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Nintendo Issues Multiple DMCAs On The Modding Site 'GameBanana'
(www.nintendolife.com)
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this post was submitted on 13 Jun 2024
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Pirated copies of old ROMs that Nintendo doesn't sell anymore cannot be counted as "lost sales," so that really only applies to their latest releases.
You're right. I wasn't sure if you were talking about new or old games. I'll always encourage owning ROMs as opposed to paying monthly to access them for the few years they'll be available on [current device]. And with such a tiny library, too.
Then there are other factors, like not being able to access certain versions (Nintendo offers only the Shindou version of SM64 because breaking an ancient single player game for fun is verboten).