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Dolphin Emulator Dev Comments on Steam Removal Controversy

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Well that blew up, huh? If you follow emulation or just gaming on the whole, you've probably heard about the controversy around the Dolphin Steam release and the Wii Common Key. There's been a lot of conclusions made, and while we've wanted to defend ourselves, we thought it would be prudent to contact lawyers first to make sure that our understanding of the situation was legally sound. That took some time, which was frustrating to ourselves and to our users, but now we are educated and ready to give an informed response.

We'd like to thank Kellen Voyer of Voyer Law for providing us with legal council for this matter. And to be clear, all of the analysis below is specifically regarding US law. Without further delay, let's begin.




What actually happened?
First things first - Nintendo did not send Valve or Dolphin a Digital Millenium Copyright Act (DMCA) section 512(c) notice (commonly known as a DMCA Takedown Notice) against our Steam page. Nintendo has not taken any legal action against Dolphin Emulator or Valve.

What actually happened was that Valve's legal department contacted Nintendo to inquire about the announced release of Dolphin Emulator on Steam. In reply to this, a lawyer representing Nintendo of America requested Valve prevent Dolphin from releasing on the Steam store, citing the DMCA as justification. Valve then forwarded us the statement from Nintendo's lawyers, and told us that we had to come to an agreement with Nintendo in order to release on Steam. Considering the strong legal wording at the start of the document and the citation of DMCA law, we took the letter very seriously. We wanted to take some time and formulate a response, however after being flooded with questions, we wrote a fairly frantic statement on the situation as we understood it at the time, which turned out to only fuel the fires of speculation.

So, after a long stay of silence, we have a difficult announcement to make. We are abandoning our efforts to release Dolphin on Steam. Valve ultimately runs the store and can set any condition they wish for software to appear on it. But given Nintendo's long-held stance on emulation, we find Valve's requirement for us to get approval from Nintendo for a Steam release to be impossible. Unfortunately, that's that. But there are some more serious matters to discuss, some that are much bigger than Dolphin's Steam Release.

What about the key?
Over the past few weeks, a lot has been said about Dolphin including the Wii Common Key. As you may know, Wii games are encrypted, and the Wii uses the "common key" that is burned into the console to decrypt Wii discs. Wii software does not have any access to the key whatsoever, however, some smart engineers and a pair of tweezers was all it took to extract the key. If you haven't heard this story before, we highly recommend checking out the 25c3 presentation on the actual Tweezer Exploit that gave Team Twiizers its original name. It's an incredibly entertaining video that's worth your time. If you aren't familiar with Team Twiizers, perhaps you know them under their modern name: fail0verflow.

The extraction of the Wii Common Key did not elicit any kind of legal response from anyone. It was freely shared everywhere, and eventually made its way into Dolphin's codebase more than 15 years ago (committed by a Team Twiizers member no less).

These keys have been publicly available for years and no one has really cared. US law regarding this has not changed, yet a lot of armchair lawyers have come out talking about how foolish we were to ship the Wii Common Key. Fueling this is Nintendo's letter to Valve, which cites the anti-circumvention provisions of the DMCA (17 U.S.C. § 1201), particularly because Dolphin has to decrypt Wii games.

Nintendo's Letter to Valve stated: "Wii and Nintendo GameCube game files, or ROMs, are encrypted using proprietary cryptographic keys. 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. 17 U.S.C. § 1201(a)(1). Distribution of the emulator, whether by the Dolphin developers or other third-party platforms, constitutes unlawful "traffic[king] in a[] technology... that... is primarily designed or produced for the purpose of circumventing a technological measure...." 17 U.S.C. § 1201(a)(2)(A)."

This sounds extremely bad at a glance (and we certainly had a moment of panic after first reading it), but now that we have done our homework and talked to a lawyer, we are no longer concerned.

