Earlier in the week, game emulator Dolphin was delisted from Steam. At the time, it was brought on by a DMCA takedown from Nintendo, and emails obtained by The Verge show that Valve played a direct hand in that strike against the emulator.
In emails sent to Valve on May 26, a lawyer for Nintendo of America (NoA) thanked the developer for informing NoA of Dolphin’s existence. That same lawyer wrote that Dolphin “unlawfully circumvent[s] a technological measure that effectively controls access” to work protected by copyright.
The emulator would’ve allowed users to play older games that no longer exist on digital storefronts or have physical copies made. Emulation is a thorny issue for game companies, but Nintendo especially has been making a more active effort to curb it in recent months.
As explained by Ars Technica, Dolphin runs on a Wii Common Key, which lets it emulate Nintendo Wii games. And since the Wii could play Nintendo GameCube titles, the key could possibly be used to play games from two Nintendo consoles. As such, NoA would have solid ground to sue both, though Valve would bear the brunt of it.
Section 1201 of the US Copyright Act states that companies legally cannot host technology that “is primarily designed or produced for the purpose of circumventing a technological measure.” Meaning, if Dolphin had been allowed to release on Steam, Valve would’ve been on the hook since it allowed the software to exist on its store.
Valve’s Kaci Aitchison Boyle later confirmed the developer’s involvement in the matter. She told the Verge that it “brought [Dolphin] to their attention proactively…given Nintendo’s history of taking action against some emulators.”
And if that weren’t enough, Valve further told the Verge it “operates Steam as an open platform, but that relies on creators shipping only things they have the legal right to distribute.”
“We don’t want to ship an application we know could be taken down, because that can be disruptive to Steam users. […] Based on the letter we received, Nintendo and the Dolphin team have a clear legal dispute between them, and Valve can’t sit in judgment.”
Even with this additional information, a question worth asking is why (or how) Valve allowed Dolphin to be submitted and approved on its storefront in the first place.