Nintendo issued a DMCA (Digital Millennium Copyright Act) to valve as a request to take down a product that violates Nintendo’s intellectual property rights.”
The letter which was sent by the Nintendo legal team to valve; states that dolphin violates their intellectual property rights. Valve further went ahead to review the letter with their lawyer, and later found out that the letter was missing a key feature of DMCA takedown request; copyright infringement.
Image of Nintendo PSP
Valve product dolphin is not yet available for download on steam, and so far, cannot be considered as a violation of intellectual property.
According to Attorney Kellen Voyer (Voyer Law):
“I would characterize this NOT as a DMCA take down notice and instead as a warning shot that the software, Dolphin, if released on Steam (in Nintendo’s view) violates the DMCA.” – source pcgamer.com
The developers of GameCube and Wii emulator of Dolphin received a legal notice from Nintendo on Friday, warning them against the forthcoming release on Steam.
The development team, on march 28th 2023 launched a steam page, and also announced it on the dolphin blog, which stated: “We are 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 user’s hands soon!”
The legal notice dated 26th May 2023, which was addressed to Valve’s legal team stated:
“Because the Dolphin emulator violates Nintendo’s intellectual property rights, including but not limited to its right under the Digital Millennium Copyright Act (DMCA)’s Anti-Circumvention and Antitrafficking provisions, 17 U.S. § 1201, we provide this notice to you for your obligation to remove the offering of the Dolphin emulator from the Steam store.”
DMCA take down notices are usually sent to service providers, requiring valve in this situation to inform the alleged infringing party. However, this letter would be considered as a “warning shot” rather than an act against copyright infringement, as it does not follow the procedures of a DMCA takedown.
In a standard DMCA procedure, the Dolphin game development team would have the recourse to file a counter-suit, if it considers their product not violating any copyright’s. If they do file a counter-motion, as outlined by the copyright alliance, that would give Nintendo a two weeks grace period to decide whether to sue for claims.
If the Nintendo team decide not to sue, that would give the game developers of dolphin, rights to re-add the game to steam. In the midst of troubled waters, and not to create a storm out of it, Valve on Friday voluntarily decided to remove Dolphin’s steam store page, based on the warning received from Nintendo.
Only possibility of bringing the game back to steam, would be a further discussion with Valve.
In the midst of the disagreements and differences, we are faced with the opinion if Nintendo would have issued an official DMCA takedown notice or take legal actions, if Dolphin was released truly on steam. A verdict on both directions, would have great consequences for emulations, as majority if not all modern game emulators could likely be held in violation of the DMCA’s evasion if Nintendo were to come out on the winning edge.
However, if the ruling were to be in Dolphin’s favour, it would be an advantage towards the emulation industry.
It should also be known that previously Sony filed an emulation lawsuit against Bleem! And Connectix, and a review found that both company’s emulators had not violated copyrights with their use of PlayStation BIOS and firmware.
According to the letter received by Valve, which cites the violation of the DMCA and claims that “The Dolphin emulator operates by incorporating these cryptographic keys without Nintendo’s authorization and decrypting ROMs at or immediately before runtime. Thus, the use of Dolphin emulator unlawfully circumvents a technological measure that effectively controls access to a work protected under the Copyright Act.”
Although Dolphin has remained off steam for the time being, however its GitHub page and website are not affected. The developers haven’t at this time received any notices or DMCA’s from Nintendo targeting other places where they hosted the emulators.
According to their Development team:
“It is with much disappointment that we have to announce that the Dolphin on Steam release, has been indefinitely postponed. We are currently investigating our options and will have a more in-depth response in the near future.”
Please do let us know in the comment section what are your thoughts about this.