Did the other commenters even read the article? The article explains that removing the key wouldn't make a difference, because Nintendo is against emulation and Steam is requiring them to get Nintendo's approval. Even if they remove the key Nintendo won't approve, and Steam can block them from the store even if they haven't broken any laws.
A lot of people here seem to think Nintendo would not claim it illegal without the circumvention code or wouldn't write a letter saying that.
This is totally wrong and shows a complete lack of historical understanding of Nintendo and their legal threats and lawsuits going back decades. Nintendo has repeatedly sued even when they lose. Nintendo has even sued companies for making unlicensed games. Not homebrew, but commercially successful games.
Others seem to believe valve would suddenly be okay with it without circumvention code. This seems naive at best, delusional at worst.
That letter includes a threat to valve on distribution. As above, Nintendo isn't going to say "it's fine now I guess". They would happily sue valve with or without the code. Valve may want to partner with them someday.
Valve may be better than most but it seems very unlikely for them to want to die on this hill. The good will does not seem worth the trouble.
This aspect is totally lost on so many people. Even apple partnered with them for games on their own platform.
It’s fiscally irresponsible for company directors to close that door in preference over a hobby emulator, while pretending that it isn’t intended to infringe on copyright.
> It’s fiscally irresponsible for company directors to close that door in preference over a hobby emulator, while pretending that it isn’t intended to infringe on copyright.
I'm not sure if this applies in Valve's case, as I understand it, Valve is privately owned and held by Gabe Newell and what he says goes, so really the question is does he want to do this or not?
I know it's semantics, But I dont think 'financially irresponsible' is the right semantics to use the context.
Gaben could put a video out tomorrow of him burning piles of Nintendo merchandise and swearing that Steam will never do business with Nintendo and both Gaben and Valve would be fine.
It's hard to conceive of how much money an entity like Valve has and how fast it continues to accumulate.
Steve Jobs was notorious for shit listing companies like AMD or Nvidia and it doesn't seem to have been detrimental to Apple whatsoever.
Give me a single reason why nintendo would even begin to consider partnering with valve.
Nintendo is famous for its closed and closely controlled ecosystem.
Partnering with apple to release a mobile game is a bad (outlier) example as nintendo has no capabilities to release their own phone.
Why would Nintendo invite/open competition with steam deck? Why would they make it easier to pirate their games and give steam cut on the sales via steam store. All the while nintendo has their own console their own store.
Its like apple allowed android store on iOS. Sure they could do it but why would they?
You could have asked this question about Sega in the 90s. Why would Sega ever consider partnering with Nintendo, Microsoft, and Sony?? And then the Dreamcast tanked and they pivoted to software only. Other platforms were there for them to port all their games. If Sega had done something more boneheaded than "Sega does what Nintendon't" then Nintendo could have told them to pound sand and they wouldn't have a successful platform on which to save their business.
Will Nintendo suffer the same fate? Highly unlikely. The Switch is doing great, the successor will probably do great. But then again, so did the Sega Genesis. There's no need to burn bridges.
> Will Nintendo suffer the same fate? Highly unlikely.
In next you suggest not to discount something "Highly unlikely".
That's basically a Pascal Wager territory.
Building closed off ecosystem is Nintendo's whole business, you making business decisions based on idea Nintendo might upend their whole business is... wasteful?
The odds are low, but we're kinda skirting the real question here: What does Valve have to gain by allowing an emulator on the store anyway? It's free so no platform cut, it's open source so it's unlikely to ever be monetizable, and it's legally dubious on top of all that. If this was some billion dollar piece of software like COD I'm sure Valve would fall on the sword like Sony did. But there's literally nothing to gain here except headaches.
Nintendo historically has enormous leverage on multiple Japanese publishers and developers.
Speaking for previous experience in the music industry, It wasn't uncommon for some A&R or label to become "persona non grata" for personal or "political" (rocking the boat too much with some untouchable manager or artist) reasons and getting the boot from most if not all big publishers and distributors.
I wouldn't be surprised if something similar was going on in the gaming industry.
> Nintendo has repeatedly sued even when they lose.
Why don't we have laws to punish companies like Nintendo for this kind of harassment? What if we had one like "if a copyright lawsuit is found to be frivolous or filed in bad faith, the copyright for all of the plaintiff's works involved in the case is forfeit to the defendant"?
SLAPP laws would not help since they are about public participation - like for example, you oppose a permit for someone down the street, and they sue you for doing so.
Or you express an opinion on facebook about a political figure, and they sue you for defamation.
What we are talking about here would not be considered a SLAPP in most states.
>if a copyright lawsuit is found to be frivolous or filed in bad faith, the copyright for all of the plaintiff's works involved in the case is forfeit to the defendant
That sounds like grounds for trolling in the other direction. Can you imagine some new IP taking off but then being grabbed by some asset flipping company that can outspend the creator?