We have a very strong argument that Dolphin is not primarily designed or produced for the purpose of circumventing protection. Dolphin is designed to recreate the GameCube and Wii hardware as software, and to provide the means for a user to interact with this emulated environment. Only an incredibly tiny portion of our code is actually related to circumvention. Additionally, GameCube games aren't actually encrypted at all, and Dolphin can also play homebrew and is used in the development of game mods. There are even homebrew and mods that specifically target Dolphin as its own platform, given that it has the ability to emulate more memory and processing power than is possible on the original consoles. That's why there are "Dolphin modes" in many modern homebrew games!

Considering that only a small fraction of what we do involves circumvention, we think that the claim that we are "primarily for circumvention" is a reach. We do not believe this angle would be successful in a US courtroom, if it were ever to come to that. The reason the lawyers representing Nintendo would make such a leap is because they wished to create a narrative where the DMCA's exemptions do not apply to us, as these exemptions are powerful and widely in our favor. Of particular note for Dolphin is the reverse engineering exemption in 17 U.S.C. § 1201 which states that: "...a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or 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."

Dolphin is an independently created computer program that is circumventing Wii disc encryption for interoperability with Wii software. According to this exemption, this does not constitute infringement under 17 U.S.C. § 1201. This exemption even allows distribution of information collected through circumvention, like encryption keys, if it is for software interoperability: "The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section."

17 U.S.C. § 1201 is a significant legal protection for emulation in the US, and it is why Nintendo has yet to legally challenge any emulator with the DMCA anti-circumvention clauses despite the law going into effect 25 years ago. Unless a court rules that our understanding of the law is incorrect, we have every reason to believe that our decryption of Wii game discs is covered by this exemption.

After this situation blew up, we received many requests, and even some demands, to remove all Wii keys from our codebase. We're disappointed that so many people on YouTube and social media didn't even consider that maybe the team had done their research and risk analysis before including the keys, and just assumed that now that it was "pointed out to us" we would remove them. However, we do not think that including the Wii Common Key actually matters - the law could easily be interpreted to say that circumventing a Wii disc's encryption by any means is a violation. As such, it is our interpetation that removing the Wii keys would not change whether the exemption in 17 U.S.C. § 1201(f) applies to us or not.

In fact, we think that offloading decryption tasks onto a potential 3rd party application would make the situation worse for everyone. As such, we believe leaving the keys as they are is the best course of action.

And to all the armchair lawyers out there, the letter to Valve did not make any claims that we were violating a US copyright by including the Wii Common Key, as a short string of entirely random letters and numbers generated by a machine is not copyrightable under current US copyright law. If that ever changes, the world will be far too busy to think about emulation.

What happens now?
We do not believe that Dolphin is in any legal danger. We can look to the end of the message Valve forwarded to us to show this. After all of the scary language, Nintendo made no demands and made only a single request to Valve. Nintendo's letter to Valve stated: "We specifically request that Dolphin's "coming soon" notice be removed and that you ensure the emulator does not release on the Steam store moving forward."

In the end, Valve is the one running the Steam store front, and they have the right to allow or disallow anything they want on said store front for any reason. As for Nintendo, this incident just continues their existing stance towards emulation. We don't think that this incident should change anyone's view of either company.

As a silver lining, some of the features being developed for the Steam release will still work in Dolphin's normal builds, and are still being developed. One of the features we are most excited for is a full "Big Picture" GUI that can be used directly with a controller. That is still going to happen regardless of a Steam release, alongside several smaller features that were meant to be quality of life improvements for Steam builds.

The last thing we'd like to do before signing off is thank the developers who put a lot of effort into the Steam release. OatmealDome in particular was the architect of Dolphin's Steam Integration, working with Dolphin's infrastructure and Steam to take it from theory all the way to a fully-functional version of Dolphin. We'd also like to thank delroth for the immense amount of CI work the past few months, which gave OatmealDome a solid foundation to build from. Finally, MayImilae put in a large amount of media work toward the Steam release despite also working on a major upcoming feature.

