If you think I didn't rtfa because I didn't mention that nintendo asked valve not to list dolphin, you are wrong.
If you rtfa, you'll find that the first part of the email nintendo sent valve said that dolphin circumvents encryption, which is illegal under the DMCA. If dolphin were to strip the circumvention code, then nintendo would have no legal reason to ask valve not to list dolphin, and valve could ignore the request.
> valve said that dolphin circumvents encryption, which is illegal under the DMCA
The article explicitly mentions that the DMCA has an exception for interoperability that they believe applies to Dolphin:
> ...a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
>However, we do not think that including the Wii Common Key actually matters - the law could easily be interpreted to say that circumventing a Wii disc's encryption by any means is a violation. As such, it is our interpetation that removing the Wii keys would not change whether the exemption in 17 U.S.C. § 1201(f) applies to us or not. [...] And to all the armchair lawyers out there, the letter to Valve did not make any claims that we were violating a US copyright by including the Wii Common Key, as a short string of entirely random letters and numbers generated by a machine is not copyrightable under current US copyright law. If that ever changes, the world will be far too busy to think about emulation.
Their stance is that Dolphin is not primarily designed for circumvention, but is primarily designed for emulation thus the carve out the DMCA has allowing for circumvention applies:
>> ...a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
>> 17 U.S.C. § 1201(f)(2)
Paragraph 1 requires the person using the software have a legally obtained copy:
> Notwithstanding the provisions of sub-section (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
They're hinging their view on the word "primary" with respect to functions in the code base: "Only an incredibly tiny portion of our code is actually related to circumvention". That is only one way in which the word "primary" might be applied here, with another being the primary thing users actually do with Dolphin. A glance through sites that have such things shows that available content & downloads aren't homebrew, it's ripped game ROM & disc images.
I'm saying I like this part of the DMCA, or the way Nintendo bullies people around on things like this, but the legal area here is much more gray then the Dolphin folks seem to believe.