I think there's also an implied point that the key in a substantial codebase is more legally defensible than the key in a codebase that only provides the key.
In essence, the entirety of Dolphin's functionality provides legal cover for the small amount related to the key, under DMCA exception wording.
I’ve come to the conclusion that people have a really really poor understanding of copyright and the DMCA, which probably stems from a history of normalized abuse by recording industry and motion picture associations. I bet most people don't even know that they’re legally allowed to circumvent DRM in order to maintain archival copies of any media they own.
Like people, Nintendo CANNOT restrict your right to obtain and use the Wii common key for any purpose other than you intentionally and solely helping others circumvent copyright law to steal games. It’s Nintendo’s problem, not yours, if they don’t like emulators. It’s refreshing to see such a thorough understanding by Dolphin and their lawyers.
>Like people, Nintendo CANNOT restrict your right to obtain and use the Wii common key for any purpose other than you intentionally and solely helping others circumvent copyright law to steal games.
okay, can you risk that financially? There are cases where emulators have won in court, and then soon after shut down. And that was a pretty profitable venture too compared to modern open source emulation.
We're not going to properly address this until we have proper precedence to the point where it's a slam dunk. And I'm sure Nintendo chooses its battles very carefully.
> I bet most people don't even know that they’re legally allowed to circumvent DRM in order to maintain archival copies of any media they own.
17 USC § 1201 has quite a few parts (subsections (a) through (k)), but I don't think any of them describe the exception you claim exists. Are you referring to one or more of the time-limited narrow exceptions granted by the Librarian of Congress?
DMCA and copyright in general are huge legal doctrines that it takes multiple years of formal education just to begin practicing. You're definitely correct that people have a terrible understanding of it.
I think what you laid out is something visible in a lot of non dolphin emulators. They have disc rippers available but don't come with the device firmware or games pre loaded.
The article says that they *think* it wouldn't make a difference. I have no position on Dolphin being on Steam but it might have been worth it to try without the key once.
but in this case it wouldn't be a legal admission of guild but it would be propagated as such by Nintendo if there ever is a legal case reducing the odds of winning such an hypothetical case
The reason why Dolphin is legal is based on it being mainly a tool for playing old games you own and potentially with mods, accessibility tools and similar.
So for Nintendo to win a case they would need to convince the judge that it's mainly meant for illegal copyright infringement.
Their argument would likely be on the line of the Wii code without the ability to load legal Wii games is useless and having it would be really strange as you could only use it with illegal copies with the copy protection stripped. And stripping it is always illegal to do. So it would be designed for illegal usage. (And rare new games released that way but they would argue it doesn't matter in the grater picture).
I.e. it would be easier for them to win a legal case against Dolphin without it having been an legal admittance of guild.
They need Valve to not block them for Nintendo without legal case based on some excuses (which Valve as store owner is somewhat allowed to do).
And the one thing Nintendo does not want is a legal case, because they know they are most likely going to lose it and then it's likely not just dolphin which would take advantage of the additional legal clarity created by the case.
In the EU I'm not sure there even would be a case because the law being _that_ clear cut in favor of Dolphin.
> And the one thing Nintendo does not want is a legal case, because they know they are most likely going to lose it and then it's likely not just dolphin which would take advantage of the additional legal clarity created by the case.
Bollocks. Nintendo has a reputation for suing the hell out of anyone, often repeatedly, even if they would likely lose. They're rabid about protecting their IP, to the point where they're infamous for it.
Family friendly front-end, but ruthless corporation behind it. They'd absolutely get lawyers and charge in aggressively.
Valve has nothing to gain by putting their money at risk for someone else's emulator; "no dog in this fight".
But in this case if they lose in court they will lose far more then "just" dolphin being on steam.
And with how it's currently they for sure guaranteed won't see dolphin or similar on steam, a sure fire way which might even be cheaper then suing.
Also AFIK in most cases where they sue they either have a good chance of winning or losing will just lose that case and not set a precedence which can cost them dearly.
> But in this case if they lose in court they will lose far more then "just" dolphin being on steam.
The only thing they'd really lose is the money they already spent on lawyers, and they're more than happy to accept that loss. Nintendo will sue in futile situations just to make the other party miserable.
No they set legal precedence that Nintendo device emulators are legally okay (as long as they don't do anything additional etc.). And publicity, too.
If you considers how many people in this chat alone just blindly assumed it's illegal, and that's given a "more tech affine audience of HN, then that is a huge deal.
Go to your local supermarket and start selling things, let's see how long until you get kicked out by security.
