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.

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.

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?"
2. Nintendo replied to Valve "we think it's bad and also that it violates the DMCA anti-circumvention provisions" (note: nothing about violating copyright itself). Also "please take it down".
3. Valve legal takes it down and forwards NoA's reply to the Dolphin Foundation contact address.

This is very much *not* a section 502(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).