Nintendo is Reviving its Infamously Failed Virtual Boy with a Switch-compatible Accessory

To be honest, I'm not that concerned with the legal side when it comes to Nintendo. They have been shooting down pretty much any game preservation effort or fan made content forever, now try to boot Palworld out of the market by patenting ancient and fundamental game mechanics like summoning a character and letting it fight with others.

I in general object to software being patented, which isn't even legally possible in the EU (patents are only given for implementations, not ideas or algorithms, which is why open source projects like VLC are hosted in the EU), while the US patent office granted tons of overly wide patents on things like "digital money" to patent trolls. I understand the concept and need for patents, with their 20 year duration being way too long for anything involving electronics. And the US extending copyright beyond 70 years after the death of the author just in time to protect Disney's greed was plain disgusting.

I now in general avoid all things Nintendo due to their particular behavior, and have basically zero issues with someone not going out of their way and paying USD 100 for a plastic cardboard case and USD 300 for a Nintendo console only to then be required to subscribe to Nintendo Classic to experience some historic VR games for a console that Nintendo themselves took of the market three decades ago. If you still have the original Virtual Boy and can dump the binaries yourself, congratulations! Otherwise Google, emulation sites, BitTorrent and SideloadVR are your friends. Screw Nintendo.

TL;DR: It's not about money, it's about consumer choice vs. companies trying to exert control way beyond what patents or copyright, that are intended to foster creation, legally allow them to.

What you suggest is what I do, I chose not to use Nintendo products. I don't steal them, I ignore them.

But the issue here isn't price at all, the issue is giving the user choice. I 100% agree with Gabe Newell that piracy is a service problem, and I have a 2.5K+ titles Steam library to proof that the I am more than willing to pay for games, most of which I will never play. Which I am completely fine with, I consider these purchases as supporting developers for their good work, and paying Valve for their community service, because they offer gamers a lot of choice.

On Steam you can buy AAA titles for USD 60 on launch day. Or wait for a few months for them to become slightly reduced. Or a year or two, when they often see permanent price drops. Or wait for sales that a couple of years down the line bring the price down by 75% or more. You can buy ten years old titles if all you have is an ancient laptop with a miserable iGPU that was handed down to you. They'll gladly sell you Half-Life from 1998, regularly discounted by 90%, and occasionally for free, and it still get's regular updates. And the most played Steam games like Dota2 or TF2 are free, with Steam paying for the online service costs.

Steam uses some mild DRM, but this is mostly up to the developers that can also offer games DRM-free. I bought a couple of games on Steam just to copy the game files and use them on the Oculus Go/Quest with Team Beef ports. GOG goes even further, offering games DRM free by default, and they optimize ancient games so they work well with emulators, DOSbox etc. You can do whatever you want with them. This is good service, giving their customers a lot of choice.

Nintendo is the opposite. They could sell ROM images of old console titles, and I would be more than happy to pay them for that. But that's not what you get. You get Nintendo's lawyers going after console emulators and threatening small YouTubers that dare to mention that emulation is an option and showing it, even though running emulated games is legally fine if you own the original and extracted the ROM files.

Nintendo knows this, which is why they don't go after larger channels that could afford to take them to court. A few years ago Nintendo pounded on Steam Deck channels like The Phawx for showing completely legal use of emulators. But when media heavyweight Linus Tech Tips challenged them with a Steam Deck emulation video, clearly stating they would take Nintendo to court, they balked, because they don't even want this to be tested in court. They want to continue to just bully people that cannot afford to fight Nintendo's army of lawyers.

And that is where personally choosing not to buy or use Nintendo titles simply doesn't cut it, and why I say I'm fine with others playing Virtual Boy games on Quest in an emulator with ROMs sourced from illegal sources, simply because Nintendo refuses to sell them. The emulator on Quest will provide a much better experience than a Switch in a plastic case, and if Virtual Boy ROMs were available from Steam or GOG or Nintendo themselves, you could have done that for years. And I would probably have bought all of them, started maybe 10% of them once for a few minutes, similar to what I do with other Steam games, and would have been happy, simply because I was given the choice to pick.

