General Emulation Discussion

Quick thread with my personal summary of the situation.

Disclaimer: I'm not officially involved with Dolphin anymore. I was the treasurer for the foundation backing the project for a while (technically still am for a month), but I've stepped down from the project a month or so ago. So, still plenty of context, but not much at stake for me.

The error that many have done in their reporting is to say this was a "DMCA takedown notice" or "DMCA notice" or (ugh) "DMCA". This was none of these things.

The DMCA is a broad set of laws that includes, a process for copyright owners to ask publishers to take down data. This is defined in sect. 512(c) of the copyright act, and it comes with some requirements from the claimant side of things (here: Nintendo), and some liability on the publisher side of things (here: Valve). It also includes rights for the entity accused (here: the Stichting Dolphin Emulator) to counter claim, allowing the publisher to reinstate the content until the claimant sues.

In this case, none of this process was followed. To the best of my understanding, this is what happened:

Valve legal contacted Nintendo of America to ask "hey, what do you think about Dolphin?"

Nintendo replied to Valve "we think it's bad and also that it violates the DMCA anti-circumvention provisions" (note: nothing about violating copyright itself). Also "please take it down".

Valve legal takes it down and forwards NoA's reply to the Dolphin Foundation contact address.

This is very much not a section 502(c) takedown! Just standard legal removals / C&D between two companies.

This has some interesting and sad consequences:

Dolphin is not a party into any of this. Valve's ToS likely allows them to take down anything for any reason they want. There's no counter claim process or anything like this.

Valve could have decided to ignore Nintendo with ~ no liability. They decided to just do whatever they were asked, and that's not surprising given they initiated contact in the first place.

Dolphin probably has no recourse here to get any other outcome from Valve, but also no particular risk or liability.

Now onto Nintendo's legal claims: nobody can tell for sure whether Dolphin is in the right, or whether Nintendo is in the right. Like all legal matters, there is a lot of space for interpretation.

Dolphin does distribute the Wii AES-128 Common Key which is used to encrypt Wii game discs. This isn't required in theory, the tools that dump game discs could just dump decrypted images, in fact that might be easier than dumping encrypted images (the decryption is done transparently by the Wii OS).

Whether that's allowed by exception clauses for interoperability, whether that's allowed by some kind of fair use clause, whether Nintendo's broken DRM actually counts as an effective copyright protection measure, etc. -> only a lawsuit could decide that. Your guess is probably as good or as bad as anyone else's.

"Wii and Nintendo GameCube game files, or ROMs, are encrypted using proprietary cryptographic keys. 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. § 1201(a)(1). 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 . . . .” 17 U.S.C. § 1201(a)(2)(A).3"

"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.

We have a very strong argument that Dolphin is not primarily designed or produced for the purpose of circumventing protection. Dolphin is designed to recreate the GameCube and Wii hardware as software, and to provide the means for a user to interact with this emulated environment. Only an incredibly tiny portion of our code is actually related to circumvention. Additionally, GameCube games aren't actually encrypted at all, and Dolphin can also play homebrew and is used in the development of game mods. There are even homebrew and mods that specifically target Dolphin as its own platform, given that it has the ability to emulate more memory and processing power than is possible on the original consoles. That's why there are "Dolphin modes" in many modern homebrew games!

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. 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."

"...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.

17 U.S.C. § 1201(f)(2)"