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Solaris17

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We took Nintendo cryptographic keys that have been floating around on random peoples github (so it MUST BE FINE) then incorporated it into our emulator and then tried to push it out to a commercial platform and Nintendo got mad.

1689870921730.png
 
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" We don't think that this incident should change anyone's view of either company."

nice politically correct thing to state but personally I think less of Valve as a result, here you have an absolute juggernaut of a company with long standig ties to PC gaming and the whole community around it.
Heck some of the best selling games of all time came from community made mods.... and they not only cowered before bully Nintendo, they basically asked for it before any problem from the bully company.....

yeah makes me believe Valve is a lot more suits now then anything else, the Valve we grew up with, the Valve that earned our respect is long gone, just about maximum profit now.
 
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None of this would be a thing if they would just release games on PC...you know like Sony is doing now.
You like money Nintendo? Because I don't know how more obvious it could be that there are people who want to give you more of it.
 
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None of this would be a thing if they would just release games on PC...you know like Sony is doing now.
You like money Nintendo? Because I don't know how more obvious it could be that there are people who want to give you more of it.

Nintendo: "then buy a switch?"
 
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As usual armchair (or YouTube) lawyers had no idea what they're talking about.
 
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We took Nintendo cryptographic keys that have been floating around on random peoples github (so it MUST BE FINE) then incorporated it into our emulator and then tried to push it out to a commercial platform and Nintendo got mad.

View attachment 305586
Nintendo has done absolutely nothing about dolphin for 15 years now, that wii key hack was in 2008! Yet, its put on steam for free, and NOW nintendo gets a sad?

Smells like total BS to me. If they cared they would have taken dolphin down back when the wii was still a thing!
 

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Nintendo has done absolutely nothing about dolphin for 15 years now, that wii key hack was in 2008! Yet, its put on steam for free, and NOW nintendo gets a sad?

Smells like total BS to me. If they cared they would have taken dolphin down back when the wii was still a thing!

I guess, but the law tried that with TPB and it just kept popping up. Much easier to deny emulation on a game platform then the legal team spending all day sending DMCAs to random wordpress websites.

Good for them though, I know its a blow to Dolphin, and I am certainly the minority, but I side with Nintendo, and imo the team behind Dolphin got presumptuous and well, now they paid the price.

Its not like Nintendo isnt known for this. The emulation community (specifically ones centered around Nintendo products) play with fire everyday.
 
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Nintendo has done absolutely nothing about dolphin for 15 years now, that wii key hack was in 2008! Yet, its put on steam for free, and NOW nintendo gets a sad?

Smells like total BS to me. If they cared they would have taken dolphin down back when the wii was still a thing!
They care now that Dolphin decided to park their ass at the biggest digital video game store front on the market. Dolphin team's refusal to contest Valve's ruling is a clear indicator that they know they'd lose.
 
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I guess, but the law tried that with TPB and it just kept popping up. Much easier to deny emulation on a game platform then the legal team spending all day sending DMCAs to random wordpress websites.

Good for them though, I know its a blow to Dolphin, and I am certainly the minority, but I side with Nintendo, and imo the team behind Dolphin got presumptuous and well, now they paid the price.
The PB shutdowns were far from concluded when the keys became available. TBP was in its prime at the time. Nintendo could have absolutely sent a DMCA at the time, especially as the Wii was CURRENTLY BEING SOLD. Instead, they did nothing, and only submitted one when it was being distributed on steam. That's a Richard relocation, a shady one at that. The Dolphin team has never hidden their existence, its not hard to find them. Distribution was clearly not an issue up until now.
Its not like Nintendo isnt known for this. The emulation community (specifically ones centered around Nintendo products) play with fire everyday.
Hard correction there: Nintendo ISNT known for this. They are known for going after the ROM sites, which is a totally different legal issue then the emulators themselves. It's already been established that building an emulator is not an illegal act.

They care now that Dolphin decided to park their ass at the biggest digital video game store front on the market.
And how is this wrong? Dolphin was not being sold, it was being distributed. For free. No different then their own site.