But what Nintendo wants me to do is buy their console, which will also run an emulator, a very expensive plastic peripheral that will provide an inferior experience, and then subscribe to Nintendo Switch Online to even play the Virtual Boy games. Once you cancel that subscription, you USD 99.99 Switch plastic cardboard box becomes useless. And Nintendo has been caught in the past using open source emulators they themselves tried to get banned.

Copyright has it's purpose, as do patents. Patents are a time limited monopoly on something to reward development, but they require offering fair licenses. This is a condition for being granted a patent. You cannot simply lock things away from others, and companies regularly go to court over the conditions. There are a number of legal measures in place to (in theory) avoid patent abuse and stop patent holders from blackmailing others. Similar measures like fair use exist in copyright for similar reasons, but Nintendo really tries to overextend their legal reach pretty much everywhere.

We have seen in other areas like music or movies that content owners use their money to limit choice, so they can effectively force consumers to accept their behavior, even if it is legally very questionable. And even if I personally avoid pirating things (as long as I can find ANY way to legally buy something) and would rather not play Nintendo games than have to accept their behavior, pretty much the only thing that has gotten large companies to improve their services instead of blackmailing their customers has been content piracy that usually goes up once service quality goes down. Even though companies like Valve with Steam or even content owner friendly Apple with iTunes have proven that people are more than willing to pay for content if you only give them the choice to use it how they actually want, instead of making them jump through unnecessary hoops that make the pirated versions more usable than the paid ones.

Preservation doesn't mean that people will or should have access to something

Let's just say that I very much disagree here, as this is exactly the type of technicality that Nintendo uses to twist things like copyright towards the interpretation that is most useful for them.

Game preservation does not mean that Nintendo keeps a copy somewhere in a bunker for future anthropologists. Just like freedom of press does not mean that one person is allowed to publish one article once a year on a blackboard in the middle of the desert. Game preservation means that games that were already published remain accessible to gamers even if the hardware and ecosystems change. Media becomes a part of our life, and it is not acceptable that any 3rd party gets to decide to remove some part of your past (that you already paid for) by blocking ways for you to use it, or intentionally making it hard.

I know that is what they try with license agreements that turn a purchase effectively into a rental, but at least there are now some regulatory movements trying to shift the balance back to more user rights. And I'm pretty sure that if Nintendo ever had the balls to allow this to go to court, they'd learn that copying old games to experience technology from years ago will be considered fair use if they themselves failed to offer a legal alternative for 30 years.

And ROMs are indeed required for a number of things, be it running on proper rebuilds of the original hardware, like the FPGA consoles that we now have, emulating even the smallest hardware quirks, or for running it in better emulators than Nintendo is willing to offer/allow. The need for every Virtual Boy owner to extract the ROM from old cartridges themselves, when owning a legal copy should suffice to use the exact same ROM from another source, is basically just harassment.

I might have given Nintendo a few points regarding game preservation with this re-release of the Virtual Boy, but not if they first require an expensive hardware dongle in form of a plastic cardboard box, and then lock its use behind a software subscription, currently for just three titles. ROMs are required, because Nintendo abuses copyright with technicalities to justify miserable service at high prices, while actively avoiding ever being legally challenged for their abuse, because they know that what they are doing is abuse. Without ROMs, Nintendo might just lock the games away for another 30 years, or do or charge whatever they want again in the future for what you already paid for. And there are game companies showing that you can make money without being an absolute dick.

No, I cannot take Nintendo to court for their claims that using emulators is illegal. What happens is that Nintendo threatens content creators or emulator developers that they will sue them for enabling/promoting illegal behavior, meaning using emulators. But they do this only with people who don't have the financial resources to fight back, and instead take down their content/software just based on the threat.

As mentioned Linus Tech Tips (and some others) basically asked Nintendo to do the same to them, as they could afford to go against Nintendo, and have a court rule whether emulator use is in fact illegal, as Nintendo always claims. And consequently Nintendo never asked Linus Tech Tips to take down their "Switch emulator on Steam Deck" videos, even though they had done this with a large number of smaller channels.

The issue is that it is the claims Nintendo makes when asking content to be taken down that are false. So to have this go to court, Nintendo first has to make those claims when asking some party to remove content, and only that party can then ask the court to throw out Nintendo's claims. So Nintendo can choose whom to (potentially) fight in court, and they only threaten those that will give into their demands without going to court. Hence the "Nintendo doesn't have the balls to allow this to go to court".