If Valve says no, Dolphin doesn't come out on Steam. If Valve says "ask Nintendo", and Nintendo says no, Dolphin doesn't come out on Steam. Dolphin doesn't get a pass to be published everywhere because what they're doing is legal.
but it's Valve which is blocking them not Nintendo
and sure Valve might do so on behest of Nintendo but it's still Valves doing so
the idea that Dolphine (or Valve) have to asks Nintendo for anything is just completly absurd and beyond any legal basis
which is why Nintendo doesn't use the proper legal methods here IMHO, because then you can dispute it and they can (probably will) lose
but as long as Valve plays along there is nothing much Dolphin can do, so again it's Valve who first needs to be convinced before then either Nintendo gives up or you have a proper legal dispute with them
anyway like you correctly pointed out there is no way for Dolphin to affect Valve so the is no way for Dolphi on steam
Legality is not the issue here. Not everything that is legal can be published on Steam. The people who make it a legal argument after this article are missing the point.
All indications are that the dubious legality of ML-generated art is exactly why Valve is not approving those games. Valve isn't taking a moral stance against ML-generated art, they're playing it safe legally by avoiding distributing such games when they cannot ensure the ML models were not trained on unlicensed content and will not spew copyright infringements.
Valve isn't taking a moral stance against emulators, they're playing it safe legally by avoiding distributing such games when they cannot ensure that unlicensed software won't be run on them and will not invite copyright takedowns.
---
Valve doesn't want to carry software that they may be sued over as a distributor.
Until they are on very firm standing that it is ok, they pull the software.
As a distributor of software, Steam has no appetite for distributing any software that may lead it to legal entanglements. Spurious DMCA requests, AI art, or credible threats from Nintendo - that game cannot be distributed.
Valve limited there store to "in general not contain products of a certain type (here AI art containing)".
But in case of Dolphin this isn't the case but a explicit ban of dolphine without it braking Valve TOS.
If Valve would but in their TOS that "emulators are generally not allowed" then rejecting Dolphine would be okay and no one would have wirten any blogs or news articles about it, or even tried to put it on steam.
>They need Valve to not block them for Nintendo without legal case based on some excuses
Or what, they sue Valve? It's still their store. Valve can reject any title for any reason (well, almost any reason. But proving discimination here would be difficult).
I've come across this issue with Valve's vague rulings for dozens of titles, so I'm not exactly surprised the outcome here once again favors Valve. But people are still in blind devotion for Valve instead of realizing that they have been leveraging their pseudo-monopoly on the Pc platform for years now.
They need approval from Nintendo because they include the circumvention code which is illegal under the DMCA. Whether the key is included or not doesn't change anything because the code itself is illegal as it is. But if they removed the circumvention code, Nintendo wouldn't have any right to ask for the emulator not to be published.
No. Valve needs them to get approval from Nintendo because Valve is afraid of Nintendo. They are afraid Nintendo might:
1. Start a lawsuit against Valve rather than Dolphin Team as a SLAPP (Strategic Lawsuit Against Public Participation). Valve could then end up spending millions defending itself from the mad tyrant and the best case is it spent millions to confirm it was doing nothing wrong in the first place.
2. Tell all their 3rd party publishers to stop publishing on Steam, in order to continue doing business with them, utterly ruining Steam.
In both these cases, it has nothing to do with legality or the DMCA, which Dolphin Team's own lawyers have explained if you'd just read the article. It has to do with a big bully getting angry if it doesn't get what it wants, and is willing to throw its weight around.
The interesting question here would be if "Tell all their 3rd party publishers to stop publishing on Steam" would be legally OK or if it would result in a lawsuit against Nintendo because of e.g. anti-competitive behavior.
I see that this could go bad for Valve, but the principled side of me thinks this sets a bad precedent for Value and the gaming community at large to be asking for permission from publishers/developers to green light a tool that helps people play games that are no longer able to be played. (if I am understanding this correctly)
Retro games are in jeopardy of being lost forever because publishers/developers actively work against making it possible to preserve game history.
If that doesn't do harm to the common good, I don't know what does.
Also I doubt they would care about the legality in the slightest. It's not like they would send a press release about it.
It would be an one-time, in-person, strictly private meeting between the respective publishers and executive management. Like the one where they're shown a new console and talk about renewed licensing terms for the platform.
Nintendo literally has a history of this. If you did anything to try and get around their extremely restrictive game selling rules in the 80s to sell more games than you were allowed or games that weren't "licensed" or anything like that, Nintendo would just stop sending you any games.
Nintendo is straight up evil. US courts have told them in direct language that they are wrong and emulation is fine, but they don't give a fuck and the US seems against preventing big money entities from harassing people with lawsuits or fixing the goddamn court system to not cost you a million dollars when you are unambiguously in the right.
That sort of thing can drag on for years. Why would Valve be eager to get into such a fight, even if they feel certain they would eventually prevail? Valve is a business, not a charity or a public utility. (I think a lot of Steam-fanboy gamers are often confused on this point!)
