Nintendo pushes to remove Dolphin from Steam

[TheSeedSprout]

Summary

While Dolphin, an open-source emulator of GameCube and Wii games, was intended to be released on Steam later this year, Nintendo issued a DMCA take-down against Valve.

 

Quotes

Quote

 "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!'"

 

My thoughts

 I'm honestly sure that if Nintendo attempts to get rid of Dolphin, then there are at least two cases where Sony tried to kill emulation two decades ago but failed. If Nintendo succeeds though, then this could mean the end of emulation as we know it.

 

Sources

 Quote: https://www.pcgamer.com/nintendo-sends-valve-dmca-notice-to-block-steam-release-of-wii-emulator-dolphin/

 Another article on the take-down notice: https://www.nintendolife.com/news/2023/05/dolphin-emulator-steam-release-indefinitely-postponed
 Dolphin's blog post about the ordeal: https://dolphin-emu.org/blog/2023/05/27/dolphin-steam-indefinitely-postponed/

Update via Modern Vintage Gamer:

 

[WereCat]

Not sure iv Valve decides to fight this but if anyone can it's probably them. I hope they'll at least try.

[Taf the Ghost]

At some basic level, all Warfare is based around Rates of Attrition. While the final result would be a Nintendo loss, they have the resources to wear down the small team behind Dolphin.   But the same measure, at some practical reality for IP law, Nintendo probably has to do something.

 

Video Games exist in this weird space where the end result in most legal interactions between Publishers and Users are fairly easy to "game out", but that end result is after several years and probably 5+ million dollars in legal fees. And, we've been in this spot for a number of years because no one gains anything from actually fighting it out in courts. To be clear, Reverse Engineering is completely legal in the USA and backing up your owned, physical copies of media is also completely legal. 

 

This interrelates to the issues around gaming streaming. Publishers would actually lose horribly in court over their control over the streaming of games. Mostly for the same reason if Microsoft claimed distribution rights over everything made in PowerPoint. Games are uniquely produced instances of the code that is sold by the Publishers and not Motion Pictures, and thus very different legal constructions. That said, that's about visuals. Publishers could win over Music Rights. LOL. (There's over 100 years of legal framework about public presentation around music and the rights therein. )That's part of why no one wants to ever push those cases. It could backfire horribly on everyone, where both sides actually end up losing horribly. Think of the havoc a DMCA complaint could do if a US Court rules that the video can't be claimed but the audio can? It's that type of reason why these actions by Nintendo and others happen. This stuff always gets settled before it goes too far because the consequences of a case going badly against the Publishers is actually too high.

[AlTech]

This is honestly getting out of hand. The dolphin emulator people have done nothing wrong and a court needs to put Nintendo in their place.

[soldier_ph]

Nintendo do be crying.

[saltycaramel]

23 minutes ago, AluminiumTech said:

This is honestly getting out of hand. The dolphin emulator people have done nothing wrong

Looks like they’re legally in the wrong:

 

 

tldr: there are Nintendo keys in the code

 

I suppose they could remove them and let the user look for them..

[Djuntas]

Worst part about emulation is that we just wan't to play their games in a better way. Were prolly their biggest fans.

 

I recently last year tried my first emulated game, pokemon black/white 2, which was made way harder than the original game. It was also very good to try and play pokemon on a PC, better graphics, you can speed up the game (running fast etc) and other QOL. I have bought 4 copies of gen5 so I know the gen very well, but this rom actually was cool to play even for me.

[wanderingfool2]

3 hours ago, Taf the Ghost said:

To be clear, Reverse Engineering is completely legal in the USA and backing up your owned, physical copies of media is also completely legal. 

Yes and no for reverse engineering.

 

So to address a bit of the elephant in the room.  If Nintendo can show that any of the developers accessed any of the leaked sources or utilized any of the leaked sources to help reverse engineer the entire project gets tainted with it.

 

If they show they didn't operate fully in a clean room development they could claim copyright infringement (which is why the clean room concept is important).

 

Nintendo could also fight it out in court about how the interoperability exception applies, trying to claim that it doesn't apply based on the definition given in the law.

