It doesn't really matter is the problem man. It's an argument and the answer is very expensive. If Nintendo comes a knocking, neither the people who made it nor Microsoft will pay to figure out that answer.
That's how legality works in practice. It's fucking stupid and terrible. Better to know that and spread that information so people can grab it before it's gone. And thankfully there will be forever extra-legal ways to get it now that it's our precisely because people know what I'm saying.
What is the point in trying to argue that nothing will happen? For fun?