Nintendo would deny ANY and ALL circumvention, no matter how “illegal” it is (which it isn’t, if you’d read the article). Nintendo profits off the deaths of their previous hardware, so of course they will say things are illegal which aren’t. I mean they did abuse the DMCA just a few months back against various legal projects.
It's way more than just profits, look at all the loved games from their past that they continue to not release on digital storefronts or "Nintendo Plus" or whatever they call it now.
Nintendo has an ideological position that essentially the first sale doctrine is wrong and they have privilege over you for things you legally purchased.
no that code is most most likely not illegal at all because there are cases, under DMCA, where code like that is fully legal
this is nothing but a ruse of Nintendo threatening Valve to avoid having to do a proper DMCA request/suing as such an action can be disputed in court, an dispute Nintendo is likely to lose
so it's basically Nintendo pressuring Valve to circumvent proper DMCA enforcement procedures in their favor in a sketchy dishonest way which undermines the law (but might happen to not be illegal)
if Nintendo would think it's illegal they would already have used DMCA to take down Dolphin everywhere, instead of using such roundabout ways
The article says a lawyer firm they hired say it's legal. They dedicate a significant portion of the article to it. So I don't understand how you can just it's illegal.
Nintendo doesn't have any right, in the legal sense. That doesn't mean it's smart for Valve to make an enemy of Nintendo. It's obvious Nintendo uses that pressure. Not legal pressure. The DMCA claim is just pretense.
Various levels of shadow banning is certainly implemented on steam.
This is an edge case which on a worldwide scale is a mess.
For instance in my country, and I guess for most EU (since it was a EU directive), DRMs have a legal protection which is lost upon technical interoperability. This protects on legal grounds the people against digital golden jail/planned obsolescence supplemented with legal locks.
Exactly. Steam can, and honestly must, block them. People don't seem to realize that, of most of the large tech companies out there, Nintendo has figured out that they can easily outspend anyone in legal fees, and no one will care. Just look at their financials. Their lawyers make more than their board. They don't care what is legal or not, they can simply sue anything they don't like into oblivion. They don't have to win the suit to make it disappear.
I hate to bring it up for fears it gets taken down, but how does RetroArch survive on Steam in that case? It doesn't come with them, but you can download cores for Nintendo systems directly from RetroArch.
Valve already knew that Nintendo is against emulation prior to sending the letter to Nintendo. The important datum here is that Nintendo has legal arguments why Dolphin is illegal software and that's presumably why Valve decided to drop Dolphin.
> Nintendo has legal arguments why Dolphin is illegal software
no Nintendo might have enough arguments to make a DACM take down request, but from the POV of many lawyers most likely not enough legal claims to have any chance at winning the dispute in court which would likely follow
this is IMHO why they don't do a claim at all outside of steam
But Nintendo is quite worried about emulation on Steam especially with the Steam Deck. They are obsessed with controlling the games through the hardware and have low end hardware many people would love to replace with something more beefy even if it's not officially supported. So I would be surprised if Nintendo hadn't pressured Valve into an agreement that they would reject and tell them about any Nintendo emulators long before Dolphin tried to go onto steam.
Now due to the lack of DMCA claim and lack of access to steam Dolphin has two choices:
1. give up on it (for now)
2. provoke a legal case in one of multiple ways which would legally clarify if they are covered under law or not (which is expensive and while not very likely there is always the risk to lose it). Through if they are unlucky winning doesn't solve the problem as Valve could just add "no nintendo emulators allowed" to their TOS in which case they would have to sue Valve and Nintendo together for unfair market practices.
... as a non profit project it's pretty clear which option Dolphin can practically take, especially given that you still can put it on a steam deck etc. just with a bit extra steps.
Also maybe Valve just did not want to be the ones to have to fight it in court? Even if they were victorious it takes time from them that they can do other things. Many businesses will settle rather than fight something just because it is more expedient/cheaper not because it is right or wrong.
Absolutely. No dog in this fight. Why risk it? A few months of legal jousting with Nintendo could cost more than any amount of money Dolphin would bring in, and plenty of other Nintendo IPs are sold on Steam. Valve publishes games for Switch, too.
Whole lotta risk for 0 net gain, and possibly steep consequences.
My guess is that in the past they probably had a nice talk where they pointed out they could pressure various publishers to drop Steam if Valve started adding current-gen emulators. Valve sent a letter and published nintendo's response just to make it very obvious they had their hands tied on the matter.
> The important datum here is that Nintendo has legal arguments why Dolphin is illegal software and that's presumably why Valve decided to drop Dolphin.
If Nintendo had sound legal arguments, they would have already won a lawsuit, ergo it is reasonable to assume that they're just being Nintendo (i.e. loudly screaming that emulation is illegal regardless of the actual law).
> Please don't comment on whether someone read an article. "Did you even read the article? It mentions that" can be shortened to "The article mentions that".