 

As a note about backing up your own copies of games, Dolphin existed prior to "online games" being included by the library of congress.  iirc as well the library of congress has to keep writing in the exception every x amount of years as well or it expires and becomes unlawful again.

[Zodiark1593]

3 hours ago, AluminiumTech said:

This is honestly getting out of hand. The dolphin emulator people have done nothing wrong and a court needs to put Nintendo in their place.

Including the decryption keys is a pretty big oversight on the devs' part, that provides Nintendo ammunition to issue takedown requests.

 

That said, I've little doubts that Nintendo would've known about this bit for some time (they certainly have the resources and persistence to keep up on the source code), but refrained from pursuing the matter in court. The concept of "Illegal Numbers" is somewhat shaky legal ground, and it's probable that Nintendo doesn't want to risk destroying the precedents already made. Additionally, seeking legal action will not have a practical impact, as the source code and disputed information are already readily available, potentially rendering them subject to the Streisand Effect.

 

Quite likely, I think Nintendo will probably use this ammunition to antagonize Dolphin, and prevent it from being distributed on storefronts (reducing propagation, and stunting income for the devs), however, I don't think they will initiate direct legal action, at least, in the immediate future.

 

Though, in case I'm wrong, I made sure to back up the source code anyway.

[Quackers101]

got to love nintendo, and so many are encouraging piracy of their titles due to this. Also if they could have benefitted from more sales due to emulation??
To how nintendo loves the community fixes, but hate when they share it. so yeah **** the big N
*updates old hardware recently to "brick" them of community fixes*

race like you never have done before.

[Kisai]

8 hours ago, AluminiumTech said:

This is honestly getting out of hand. The dolphin emulator people have done nothing wrong and a court needs to put Nintendo in their place.

Do realize the reason for this is the same as the reason on the Microsoft store. The stores get the programs on to other devices (eg the steamdeck.)

 

That said, the minute Nintendo shut down the eshop for the console, that was certifying that the platform is dead and they have no interest in maintaining it or making money from it. Let the open source nerds have their fun. 

 

Realistically, they are trying to get rid of it from steam because it allows people to play pirated games. Nothing more. It only plays pirated games, because there is no way of actually dumping the games legally. Nintendo pretty much loses the argument that they are losing revenue from it existing because they themselves ARE NOT MAKING THE GAMES AVAILABLE TO BUY ANYWAY.

 

If it remains up, it gives this legitimization look that shouldn't be. I'd also make the argument of "Has Nintendo put ANY games on Steam?" Does Steam lose anything by pulling it? Nope. Nintendo has no leverage unlike over Microsoft. Unless you count the one version of Portal that Valve has on the switch.

 

 

[Sauron]

9 hours ago, TheSeedSprout said:

 I'm honestly sure that if Nintendo attempts to get rid of Dolphin, then there are at least two cases where Sony tried to kill emulation two decades ago but failed. If Nintendo succeeds though, then this could mean the end of emulation as we know it.

Dolphin has been widely available without being on steam for over a decade, this is petty but also pretty much useless.

[TheSeedSprout]

45 minutes ago, Kisai said:

Realistically, they are trying to get rid of it from steam because it allows people to play pirated games. Nothing more. It only plays pirated games, because there is no way of actually dumping the games legally. Nintendo pretty much loses the argument that they are losing revenue from it existing because they themselves ARE NOT MAKING THE GAMES AVAILABLE TO BUY ANYWAY.

 

You can dump the games legally in the US by using an original console, albeit modified. I have been doing this with every game I have on my laptop. All of my games are dumped from the original media, from the GameCube to Wii U games. Handhelds included, from the GBA to 3DS.

[Kisai]

3 hours ago, TheSeedSprout said:

 

You can dump the games legally in the US by using an original console, albeit modified. I have been doing this with every game I have on my laptop. All of my games are dumped from the original media, from the GameCube to Wii U games. Handhelds included, from the GBA to 3DS.

The process of the dumping the game requires you to do something illegal under the DMCA in the US.

