8 ms·

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

by lantry 3y ago

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.

ethbr0 3y ago
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. Kudos to the Dolphin team.
- henriquez 3y ago
  Other emulators don’t include keys but let you enter them in. I get Dolphin’s justification for leaving it in though.
crop_rotation 3y ago
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.
- rowanG077 3y ago
  They need approval from Nintendo. It's as easy to ask: "Does Nintendo approve that Dolphin with the builtin Wii encryption key is released on Steam".
  - veave 3y ago
    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 But if they removed the circumvention code, Nintendo wouldn't have any right to ask for the emulator not to be published.
    - seba_dos1 3y ago
      > Nintendo wouldn't have any right to ask for the emulator not to be published ...which is completely unrelated, since it was Valve who asked Nintendo even though they didn't really have to.
    - tourmalinetaco 3y ago
      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. https://gbatemp.net/threads/nintendo-reportedly-issues-dmca-takedown-for-switch-homebrew-projects-skyline-switch-emulator-development-ceased.632406/ https://gbatemp.net/threads/nintendo-reportedly-issues-dmca-...
      - mrguyorama 3y ago
        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.
    - realusername 3y ago
      > Nintendo wouldn't have any right to ask for the emulator not to be published. They already don't and yet that's what they are doing. There's a difference between legal and private pressure.
    - rowanG077 3y ago
      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.
  - dathinab 3y ago
    no they don't need approval from Nintendo 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.
    - rowanG077 3y ago
      Are you serious here? You think the Dolphin team can meaningfully affect Valve here? That's delusional.
      - dathinab 3y ago
        no they can't, and I didn't say so 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
        rowanG077 3y ago
        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.
        shagie 3y ago
        (furthering this point) consider the recent Developer claims Steam is rejecting games with AI-generated artwork -- https://news.ycombinator.com/item?id=36522665 https://news.ycombinator.com/item?id=36522665 / https://news.ycombinator.com/item?id=36520701 https://news.ycombinator.com/item?id=36520701 AI art isn't illegal, but Steam still has taken a position of not wanting to be the middleman for distribution of such content.
- dathinab 3y ago
  > think after careful considerations and consulting lawyers, and doing that more then one time > been worth it to try without the key once. No it would make the situation worse for them, they can publish it _without any WII support at all_. But not just without the key. Trying it without the key would be like saying "we do know it's illegal" instead of "it's clearly covered by DMCA exceptions and related law". Removing the key without removing the whole WII functionality *is the one think they must no do no matter what*.
  - voxl 3y ago
    In what world is placating a business partner an admission of guilt?
    - dathinab 3y ago
      in our in many many ways 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.
erfgh 3y ago
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.
- dathinab 3y ago
  > 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.
- easyThrowaway 3y ago
  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.
  - LocalH 3y ago
DannyBee 3y ago
Agreed. 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.
- josephcsible 3y ago
  > 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"?
  - flutas 3y ago
    We do. They're called Anti-SLAPP laws[0], but iirc they really only let you stop the current lawsuit. [0]: https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation https://en.wikipedia.org/wiki/Strategic_lawsuit_against_publ...
    - DannyBee 3y ago
      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.
bowsamic 3y ago
Please follow the rules > 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". https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
sylware 3y ago
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. Well, this is what I understood.
faeranne 3y ago
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.
- volkl48 3y ago
  Valve/Steam is more than large enough to fund any legal fights it wants to have forever. Understandably, I don't think Valve has any interest in fighting this battle for Dolphin, but they certainly have the money to do it.
- c-hendricks 3y ago
  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.
- rasz 3y ago
  >Nintendo has figured out that they can easily outspend anyone in legal fees so does Sony, didnt help them one bit https://en.wikipedia.org/wiki/Sony_Computer_Entertainment,_Inc._v._Connectix_Corp https://en.wikipedia.org/wiki/Sony_Computer_Entertainment,_I....
dcow 3y ago
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.
- 6D794163636F756 3y ago
  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.
- wtallis 3y ago
  > 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?
- johnnyanmac 3y ago
  >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.

