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Nintendo usually goes out of its way to be complient with the laws on the books and I don't see them being in the wrong this time as well. While it would be nice to have a second chance to reconsider my digital purchase I don't feel its fair to say just because a digital item was purchased ahead of time it has to be refundable. Despite not being able to play the game, you still are buying the convenience of not having to wait til launch day to load it into your system. Pre-ordering and loading is a convenience and no one is forcing anyone to buy it ahead of time. If people don't like the extra service cost then really don't use it, if you do then it's nice to have the option.
Remember this is the same place that pushed for the Right to Be Forgotten.