 

That said, I'm not personally interested in having this conversation yet again on LTT. Nobody in their right mind cares what you do with your personal property. It's these stupid companies that want all the money and provide next-to-nothing except a paywall that I find offensive. Nintendo's switch online, is a joke, provides access to less than 10% of the games on any legacy console and zero from the GC/Wii/WiiU unless they ported them directly to the switch which can be counted on one hand.

 

Japanese companies would rather you stop playing old games and throw them in the garbage. So WHY the hell is Nintendo even caring about piracy when they aren't even providing the consoles or the games? Just because it's their right to do so, doesn't mean they have to.

 

I wish Nintendo would rip a page off SEGA and just absolutely ignore all the fan produced things, from emulators to fan-comics/fan-games of Mario. That would gain them far more PR than treating every thing with the word "Mario" in it with a plumber as made by some criminal mastermind. 

 

[Arika]

This is a confusing move from nintendo. they are trying to prevent it only from being on steam? but not trying to take down the entire project? there is NO way they didn't know about dolphin before now. seems like a very weird order of operations for someone as litigation-happy as the Red N

[TheSeedSprout]

28 minutes ago, Arika S said:

This is a confusing move from nintendo. they are trying to prevent it only from being on steam? but not trying to take down the entire project? there is NO way they didn't know about dolphin before now. seems like a very weird order of operations for someone as litigation-happy as the Red N

My exact thoughts. I wonder why Nintendo is just now trying to get it off a storefront instead of just taking it offline completely?

[SansVarnic]

As a Dolphin user myself this is sad. I only use dolphin for games I own and most of those are for the 64 and Game Cube which are not available on the switch. And besides why should I have to buy the game again to play on the switch [if they were available] since I already own the games. Yeah, I will continue to use Dolphin regardless. 

I use dolphin on PC not the steam deck anyhow so atm this may not affect me immediately.

[wanderingfool2]

3 hours ago, Kisai said:

The process of the dumping the game requires you to do something illegal under the DMCA in the US.

Actually not really.  The library of congress exception for games does make it legal to dump your game for the purposes of backup and same with the reverse engineering.  The issue is that some parts of it weren't granted exceptions until recently (online games).  The physical games though has been in an exception for quite some time now (but iirc it needs to keep getting renewed).  The exception allows you to bypass the nasty bits of DMCA where it's talking about bypassing the security measures.

 

The argument that the Dolphin community likely would use is in regards to the interoperability, which is one of the allowed use-cases as well for bypassing security.

 

12 hours ago, Zodiark1593 said:

Including the decryption keys is a pretty big oversight on the devs' part, that provides Nintendo ammunition to issue takedown requests.

It's like saying VLC provides the decryption keys for DVD's and it being an oversight.  They have to have a method of decrypting in order to actually play/read the game; just like how VLC had to provide the decryption keys for DVD and Blu-Ray to play them.

 

12 hours ago, Zodiark1593 said:

Nintendo doesn't want to risk destroying the precedents already made.

What precedent?  https://en.wikipedia.org/wiki/Sega_v._Accolade

Accolade won and was able to make their own cartridges, showing reverse engineering was allowed.

[demonix00]

17 hours ago, wanderingfool2 said:

What precedent?  https://en.wikipedia.org/wiki/Sega_v._Accolade

Accolade won and was able to make their own cartridges, showing reverse engineering was allowed.

You seem to have forgotten nintendo v tengen where instead of just figuring out the 10nes security lock out chip to make their own variant they decided to LIE to gain access to the 10nes code and just xeroxed it into their rabbit chip.

[TheSeedSprout]

14 minutes ago, demonix00 said:

You seem to have forgotten nintendo v tengen where instead of just figuring out the 10nes security lock out chip to make their own variant they decided to LIE to gain access to the 10nes code and just xeroxed it into their rabbit chip.

The issue here isn't that Dolphin ripped the code straight off the Wii, well, except for the encryption key apparently, but it's that Tengen outright committed fraud and copied the code straight out of the copyright, masquerading as if they were currently needing it for an ongoing court case.