So what has changed here? What justified a DMCA takedown? Nobody can seem to justify WHY putting it on steam is bad other then "steam popular so bad".
Dolphin team's refusal to contest Valve's ruling is a clear indicator that they know they'd lose.
Or they dont have the money from their FREE project to take down a multi billion dollar corporation in court. But megacorrps abusing DMCA is okay when Nintendo does it.
 

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First things first - Nintendo did not send Valve or Dolphin a Digital Millenium Copyright Act (DMCA) section 512(c) notice (commonly known as a DMCA Takedown Notice) against our Steam page. Nintendo has not taken any legal action against Dolphin Emulator or Valve.
So what has changed here? What justified a DMCA takedown? Nobody can seem to justify WHY putting it on steam is bad other then "steam popular so bad".

Nothing? Dolphin seems to have gotten a threat OF a DMCA and chose not to peruse......because.......they shouldnt?

Not having it on a gaming platform steam or not 100% affects the spread of it. Nintendo knows this. Its cool that we know what Dolphin is, but a lot of gamers especially those not exposed to emulation probably dont. Having it on any Game platform would put it within arms reach instead of the needed googling and research to "find" Dolphin.

Nintendo mitigated a surface, and I guess you could say (but your not being an armchair lawyer right?) they didnt Mitigate anything, they just hinted at the idea that they would care. And Dolphin gave up.

Listen, I am sure everyone here RIGHT? is a perfect law abiding citizen and is crying there eyes out they cant use Dolphin on steam, but I bet you and lets be real I cant be sure.....................that atleast 1 person doesnt use Dolphin with there legally purchased copy of super mario galaxy. I know it, im willing to bet you know it, and I guarantee Nintendo knows it.
 
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Nintendo really needs to f**k off and do one.
 
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We took Nintendo cryptographic keys that have been floating around on random peoples github (so it MUST BE FINE) then incorporated it into our emulator and then tried to push it out to a commercial platform and Nintendo got mad.

View attachment 305586
I mean, are keys copyrightable works, being essentially just numbers? That's what it comes down to IMO.
 
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We took Nintendo cryptographic keys that have been floating around on random peoples github (so it MUST BE FINE) then incorporated it into our emulator and then tried to push it out to a commercial platform and Nintendo got mad.

View attachment 305586
This is exactly the correct take. I really don't understand what the Dolphin devs thought they'd achieve by essentially flaunting their emulator in Nintendo's face... given how anal that company is about its intellectual property, any outcome other than the devs legally getting their s**t pushed in should be considered a success.

Nintendo ISNT known for this. They are known for going after the ROM sites, which is a totally different legal issue then the emulators themselves.
Nintendo is known for aggressively protecting their intellectual property. The master key for their consoles is indisputably their intellectual property.

It's already been established that building an emulator is not an illegal act.
Nobody claimed that it is.

What justified a DMCA takedown?
There wasn't one.

I mean, are keys copyrightable works, being essentially just numbers? That's what it comes down to IMO.
Copyright of the key itself isn't the issue here; it's that the key allows Nintendo's copyright protection of its games to be circumvented.
 

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I mean, are keys copyrightable works, being essentially just numbers? That's what it comes down to IMO.

Don't know the case law, Nintendo was nice enough not to take them to court.
 
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Nothing? Dolphin seems to have gotten a threat OF a DMCA and chose not to peruse......because.......they shouldnt?

Not having it on a gaming platform steam or not 100% affects the spread of it. Nintendo knows this. Its cool that we know what Dolphin is, but a lot of gamers especially those not exposed to emulation probably dont. Having it on any Game platform would put it within arms reach instead of the needed googling and research to "find" Dolphin.

Nintendo mitigated a surface, and I guess you could say (but your not being an armchair lawyer right?) they didnt Mitigate anything, they just hinted at the idea that they would care. And Dolphin gave up.

