Last week, Nintendo successfully blocked the Steam release of the GameCube and Wii emulator Dolphin. Initial reports suggested that this was a DMCA takedown, but it was soon discovered that Valve had contacted Nintendo in advance to take a warning shot, since Dolphin was not yet available for download on Steam.

Valve spokesperson Kaci Aitchison Boyle later admitted to The Verge that this legal letter was sent because Valve contacted Nintendo. Given Nintendo's history of taking action against several emulators, "we proactively brought this to Nintendo's attention after the Dolphin team announced it was coming soon to Steam."

The legal notice in question, reviewed by PC Gamer, is addressed to Valve's legal department and dated May 26, 2023.

"Because the Dolphin emulator infringes on Nintendo's intellectual property rights, including, but not limited to, Nintendo's rights under the Digital Millennium Copyright Act's (DMCA) anti-infringement and anti-trafficking provisions (17 U.S.C. § 1201), the Dolphin emulator offerings from the Steam Store because they infringe Nintendo's intellectual property rights, including, but not limited to, Nintendo's rights under 17 U.S.C. § 1201).

"There is no allegation here that Valve is currently hosting anything that infringes Nintendo's copyrights or, more broadly, violates the DMCA," says attorney Kellen Voyer of Voyer Law, who specializes in intellectual property and technology law. Rather, Nintendo has sent Valve a clear notice that it considers Dolphin to be in violation of the DMCA and that Nintendo will likely take further action if it is released on Steam, given Valve's control over what is available on its store." decision not to intervene in the dispute between the Dolphin developers and Nintendo, and instead followed Nintendo's preemptive request and removed the Steam page."

The specific law Nintendo cites stops companies from hosting copyright-avoidance technology, and more importantly, Nintendo could theoretically go after Valve directly, rather than going after Dolphin's makers. Given that emulators are currently in a legal gray area, this is absolutely critical: Valve cannot host Dolphin on Steam and just say "we are an open platform, talk to them." If Dolphin were offered on Steam, Valve would be liable.

While the actual issue of whether the Dolphin emulator would be deemed illegal by a court is unresolved, Nintendo's stance is surprisingly quite firm:

"Nintendo is committed to protecting the efforts and creativity of video game engineers and developers. This emulator illegally circumvents Nintendo's safeguards and performs illegal copying of games." The use of illegal emulators and illegal copies of games harms development and ultimately stifles innovation. Nintendo respects the intellectual property rights of other companies and expects the same from them."

While Steam is a relatively open platform, it clearly has its limitations, and while Valve has all the money in the world, it makes little sense to fight Nintendo for a large number of people making Nintendo emulators. The issue over the legality of such emulators is an ongoing battle, and Valve, of course, as a distributor of such software, does not want to find itself in the middle of that fight.

Valve issued the following statement to the Verge.

"We operate Steam as an open platform that relies on creators shipping only what they have the legal right to distribute. While third parties may have legal challenges to what is on Steam, Valve is not in a position to adjudicate such disputes. For example, accusations of copyright infringement can be handled through the DMCA process, but other disputes (such as trademark infringement or allegations of breach of contract between developer and publisher) have no legal dispute resolution process, so in these cases we typically suspend distribution of the material until the parties tell Valve they have resolved the dispute. Suspension.

"We don't want to ship applications that we know could be removed because it might confuse Steam users. Due to Nintendo's history of taking action against several emulators, we proactively brought this to Nintendo's attention after the Dolphin team announced their upcoming release to Steam. According to the letter we received, there is a clear legal dispute between Nintendo and the Dolphin team, and Valve cannot issue a ruling."

We wish the Dolphin team the best of luck in resolving their dispute with Nintendo. Nintendo has been and continues to be obsessed with preventing the emulation and distribution of ROMs for their hardware. Nintendo sought to make an example of Gary Bowser, and the court agreed. But Dolphin was only one of Nintendo's problems; its recent blockbuster, "The Legend of Zelda: Tears of the Kingdom," was widely distributed and playable on emulators from the time of its release.