The solid legal theory behind Nintendo’s new emulator takedown effort

Enlarge / This Dolphin is not currently under legal threat from Nintendo. (credit: Flickr / Andreas Ahrens)

When it comes to emulation, Nintendo has a long history of going after the websites that distribute copyrighted game ROMs and some of the modders that make piracy-enabling hardware. But Nintendo’s legal takedown efforts have generally stayed away from emulation software itself.

This weekend saw an exception to that rule, though, as Nintendo’s lawyers formally asked Valve to cut off the planned Steam release of Wii and Gamecube emulator Dolphin. In a letter addressed to the Valve Legal Department (a copy of which was provided to Ars by the Dolphin Team), an attorney representing Nintendo of America requests that Valve take down Dolphin’s “coming soon” Steam store page (which originally went up in March) and “ensure the emulator does not release on the Steam store moving forward.” The letter exerts the company’s “rights under the Digital Millennium Copyright Act (DMCA)’s Anti-Circumvention and Anti-Trafficking provisions,” even though it doesn’t take the form of a formal DMCA takedown request.

In fighting a decision like this, an emulator maker would usually be able to point to some robust legal precedents that protect emulation software as a general concept. But legal experts that spoke to Ars said that Nintendo’s argument here might actually get around those precedents and present some legitimate legal problems for the Dolphin Team.