Ramona is not human

DMCA Takedown

I'll get to the second title first:

To sum it up, this is the part where you can do a copyright infringement claim, a "notice and takedown" process. This process also includes the ability of a counterclaim.

NONE OF THIS HAPPENED ON DOLPHIN ON STEAM. Nintendo did not use this process. They just told Valve a reason, and it was Valve's decision alone that got the emulator removed, and they notified Dolphin of the reason.

I won't really debate much on this, it's not really interesting.

"Anti-circumvention"

Now, the anti-circumvention part, the meaty part. There's a lot of legal text, but I will translate to the best of my abilities to you, don't worry.

This is the part where I feel the least comfortable about, and again, this is an interpretation, but let's start again from that quote that I had (from PC Gamer, by the way):

the Dolphin emulator operates by incorporating these cryptographic keys without Nintendo’s authorization and decrypting the ROMs at or immediately before runtime. Thus, use of the Dolphin emulator unlawfully 'circumvent[s] a technological measure that effectively controls access to a work protected under' the Copyright Act.

The thing is... I only said that indeed, the Wii Common Key, required to decrypt everything, is included in Dolphin's source code. It's... not necessarily the problematic point of this, as I tried to read more into it, and I will go back to the Lockpick_RCM actual DMCA takedown.

Lockpick_RCM is a Switch tool that gets a set of keys from your Switch console and puts them into an easy to read file that could be used in conjunction with other Switch tools. They're required to decrypt pretty much everything about the Switch, from games to other packages.

The use of Lockpick with a modified Nintendo Switch console allows users to bypass Nintendo’s Technological Measures for video games

A thing you read a lot is "Technological Measures"... turns out this has a bit of a definition in 17 U.S.C. §1201... or rather, in that text itself, here's the very first thing you can read:

17 U.S.C. §1201 (a)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The wording "circumvent a technological measure" happens to have a definition tied to it:

17 U.S.C. §1201 (a)(3) As used in this subsection— (A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

It's a somewhat precise definition, actually, and purely relying on it... this makes pretty much everything Wii, 3DS, Wii U and Switch a very dangerous situation.

The "technological measure" also has a definition:

17 U.S.C. §1201 (a)(3)(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

Basically it just means a DRM (Digital Rights Management) process of sorts.

A lot of people loves to talk about the previous lawsuits on emulators, but note that I never mentioned the emulation being the issue here. Nintendo is NOT arguing, on a legal level anyway, that emulators are illegal by being one, their communication team does by stifling innovation in their public arguments.

According to 17 U.S.C. §1201 (a)(3)(A), just having encryption is enough to consider that they're protected, and just decrypting is already illegal... this affects a lot more than you think, it's not just Dolphin at this point, it seems we misunderstood a lot of things about the DMCA.

To sum it up more bluntly: I don't feel like the encryption key is the main argument, it's actually about what you do with it that they argue against.

So even if Dolphin removed the Wii Common Key, if they still include the decryption process, even if you provided the key yourself from your own system, EVEN your own Wii dumps, the argument here implies that since you're still decrypting the Wii dump data, this last part is argued to be illegal. This ain't right.

Now apply this to everything else, even if you decrypted the game beforehand so that Dolphin doesn't even decrypt anything, the problem would be moved to the dumper or the decrypter tool doing it. This applies to a lot of systems.

Considering the definition I showed earlier, this seems hard to argue against, however, notice that I never said anything as fact, and insisted that it is Nintendo's argument, legally speaking, I believe this is an important distinction to make.

Exceptions?

The law also explicitly defines exceptions to this, but please read carefully, because this is where I start to really interpret from here:

In 17 U.S.C. §1201 (a)(1)(B), my understanding is that when the protection itself prevents legitimate use, then you are allowed to break it. That said, and this is important: The later subparagraphs defines these paragraphs as something that CANNOT BE USED AS A DEFENSE. This is only there to shield the Library of Congress from any attack, and to allow them to research the various impacts that the protection does and determine rules. Their ruling is also explicitly not allowed to be used as a defense in the text.

After reading a lot of this, I only found one thing that, very honestly, I find quite unclear. Subsection (f) about Reverse Engineering, is particularly showing how much they're not well versed in computer science.

17 U.S.C. §1201 (f) basically says if you're trying to understand how the program works, you are allowed to circumvent the protection, under the idea that you're doing analysis, or...

17 U.S.C. §1201 (f)(2) 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.

In the case of infringement, I believe this is about copyright in general, as the law suggests this does not affect copyright laws in any way.

So what is interoperability... well let's take the definition from there:

17 U.S.C. §1201 (f)(4) For purposes of this subsection, the term “interoperability” means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

So we're talking about the ability for a program to exchange information with the work, in this case, a game for example.

...what is this? Programs exchange information all the time. That's even the basis of a computer. Maybe there are other definitions, but frankly I can't be bothered to read even more legalese right now.

With just this, and not taking into account anything else, I feel like this allows emulators to work, they don't really modify the game, they try to run it within a sandbox, where a lot of information is exchanged to make sure the program runs as intended.

Oddly enough this would still make the ability to run those games on a modded Switch still illegal though, while emulators could be allowed to do this.

But make no mistake: This is not a legally tested argument. I need to repeat: This is an interpretation. Lawsuits literally work with lawyers interpreting information and the laws, and argue. The whole idea of laws being unclear is not necessarily a fault, it's specifically why lawyers exist.

Why now? And what now?

Honestly, as much as Nintendo argued, for the time being, they have not shown any intention to take down Dolphin as a whole. They could just argue as a scare tactic to prevent Dolphin to reach an even more mainstream status. I doubt Nintendo didn't know about Dolphin for that long.

Until I see an actual DMCA takedown, or worse against Dolphin itself, I'm going to assume Dolphin will stay up for a long time.

Removing the Wii Common Key from Dolphin will not change the situation, as it is the whole decryption process that the argument is about.

Whether Citra, Cemu, Yuzu and Ryujinx could have included the keys or not, the argument would still be the same here.

TL;DR of the complicated part

About the takedown itself:

Valve asked Nintendo about Dolphin on Steam, and they argued that Dolphin is illegal because it decrypts Wii games, and Valve, on their own accord, took down Dolphin from Steam from this. (Note: GameCube does not use encryption and cannot be impacted by this.)

An actual lawyer also takes this as a warning from Nintendo to Valve according to PC Gamer.

About the argument that Nintendo used against Dolphin:

Encryption Keys are NOT the main point of contention, because...

The encryption itself, as a whole, is argued by Nintendo to be a protection measure.

This means that decrypting the game outside of the intended way by the copyright owner (Nintendo, on a Nintendo Switch) is argued to be illegal by default.

The law, as in how I interpret it, goes in that sense, but for some reason you are allowed to make an additional program that can "interoperate" with the protected works in question and explicitly is allowed to break the protection. This is a vague part, and could be used in defense of Dolphin, potentially.