappointment in a blog post, stating, “We regretfully announce the indefinite postponement of the Dolphin on Steam release. Valve notified us that Nintendo issued a DMCA against Dolphin’s Steam page, resulting in its removal until the matter is resolved. We are currently exploring our options and will provide a more detailed response soon.”
An inquiry has been made to Valve regarding the DMCA notice, and any response received will be included in further updates to this news story.
