 You may have seen or heard the news about @dolphin / Valve / Nintendo from a few hours ago. If not, read e.g. https://www.pcgamer.com/nintendo-sends-valve-dmca-notice-to-block-steam-release-of-wii-emulator-dolphin/ from the amazing @wes. Unfortunately pretty much everyone has been getting the legal details wrong, incl. Dolphin themselves on their blog (now fixed). Quick thread with my personal summary of the situation. 12 comments
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: 1. Valve legal contacted Nintendo of America to ask "hey, what do you think about Dolphin?" This is very much *not* a section 512(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. EOT Short FAQs 14h later to answer a few things: - What do you know about any of this in the first place? → I've been involved with Dolphin for 10+ years as a {core developer, infra maintainer, foundation board member}. More recently (since Mar 2022) I did the administrative work to onboard Dolphin on Steam. Funnily enough the notification Valve sent to the Foundation was still addressed to me personally even though I've stepped down recently :) - Why is Dolphin shipping with the Common Key instead of asking users to provide it? → Who knows! This decision was made around 15 years ago. It's easy to say with hindsight "why do you do things differently", but back then this was a fairly new situation. I wouldn't be surprised if soon we get contributors to the project that were born after this decision was made :) - Why not change that and not ship the Common Key? → Maybe the current devs will. Personally, I don't think it's useful or likely to change anything. Anti-circumvention is about providing a technical mean to bypass copy protection. If you think Dolphin violates this, the common key isn't the problem, the whole "decrypting Wii discs" feature is the problem. - Is Dolphin at risk? → I don't think the project is more at risk than in the last 15 years (pretty sure I'm jinxing it). It took Valve literally poking NoA legal for this takedown to happen. For all the shit people are giving Nintendo, I think they've been generally good to their emulation communities. Hopefully this continues! And (probably) final update in this thread: PC Gamer have updated their article after talking to an IP lawyer: > "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 would (in Nintendo’s view) violate the DMCA," says attorney Kellen Voyer of Voyer Law, which specializes in intellectual property and technology law. Looks like at least one lawyer shares my analysis :-) |
Gregory's Server
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.