Listen, I am sure everyone here RIGHT? is a perfect law abiding citizen and is crying there eyes out they cant use Dolphin on steam, but I bet you and lets be real I cant be sure.....................that atleast 1 person doesnt use Dolphin with there legally purchased copy of super mario galaxy. I know it, im willing to bet you know it, and I guarantee Nintendo knows it.
Ignoring the whataboutism about people never breaking the rules, if Nintendo honestly believes that the emulator is a breach of copyright they should be pursuing it, not using it as a cudgel to manipulate/threaten people. If it were anyone else, this would be called DMCA abuse.
I mean, are keys copyrightable works, being essentially just numbers? That's what it comes down to IMO.
IIRC sony never went after the people who leaked/racked the BluRay keys a few years back. In fact I dont think anyone has gone after anybody who has gotten the keys out of a legit console. The only time they have is when someone hacked into their servers, which runs afoul of federal law.
Nintendo is known for aggressively protecting their intellectual property. The master key for their consoles is indisputably their intellectual property.
So aggressive they let this emulator sit, for 15 years, while the console it was emulating was being sold, and did nothing about it?

something doesnt add up there.
 
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Copyright of the key itself isn't the issue here; it's that the key allows Nintendo's copyright protection of its games to be circumvented.
They do seem to have a good "primary use" argument.
 
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Folks, you really should finish reading the article before commenting. If the Dolphin blog post says, "Our legal advisor says we are not in violation of DMCA due to points A, B, and C", then please do better than a comment saying "nuh-uh."
 
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So aggressive they let this emulator sit, for 15 years, while the console it was emulating was being sold, and did nothing about it?

something doesnt add up there.
Cost/benefit analysis. As long as Dolphin keeps out of the mainstream, Nintendo is willing to leave them alone because the cost of litigation outweighs the potential loss of people pirating ROMs. Any change to that status quo would likely cause Nintendo to redo that analysis, and Dolphin will almost certainly not enjoy the result.

Folks, you really should finish reading the article before commenting. If the Dolphin blog post says, "Our legal advisor says we are not in violation of DMCA due to points A, B, and C", then please do better than a comment saying "nuh-uh."
Nobody has made the argument you claim they have, so I guess the only one who needs to do better is you.
 
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Nobody has made the argument you claim they have, so I guess the only one who needs to do better is you.
A lot here aren't much better frankly.
 
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We took Nintendo cryptographic keys that have been floating around on random peoples github (so it MUST BE FINE) then incorporated it into our emulator and then tried to push it out to a commercial platform and Nintendo got mad.

View attachment 305586

Ironically, your post is likely in violation of the copyright act (and if not, then almost certainly of trademark law) in violation of Nintendo, given that Pikachu is a trademarked figure and that particular image is from a particular episode of Pokemon.

I think we all know that law is selectively applied with regards to online: memes, like "surprised Pikachu" obviously violate trademark and copyright laws but everyone turns a blind eye to it. With regards to piracy, Dolphin is more of an original work (programmers had to recreate the machine and likely didn't copy much from Nintendo hardware).

The thing about "cryptographic keys" is that they're not... really keys... if everyone needs them to run the game. I think that's a gray area of the law. With regards to fair use, API openness and the like, we know that software that emulates other software is fully legal (see ROCm, an obvious copy of NVidia's copyrighted CUDA. But as long as AMD didn't use any NVidia code, its perfectly legal to copy the behavior of other people's code).

That's where the line is drawn. Copyright prevents people from copying code. "Copying behavior" is a patent-level protection, but all patents regarding Gamecube would have expired by now (20-year maximum lifespan of patents, Gamecube released in 2001). So I dunno. I very well think that Dolphin, emulating an over 20-year-old platform, probably has the full rights to do so. Its certainly not protected by patents anymore, and copyright cannot protect against emulators.

