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So all day long, I've been racking my brain around this as I dealt with some family stuff and you know, had a little gathering and everything was all good, right? We're just doing the weekend thing. It's Memorial Day weekend in the United States. Most of the family are around. But this entire day has been a little bit wonky because of the headlines. The headlines are everywhere. Nintendo has gone after the Wii slash GameCube popular emulator, Dolphin. Now we know Nintendo doesn't like emulation. They've made no secret of it. They're not the only company by the way that doesn't like emulation, but gamers seem to give them all the hate for it. The only company to actually technically file a lawsuit against the emulator is Sony. We'll get into that later. But Nintendo is the one that gets the hate for it. And that's just the way it is. Maybe it's because Nintendo still goes after ROM websites really hard. I don't know. But we know Nintendo doesn't like emulation. This isn't a secret. Well, back on March 28th, the official Dolphin emulator website announced it was bringing the popular GameCube and Wii emulator to Steam. The main benefit of this, of course, being that with Steam Deck, you could actually run the emulator natively through the Steam operating system. So this would just be a big boost to Steam Deck in particular. It obviously could help people as well on Steam in general, on PC and Mac. But the idea here, of course, is that you could already just go download those emulators freely. If you want to do that on a Steam Deck, you have to install Windows and boot into other modes. And that's not what people want. They want everything to be native. And this was a way to make this emulator native. It did have a store page, but that store page is down right now. But early this morning, they updated the official Dolphin website with the following statement. The statement section had been edited. I don't have the original statement because the original statement apparently just straight up said Nintendo did a DMCA copyright claim, which isn't technically what they did. But here is what it says. It is with much disappointment that we have to announce that Dolphin on Steam release has been indefinitely postponed. We were notified by Valve that Nintendo was issued a cease and desist, citing the DMCA against Dolphin's Steam page, and have removed Dolphin from Steam until the matter is settled. We are currently investigating our options and will have a more in-depth response in the near future. Now, this in and of itself suggests that Nintendo issued a DMCA claim based cease and desist to Valve, claiming copyright infringement over Dolphin. Suggest is the keyword, as the post is lacking any explanation of the full events. Now, before we go into what has become a big mess of misreporting and misinformation all over the internet, we should know that Nintendo has lobbied on behalf of stricter copyright laws and can be found on the OpenSecrets.org website with a listing of a donation of $30,000 towards lobbying for stricter laws. Of course, this isn't that abnormal and most major corporations are throwing money behind lobbying that benefits them from a legal standpoint. But it is a note that Nintendo is, naturally, trying to get laws to change in ways that help them. Now, let's get to a specific issue. First, LuigiBlood on Twitter brought to light that technically if this was a DMCA claim, and note there is no legal filing at this time, Nintendo does indeed have a leg to stand on, possibly. This is because after the 3.0 update to Dolphin, keys were added natively to the emulator. These are encryption keys specifically for Wii and are 100% owned by Nintendo. So this is Nintendo's own work. This would give Nintendo grounds for a DMCA claim as having these keys present in the emulator does indeed make the emulator potentially violate copyright law. Potentially. The thing is, it is presumed these keys are a problem, however, it's never once actually been tested in court. If nothing else, however, it could give them grounds to pursue legal action and get it tested. So they could try to take it down over those keys and then go to court over it. Because hey, this hasn't actually been legally tested, it's just been presumed to be illegal. Of course, if Nintendo was actually going to go after them over the presence of the keys, why did they only go after it on Steam when they could go just after the emulator on the whole? We know Nintendo will not hold back and try to shut down emulation. That's because as it turns out, maybe they didn't go after them with a DMCA claim after all. Let's first dive a little deeper. An excellent article over on PC Gamer really gives a lot of the nitty gritty. First off, Nintendo wasn't the only gaming company to go after emulators. Sony actually did it way before Nintendo ever did all the way back in 1999 against the BLEEM emulator in a ConnectX case. And the emulators technically won the case? Well, Sony lost anyways. This is often the case cited to state that emulation is in fact legal. Of course, this case centered around the use of a PlayStation BIOS and specific firmware, and from a legal standpoint doesn't inherently make emulation legal in all cases, they are just mostly untested at this point. Now PC Gamer did get their hands on the actual legal notice sent to Valve. Here's what Nintendo told Valve's legal department. Because the Dolphin emulator violates Nintendo's intellectual property rights, including but not limited to its rights under the Digital Millennium Copyright Act, DMCA's, anti-circumvention and anti-trafficking provisions, 17 USC 1201, we provide this notice to you of your obligation to remove the offering of the Dolphin emulator from the Steam store. The Dolphin emulator operates by incorporating these cryptographic keys without Nintendo's authorization and encrypting ROMs at or immediately before run time. Thus, use of the Dolphin emulator unlawfully circumvents a technological measure that effectively controls access to work protected under the Copyright Act. Now that sounds like a DMCA, but it's not what you think, they're not actually going after a copyright. They are inferring that those keys are an anti-circumvention matter and are protected under a subset of the DMCA copyright laws. Now this gets actually into something very specific because Nintendo hasn't actually filed a DMCA claim. So Nintendo has actually taken no legal action at this time. Let's actually get into what happened as we found out thanks to the treasurer or soon to be former treasurer of the Dolphin project called Pierre Bourdogne over on Nastadon. He actually dove deep into this. 