This blog post is a copy of an article I posted on the /r/emulation subreddit regarding the recent Dolphin / Valve / Nintendo “drama”. You can read it with comments over there.

On /r/emulation 8 days ago /u/b0b_d0e (with a “Citra Developer” flair) mentioned:

That’s right, you know how on all these other emulators like citra, ryu, yuzu, cemu etc they all say “dump your keys by following this guide” ever wonder why you didn’t need that with dolphin?


I never really spent the time trying to reply to this. At the time I was more busy trying to make people understand the difference between a DMCA notice and what happened between Valve and Nintendo. But then this was also picked up by my favorite emulation not-journalist MVG who even doubled down on the keys situation in his apology-update video.

So, I wondered: how do other emulators actually fare? I’ll let you decide on your own:

Almost everyone bundles keys, even Citra (who I’m sure will argue that their 16 random bytes aren’t technically a key, they’re just the seed burnt into the 3DS hardware which is used as the source for most of the crypto keys used on the console).

Is this illegal, as /u/b0b_d0e mentioned? I’m not a lawyer, but I’ve talked to lawyers in the past, and here’s my (personal) analysis.

Are keys copyrightable?

Like many things related to copyright, it’s unclear. The laws are vague and very open to interpretation. One of the preconditions for copyright is generally understood to be that the work needs to be “creative” in nature. This would not apply for all of the keys listed here that are either random numbers, random prime numbers, or just words like “Nintendo”.

Interestingly, Apple did try to make copyright applicable to one of their secret keys by making it a Haiku. Poetry is widely understood to be copyrightable. I don’t think they’ve tried suing anyone for copyright infringement on that haiku yet, however they did try to claim it was a “trade secret”. Courts denied that motion with the interesting consequence that their haiku decryption key is now publicly quoted in a court record document (page 3, line 16).

In 2007 the MPAA tried to remove the AACS decryption key from the internet by sending legal letters to website owners(most famously Digg). Some websites removed the keys, others did not. This is sometimes listed as an instance showing that keys can be copyrighted. But in fact, it only shows that the AACS believes they can strong-arm some website owners to remove material. No court has ruled on the AACS decryption key case. If the MPAA believed to have a strong legal case in their favor, it would have been trivial for their army of lawyers to go defend it in court – and I think it is a notable point that they didn’t.

Are keys copy-protection circumvention measures?

17 USC 1201 (DMCA anti-circumvention) has even fewer legal precedents for its grey areas than copyright does. It makes illegal the acts of “circumvent[ing] a technological measure that effectively controls access to a work protected under [copyright]” as well as “manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king] in any technology, product, service, device, component, or part thereof, that […] is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under [copyright]”.

Note that 17 USC 1201 does not mention encryption keys. It does however mention that the primary purpose needs to be circumvention. So, let’s say someone distributes a tool which turns encrypted Wii disc images into decrypted Wii disc images, and requires as input the Wii Common Key. In my opinion, that tool would still have as primary purpose to circumvent a copy protection measure, and bundling or not bundling the key would be irrelevant. As far as I know, such a situation has never been tested in court, so this would be new legal territory which could go either in Nintendo’s favor or the tool author’s favor – but I suspect it would go in Nintendo’s favor.

Are emulators copy-protection circumvention measures?

Now, the more interesting question is whether an emulator is “primarily designed or produced for the purpose of circumventing a technological measure”. I don’t think that’s obvious. If a court were to rule that they are, emulation for any console that employs DRM is pretty much illegal – keys or not (again: 17 USC 1201 does not mention keys anywhere).

Nintendo, Sony, Microsoft, Sega, etc. have had 15+ years to try and fight that case. So far, they haven’t, so I suspect they also don’t think it’s obvious.


Copyright and the DMCA are vague laws. There are things that are very clearly disallowed: bundling BIOS code with an emulator, for example, since that code would be a creative work. There are things that are very clearly allowed: for example, using a work under the terms of its (explicit) licensing. And there are many many things that aren’t clearly allowed or disallowed. Video game screenshots. Video game videos or streams that aren’t reviews. What qualifies as “fair use”. Whether decryption keys are creative works covered under copyright. Let’s plays. Memes. And, whether emulators are or are not primarily designed to circumvent copy protection.

Being in the grey area does not mean you’re morally right or wrong. It’s just a consequence of the vagueness of laws written in the 90s that have very much not kept up with technology. A third of the relevant law for emulation and circumvention (17 USC 1201) is written to cover what kind of VHS copying is allowed or disallowed. “No person shall apply the automatic gain control copy control technology or colorstripe copy control technology to prevent or limit consumer copying except such copying”. Maybe if they went into that much details on emulation or modern DRM technology that uses encryption, we could have clear answers. But we don’t, and anyone who claims they have those answers are most likely lying to you.