Posted by "Article

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Nintendo has taken a page from Sony's playbook, even as the video game giant struggles to recover from the impact of its decision to remove Other OS support. The Free Software Foundation recently examined* the EULA and privacy policy Nintendo attaches to the 3DS; both are far more draconian than corresponding agreements for the DSi, DSi XL, DS Lite, or original DS.

Let's start with the privacy policy. The two documents are organized differently; a careful comparison indicates that the DSi policy matches the 3DS policy on nine of the latter's ten points. The missing point (ix in the 3DS agreement) is the importance differentiator. It states that Nintendo may collect Personally Identifiable Information (PII) in order to: 'prevent potentially illegal or offensive activities or to enforce our rights or the rights of our users.'(emphasis added)

Nintendo's Rights

The DSi's EULA states that customers (aka "You"):

may not use the Nintendo DSi Service for commercial or illegal purposes, in a way that may harm another person or company, or in any unauthorized or improper manner as we may specify from time to time in this agreement, our Nintendo DSi Code of Conduct, or otherwise.

The 3DS keeps this paragraph, but includes the following jaw-dropper:

By accepting this Agreement or using a Nintendo 3DS System or the Nintendo 3DS Service, you also grant to Nintendo a worldwide, royalty-free, irrevocable, perpetual, non-exclusive and fully sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display your User Content in whole or in part and to incorporate your User Content in other works, in any form, media or technology now known or later developed, including for promotional or marketing purposes.

Imagine Microsoft or Adobe, neither of which is a champion of free/open source software, attempting to claim they owned all of the materials anyone created or edited using their software, or Bic asserting it had legal write (pun intended) to any missive composed using one of its various pens. That's what Nintendo is doing here, in a genuinely jaw-dropping example of hubris.

The company has also tightened its control over bricking the system, though the language is more subtle. The DSi EULA states: "We may take steps to disable any unauthorized software, services or device installed in your Nintendo DSi...by detecting and disabling them through the Nintendo DSi Service and/or game software. If we detect unauthorized software, services, or devices, your access to the Nintendo DSi Service may be disabled and/or the Nintendo DSi System or games may be unplayable."

Compare that to the 3DS EULA:

After the Nintendo 3DS menu is updated, any existing or future unauthorized technical modification of the hardware or software of your Nintendo 3DS System, or the use of an unauthorized device in connection with your system, will render the system permanently unplayable. Content deriving from the unauthorized modification of the hardware or software of your Nintendo 3DS system will be removed. Failure to accept the update may render games and new features unplayable.

Nintendo's massive power grab may be an attempt to end-run around the Supreme Court decision last summer that deemed jailbreaking fair use. By asserting that it completely owns everything related to or created with the 3DS, it may be trying to argue that there's no such thing as "fair use," because the user literally owns nothing. No matter what the company's motive, the new EULA needs to be challenged in a court of law. EULA's are not automatically legal; attempting to seize absolute control of users' rights is a bridge too far.

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Posted by MasterPhW

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Wii Homebrew is/was so great, because it showed, what the Wii was missing from the beginning.
Multimedia features, HDD support, (translation) patches, region free gaming etc.
The 3DS already shows that Nintendo learned a lesson and to be honest, most Wii/DS Homebrew user used it for pirating games and that's the reason Nintendo wants to state in their EULA, that they have the possibility to disable all non Nintendo software.
The N64 was the last Nintendo console without any kind of Homebrew and just compare its game portfolio with the Wii game portfolio.

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Posted by ARTICLE

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The Terms of Service (TOS) agreement that you agree to when you turn on a Nintendo 3DS isn’t something most people flip through. After all, you’ve already paid for the thing, and you want to play. The anti-DRM group Defective by Design has read it though, and are concerned enough about what it contains that they think you should be too. The group gained fame after campaigning against Apple to remove DRM from iTunes Music Store downloads, which Apple later did on its own.

The group is raising money to send Nintendo President and COO Reggie Fils-Aime a bundle of cardboard bricks to protest Nintendo’s ability to remotely update, change, or even brick your 3DS if they choose to. The statement is buried in the TOS, but Nintendo does reserve the right to remotely manage your 3DS or in the words of the TOS, “render the system permanently unplayable” if they feel they have a reason to, specifically if they think you’re pirating games.

Additionally, the TOS gives Nintendo the right to track the games you play and any personal information you enter into the console, including your name, age, gender, and the area in which you live. By accepting the TOS, you also give Nintendo exclusive and royalty-free rights to the content you create or data you put on your 3DS. The 3DS is also region-locked, meaning gamers in North America won’t be able to play Japanese or EU-released games on their 3DS without also importing a handheld from that region as well as the game.

The group also takes issue with the statement in the TOS that the 3DS can and will connect to the Internet and directly to Nintendo’s servers to upload log files or to update is DRM software. All of that uploaded data is then used to target advertisements to you – the TOS allows Nintendo to sell or share your personally identifiable information to third parties in order to provide targeted advertising to you.

Defective by Design thinks the rights that Nintendo has granted itself in the 3DS’ terms go too far, and are accepting donations for the “Brick Nintendo” campaign. They’re also inviting concerned 3DS owners and Nintendo fans to write a letter to the company to complain, or to order the bricks themselves, assemble them, and then send them with their own letter to Nintendo headquarters.

Regardless of whether or not you think the TOS is excessive, the group is technically correct: every item they list is actually in the terms of service that you agree to when you power on the device. However, whether or not Nintendo will ever go to such lengths to advertise, sell personal information, or brick handhelds remains to be seen.

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Posted by blackhole89

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Apple is already doing things that are much worse than that, and the hipsters and cultists are gobbling it up.

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Posted by blackhole89

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It's relatively likely Android will eventually roll down the same path, and nothing will change in this case either as most users have MasterPhW's "They'll only make use of this when the user is really evil, promise!" attitude towards this kind of thing. (Not that this even explains the granting all rights to user-generated content part.)

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Posted by MasterPhW

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It's really sad to see, that some seems to be proud to do pirating games, instead of just support the companies that made these games.

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