by lantry 3y ago

ethbr0 3y ago

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. Kudos to the Dolphin team.

henriquez 3y ago
Other emulators don’t include keys but let you enter them in. I get Dolphin’s justification for leaving it in though.

crop_rotation 3y ago

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.

rowanG077 3y ago
They need approval from Nintendo. It's as easy to ask: "Does Nintendo approve that Dolphin with the builtin Wii encryption key is released on Steam".
- veave 3y ago
  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.
  - seba_dos1 3y ago
    > Nintendo wouldn't have any right to ask for the emulator not to be published ...which is completely unrelated, since it was Valve who asked Nintendo even though they didn't really have to.
  - tourmalinetaco 3y ago
    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. https://gbatemp.net/threads/nintendo-reportedly-issues-dmca-takedown-for-switch-homebrew-projects-skyline-switch-emulator-development-ceased.632406/ https://gbatemp.net/threads/nintendo-reportedly-issues-dmca-...
    - mrguyorama 3y ago
      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.
  - realusername 3y ago
    > Nintendo wouldn't have any right to ask for the emulator not to be published. They already don't and yet that's what they are doing. There's a difference between legal and private pressure.
  - rowanG077 3y ago
    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.
- dathinab 3y ago
  no they don't need approval from Nintendo 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.
  - rowanG077 3y ago
    Are you serious here? You think the Dolphin team can meaningfully affect Valve here? That's delusional.
    - dathinab 3y ago
      no they can't, and I didn't say so 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
      - rowanG077 3y ago
        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.
        shagie 3y ago
        (furthering this point) consider the recent Developer claims Steam is rejecting games with AI-generated artwork -- https://news.ycombinator.com/item?id=36522665 https://news.ycombinator.com/item?id=36522665 / https://news.ycombinator.com/item?id=36520701 https://news.ycombinator.com/item?id=36520701 AI art isn't illegal, but Steam still has taken a position of not wanting to be the middleman for distribution of such content.
dathinab 3y ago
> think after careful considerations and consulting lawyers, and doing that more then one time > been worth it to try without the key once. No it would make the situation worse for them, they can publish it _without any WII support at all_. But not just without the key. Trying it without the key would be like saying "we do know it's illegal" instead of "it's clearly covered by DMCA exceptions and related law". Removing the key without removing the whole WII functionality *is the one think they must no do no matter what*.
- voxl 3y ago
  In what world is placating a business partner an admission of guilt?
  - dathinab 3y ago
    in our in many many ways 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.

erfgh 3y ago

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.

dathinab 3y ago
> 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.
easyThrowaway 3y ago
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.
- LocalH 3y ago

DannyBee 3y ago

Agreed. 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.

josephcsible 3y ago
> 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"?
- flutas 3y ago
  We do. They're called Anti-SLAPP laws[0], but iirc they really only let you stop the current lawsuit. [0]: https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation https://en.wikipedia.org/wiki/Strategic_lawsuit_against_publ...
  - DannyBee 3y ago
    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.

bowsamic 3y ago

Please follow the rules > 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". https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html

sylware 3y ago

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. Well, this is what I understood.

faeranne 3y ago

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.

volkl48 3y ago
Valve/Steam is more than large enough to fund any legal fights it wants to have forever. Understandably, I don't think Valve has any interest in fighting this battle for Dolphin, but they certainly have the money to do it.
c-hendricks 3y ago
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.
rasz 3y ago
>Nintendo has figured out that they can easily outspend anyone in legal fees so does Sony, didnt help them one bit https://en.wikipedia.org/wiki/Sony_Computer_Entertainment,_Inc._v._Connectix_Corp https://en.wikipedia.org/wiki/Sony_Computer_Entertainment,_I....

dcow 3y ago

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.

6D794163636F756 3y ago
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.
wtallis 3y ago
> 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?
johnnyanmac 3y ago
>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.