Not that I'm a legal scholar or anything. But copyright abuse is an issue I do care about and I think is one of the ills of modern society. I'm not a full on pirate, I recognize the importance of limited monopolies on artists works (and programming works). But I also recognize the legal importance of Java's behavior being replicated by Microsoft, Java-copyright issues with regards to the API, and ROCm copying CUDA, etc. etc. These legal precedents set in the past 20 years (SCO trial vs Linux) do relate to this dolphin emulator case, despite the obvious piracy slant. I don't necessarily want pirates to get what they want, but its still important for copyright protections to be limited to... well... copyright. We can't just be strengthening copyright willy-nilly just because some cryptographic key was placed in easily reverse-engineered code 20+ years ago.

------------------

I'm not so much thinking about Dolphin emulator. There's obvious piracy issues here.

Again: focus on SCO vs Linux. Google LLC v. Oracle America, Inc. These major copyright / programming legal issues were brought up and a line was drawn, somewhat arbitrarily but also with reason. Reasons that make sense right now and today. Given these case-laws on where copyright protections are drawn, I'm not sure if the Dolphin emulation group is on the wrong side here.

EDIT: Google vs Oracle is the biggest case and still fresh on my mind. Is Google allowed to build its own Java-emulator (aka: Android / Dalvik) to run Java code, even though Java is copyrighted by Oracle / Sun? Well, duh. Copyright doesn't protect against copying behavior, as long as Google rebuilt the Dalvik virtual machine from scratch (meaning it will have its own inconsistencies and quirks against the official, original Java virtual machine), then they're in the clear. Because copyrights can't and shouldn't protect against behaviors.

Same-same with Dolphin. Dolphin is just a copy of Gamecube's behavior and is obviously written in a way that doesn't access Nintendo's source code (Dolphin is open source right? And its development is documented on Github). Its literally the same case as Google vs Oracle, albeit with a physical Gamecube machine rather than the Java virtual machine. But otherwise its the same thing.
 
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Cost/benefit analysis. As long as Dolphin keeps out of the mainstream, Nintendo is willing to leave them alone because the cost of litigation outweighs the potential loss of people pirating ROMs. Any change to that status quo would likely cause Nintendo to redo that analysis, and Dolphin will almost certainly not enjoy the result.


Nobody has made the argument you claim they have, so I guess the only one who needs to do better is you.
Looks like someone got offended. Can’t take a company seriously when they are KNOWN to ignore and hate their consumer base and you want to side with? Same company that does not allow consumers to preserve their video game collection and the only way is to play it on the original console which is either too expensive to buy it or little to no one is trying to fix these consoles. Same company that allows artificial price increase of their products for their “good little boys and girls”that never grew up and see the REAL Nintendo. Same company that really tried to screw over Sony and it blew up in their face? Sorry, I don’t side with companies that hates their customers and want them to keep fighting a losing battle until they get the message.
 
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Looks like someone got offended. Can’t take a company seriously when they are KNOWN to ignore and hate their consumer base and you want to side with? Same company that does not allow consumers to preserve their video game collection and the only way is to play it on the original console which is either too expensive to buy it or little to no one is trying to fix these consoles. Same company that allows artificial price increase of their products for their “good little boys and girls”that never grew up and see the REAL Nintendo. Same company that really tried to screw over Sony and it blew up in their face? Sorry, I don’t side with companies that hates their customers and want them to keep fighting a losing battle until they get the message.
Offended by what? You really need to project less.
 
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None of this would be a thing if they would just release games on PC...you know like Sony is doing now.
You like money Nintendo? Because I don't know how more obvious it could be that there are people who want to give you more of it.
The Nintendo would go under and there would be no more Nintendo games.
 
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All I ask is the legal distribution of ROMs through Steam. Nintendo could launch Virtual Console on PC/Steam Deck and they'd be making millions overnight, yet they don't do that.

It's not even a competitive threat, Switch buyers aren't gonna stop buying Switch consoles because of this. I'll never buy a Switch regardless but sign me up for their VC catalog on Steam, I'll buy just as I bought the Sega collections.
 
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