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 the reporting is to say that this was a DMCA takedown notice or a DMCA notice or DMCA in general. 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 takedown data. This is defined as Section 512c of the Copyright Act and it comes with some requirements from the claimant side of things, which is Nintendo and some liability on the publisher side of things, which is Valve, they own Steam. It also includes rights for the entity accused, which here would be the stitching Dolphin emulator, to counterclaim, 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 actually 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 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 512c takedown, just standard legal removals and a cease and desist between two companies. This has some interesting and sad consequences. Dolphin is not party into any of this. Valve's terms of service likely allows them to take down anything for any reason they want and it does. There is no counterclaim 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. So Valve already thought maybe this could be a problem. Dolphin probably has no recourse here to get any other outcome from Valve, but also no particular risk or liability at all. 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 AES128 common key, which is used to encrypt Wii game disks. This isn't required in theory. The tools at dump game disks could just dump decrypted images. In fact, that might be easier than dumping encrypted images. The decryption is done transparently by the Wii operating system. 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. So now that we have this full context, here's basically what happened. They publicly announced they're bringing Dolphin to Steam. Valve goes, hmm, we're not so sure about that. Let's go ask Nintendo what they think. Nintendo tells them, you know, we think this might be a copyright issue. This might be a problem with the DMCA. Can you please take it down? And Valve goes, sure. That seems to be the gist of it. There's no actual DMCA copyright claim. There's no DMCA takedown. There's actually nothing legally going on. There was basically a conversation between two law firms. Valve initially reaching out to Nintendo's law people, Nintendo responding, and then just agreeing, you know what, let's just take it down. This means that Dolphin doesn't really have anything they can do because Valve took it down willfully and without being forced to. So because Nintendo never actually filed an actual legal DMCA takedown, Dolphin can't do anything. They can try their best to convince Valve to put it back up because Valve has no liability in any of this. But Valve just basically said, sure, bro, and they took it down. So we can get mad at Nintendo, of course, for even asking Valve to take it down. You could also argue you can be mad at Valve for just taking it down in general. They didn't have to. Whether it was a DMCA takedown or whether it was not, Valve is sort of innocent in all of this and wouldn't have to do anything until an actual lawsuit occurred. Then it could actually stay live until the lawsuit comes to a conclusion and then obviously the determination in a courtroom would tell Valve if they had to leave it up or take it down. Valve doesn't really have to do anything. Unfortunately for Dolphin, Valve decided, you know what, Nintendo told us they're not cool with it, we're just going to take it down. And that's pretty much where this is going to end unless Valve magically changes their mind and then it forces Nintendo to have to actually file a legal takedown. There was not a legal takedown presence here. This was just an agreement between two companies to take it down. That's it. No legalese needed at all. Just some potential legalese cited where Nintendo is trying to argue they could take this to the court system, not that they would. So why hasn't Nintendo then just gone after the Dolphin emulator on the whole? Maybe they don't want this to go to court. That's probably the biggest thing because if it goes to court and you find out that, hey, they defend and lose and you are allowed to put decryption keys into this software, they're not going to be included in all emulators going forward. And right now that is a minor stopgap even with switch emulators that you have to go to a different website to get the decryption keys. So right now it just sounds like Nintendo doesn't care about going after them legally. They just said, hey, bro, do us a favor and Valve said, sure. So if you're mad about this, you sort of have a reason to be mad at both companies. Nintendo for raising an issue, but Valve is the one that actually went to Nintendo. There is a chance that if Valve never reached out to Nintendo that none of this happens anyways. Nintendo did not go out of their way to contact Valve and request us to be taken down. It very much appears that Valve initiated the conversation with Nintendo because it rubbed Valve the wrong way. So who should you be mad at? Probably nobody. And here's why I feel like you shouldn't be mad at anybody. This doesn't affect the current availability of Dolphin. Dolphin was never on Steam, so to argue it was taken off of Steam is strange since the Steam version never existed. All that has happened is the Steam version has been halted and it does appear that it probably won't come back because Valve decided in its terms of service with its rights to remove any content that they're just not going to have it on their platform. So take that for what you will. Nintendo isn't trying to destroy the Dolphin emulator. They aren't going after it. They aren't taking them to court. Valve reached out to Nintendo. Nintendo said they're not cool with it. Valve said, okay, cool. We'll take it down. That's pretty much it. That's the story. That's the simplified version. And it sucks. But also, look, I'm all for crapping on Nintendo when they deserve it. This time around, it really wasn't as bad as the headlines made it sound. This was just two companies coming to an agreement and Valve was the one to initiate the conversation. Nintendo might have never said anything if Valve never reached out. Keep that in the back of your minds when deciding to try to crap on Nintendo which is very easy to do over emulation. Thank you guys so much for tuning in and we'll catch you in the next video.