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 But if they removed the circumvention code, Nintendo wouldn't have any right to ask for the emulator not to be published.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.
