Dolphin Emulator team officially abandons planned Steam release
Almost two months ago, the team behind the Dolphin Emulator announced that they had put their planned Steam release on hold indefinitely following a cease and desist order from Nintendo, but did not cancel their plans outright, instead promising to review their options and come back with a more detailed response in the future. In a new blog post today, the Dolphin team explained what happened in more detail and what this means for the future of Dolphin.
The blog post begins by giving a more detailed account of what happened back in May. Valve's legal department initiated contact with Nintendo to inform them of Dolphin's upcoming release on Steam; in response, Nintendo of America requested Valve block the release, citing the anti-circumvention provisions in the Digital Millennium Copyright Act (DMCA). Valve then told the Dolphin team they needed Nintendo's approval before they would allow the emulator to release on Steam. The Dolphin team believes, given Nintendo's long history of fighting emulation, that this will be impossible and have officially cancelled all plans to release Dolphin on Steam.
Much of the conversation surrounding Dolphin's removal from Steam revolved around the Wii Common Key. This is what the Wii uses to decrypt its games, and has been publicly available online (and in Dolphin's code) for more than 15 years. However, Nintendo cited the use of "proprietary cryptographic keys" in its letter to Valve, claiming that because the "Dolphin emulator operates by incorporating these cryptographic keys without Nintendo’s authorization" it constitutes a violation of the anti-circumvention provisions in the DMCA.
This section of the DMCA states that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title" and also prohibits the trafficking of any technology that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." In this case, Nintendo believes that the encryption on Wii games counts as a technological measure to control access to a copyrighted work, and that Dolphin's primary purpose is to circumvent those measures through decryption.
However, the Dolphin team is confident that this will not affect Dolphin in any way going forward. They argue that Dolphin's primary purpose is to "recreate the GameCube and Wii hardware as software, and to provide the means for a user to interact with this emulated environment" and that only a very small portion of their code relates to circumvention. GameCube games have no encryption on them, and Dolphin is also used to develop game mods or homebrew games.
They also believe they are covered by the reverse-engineering exemptions laid out in the same anti-circumvention provisions. The reverse engineering exemption states that it is okay to circumvent these control measures to enable "interoperability of an independently created computer program with other programs."
"Dolphin is an independently created computer program that is circumventing Wii disc encryption for interoperability with Wii software," reads Dolphin's blog post. "According to this exemption, this does not constitute infringement under 17 U.S.C. § 1201."
As such, the Dolphin team will not remove the Wii Common Key from future releases, and firmly believe Dolphin is not in any legal danger. They will continue to develop and improve Dolphin, and even plan to implement some features intended for the Steam version; namely, a Big Picture GUI mode that is fully usable with a controller.