[wanderingfool2]

7 hours ago, demonix00 said:

You seem to have forgotten nintendo v tengen where instead of just figuring out the 10nes security lock out chip to make their own variant they decided to LIE to gain access to the 10nes code and just xeroxed it into their rabbit chip.

That's not precedent setting.  In the literal case they failed to reverse engineer it so they just stole the source code.   Two very different things.

 

It's like the same difference of saying someone backing up their games, vs ripping the games to sell online.  Literally they used a similar defense that the case I showed used, except they failed because it doesn't qualify as fair use when you stole the code to begin with.

 

Literally on the wiki article about atari v nintendo with the 10nes, it even mentioned the case I presented as setting the record straight that reverse engineering was legal.

 

I actually hope Leonard French does a video on this, it would be interesting to see his take on it (with the use of decryption keys, as that's going to be the one that's the hardest to get around).

[jagdtigger]

15 hours ago, demonix00 said:

You seem to have forgotten nintendo v tengen where instead of just figuring out the 10nes security lock out chip to make their own variant they decided to LIE to gain access to the 10nes code and just xeroxed it into their rabbit chip.

If reverse engineering wasnt legal microsoft wouldve crushed wine(+proton) and reactos a very long time ago......

[Dragonwinged]

 So from what I understand about copyright, the company has to actively enforce it. The government won't do it for you. According to MVG's video, this common key has been available in Dolphin since 3.0, about 12 years ago. My guess is this is long past time for their copyright of these keys to be enforced. And again, they're not trying to take down the project altogether, just keep it from launching on steam. It's still available on the Discover app store that steam deck uses by default. It's also available on android and has a functioning build for the xbox s/x, and nintendo didn't enforce their copyright then, so a judge might tell them they waited too long. 

[gjsman]

9 minutes ago, Dragonwinged said:

 So from what I understand about copyright, the company has to actively enforce it. The government won't do it for you. According to MVG's video, this common key has been available in Dolphin since 3.0, about 12 years ago. My guess is this is long past time for their copyright of these keys to be enforced. And again, they're not trying to take down the project altogether, just keep it from launching on steam. It's still available on the Discover app store that steam deck uses by default. It's also available on android and has a functioning build for the xbox s/x, and nintendo didn't enforce their copyright then, so a judge might tell them they waited too long. 

Sorry, but no dice. There is a law specifically protecting keys like this (DMCA Section 1201), and it had no expiry. You could call these keys “super-copyrighted” if you will because the protections are beyond normal copyright.

 

Under 1201, circumventing *any* “technological protection measure” (TPMs) for *any* reason unless there is an exception (*even* the otherwise legal or fair use or legal backup) is illegal. Sounds crazy? The Electronic Frontier Foundation confirms it in their Coder’s Rights guide.

Distributing keys is about as clear a violation of 1201 as you can get. See DeCSS and AACS controversies. The movie studios won legally both times. An AES-128 key that protects Nintendo games? It’s basically AACS, but for video games, a category that has *zero* DMCA exceptions unlike movies. Slam dunk case.

 

It also does not matter under 1201 if you find a way to crack a title without distributing keys. VLC figured out that you could just brute-force all possible DVD decryption keys but no dice - it’s *still* a 1201 violation despite containing no keys; and VLC has a legal disclaimer for US downloaders though everyone ignores it. The only reason VLC wasn’t sued to oblivion is because there isn’t a DMCA in Europe and Software Patents aren’t a legal concept.

[gjsman]

On 5/28/2023 at 12:13 AM, wanderingfool2 said:

What precedent?  https://en.wikipedia.org/wiki/Sega_v._Accolade

Accolade won and was able to make their own cartridges, showing reverse engineering was allowed.

Unfortunately, this legal case is actually obsolete. It was decided before the DMCA was law (and before the protections against “circumvention” were even written), and Nintendo’s first console to use digital signing and other DMCA-1201-protected countermeasures and digital signatures was the Wii. 
 

In which case, Sega v Accolade, if Sega had used digital signing and had the DMCA at the time, would very likely go for Sega.