

Brick Nintendo before they brick you - Auguste
http://www.defectivebydesign.org/nintendo

======
flipbrad
Until the reviewing of service clauses become a normal part of product reviews
(which it clearly should, in light of the PS3 OtherOS saga and current class
action), most consumers simply aren't going to be properly exposed to this
info until they've spent their money and things have gone pearshaped, and
their only avenues of action are speculative class actions, pointless consumer
complaints, and longlasting, potentially harmful boycotts.

Please, if you're ever going to review a device that has internet connectivity
and is capable of remote bricking and feature removal, please also review the
T&Cs and express your opinion in light of what you find. You wouldn't hold
your tongue over substandard hardware, and you'd probably hold back your
dollars until a better performing, more reliable machine came out. Be
consistent, and consider the device's lexware too; in time, it'll be a feature
for the manufacturer to improve, just like all the others.

~~~
CodeMage
While I do agree with you that T&C should be included in product reviews,
there's one thing that worries me: T&C can change easily. Picture a scenario
where a manufacturer comes out with a good product and acceptable T&C, gets
great reviews and subsequently -- when the consumers are hooked -- starts
introducing changes to T&C.

Maybe I'm missing something, but it seems like this can only be mitigated, not
solved. I'm getting more and more worried by the ever-increasing degree to
which the manufacturers dictate how we can use the products we buy from them.

~~~
IgorPartola
Let's take it a step further and write a T&C that is written by the consumers.
Like GPL, but for T&C and privacy policies. Something like:

* All content generated by the user with the help of the product belongs to the user

* The user is free to take apart, modify, reverse-engineer, etc., the product

* No data is to be sent to any outside network without the user's explicit permission.

* No sensitive data, including but not limited to location data, communications, usage patterns, identifying addresses, personal information is to be stored without the user's explicit permission.

* These terms may not be changed without the user's explicit consent. If the product producer wants to change the terms, and the user does not consent, the old terms stay in effect.

~~~
omouse
You're basically saying "down with capitalism". There's no way to work within
the current system because everything that goes through it is bent towards
profit and power. Do you really think companies would adopt such a T&C? Which
would take precedence, the T&C or local/state/federal law?

~~~
jonprins
No, GP is not saying 'down with capitalism.' They're saying 'down with
restrictive terms of service similar in scope to the prevention of the Hush-A-
Phone from being used on the Bell System in the 1950s.' Which, well, is pretty
much the opposite of 'down with capitalism:'

The restriction from connecting your own devices to the Bell System
forestalled the production, sale, and invention of devices such as the
answering machine (Bell invented one in 1930, along with magnetic storage -
but scrapped the project because they thought it would cause people to use the
phone less), fax machine, and so on and so forth. The 1956 ruling against Bell
in favor of Hush-A-Phone effectively allowed the invention, sale, and use of
foreign attachments to the Bell System.

The restriction of doing what you want with your own console/computer is
essentially the same damn thing. We've already fought this war against
monopolists in technology; it's sad that we have to do it all over again.

Further reading:

Hush-A-Phone vs. United States (Hush-A-Phone appeal to an FCC ruling):
<http://en.wikipedia.org/wiki/Hush-A-Phone_v._United_States>

The Master Switch (Tim Wu): [http://www.amazon.com/Master-Switch-Information-
Empires-Borz...](http://www.amazon.com/Master-Switch-Information-Empires-
Borzoi/dp/0307269930)

~~~
dhimes
OT, but: As I recall, it was the breakup of the Bell monopoly which ushered in
the new devices. Until then, I don't think you could even _own_ a phone. You
had to lease.

I was pretty young then, but I do remember that after the breakup the market
saw a rush of new phone devices.

~~~
jonprins
Not really. The breakup of the Bell monopoly helped, but Hush-a-Phone vs. US
helped set the stage for competing long distance carriers like MCI. It set the
stage for devices like the Carterfone (
<http://en.wikipedia.org/wiki/Carterfone> ). Things really didn't take off
much until the breakup, because of the monopolistic practices of Ma Bell; even
though interconnect was legal, they brought insane market pressure to bear.

~~~
dhimes
I agree with your last sentence.

------
mootothemax
_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.
(Chapter 1, Nintendo 3DS End User License Agreement)_

Just playing devil's advocate, isn't this a fairly standard clause so that the
company involved can release, e.g., statistics on the most popular games, or
show what games are most popular with which age groups and genders?

~~~
roc
Usage isn't user content. There's no reason they couldn't track anonymized
usage data. But they've meaningfully conflated usage data with other
Personally Identifiable Information. Which means, no, it's not just
boilerplate to cover the collection of broad demographic and usage data.

~~~
bostonOU
_We also may share such information and any User Content you create with third
parties. We may share your PII, Non-PII, and Aggregate Information with third
parties to complete your transactions and provide you with advertising and
other promotional materials on your Nintendo 3DS System._

In government & medical work, they hammer into you that PII must be protected.
Nintendo specifically saying they can share it is a big deal. Agreed, PII !=
usage data.

------
neanderdog
When I started reading the article's comments about children, it got me
thinking about children and contracts.

I found this: <http://www.ehow.com/about_5030458_legal-contract-age.html>

Not sure how accurate it is but makes sense. I wonder if an appropriately
nasty legal response could be brought against companies trying to engage
underage minors into legal contracts.

This would have broad implications (good, imho)

~~~
greyfade
It's probably worth pointing out that EULAs are typically prosecuted in the US
as contracts where "clicking agree" is equivalent to "signing" the "contract."

~~~
neanderdog
Sure, but from here: <http://www.ehow.com/about_5030458_legal-contract-
age.html>

Minor children are not of legal contract age, that is to say, with few
exceptions, they cannot consent to or enter into a binding contract until they
reach the age of majority.

To me, this means their clicked "consent" is non-binding. For any normal
written contract, parents co-sign consent. Not so with click-through
agreements.

Then comes my personal nitpick with clicked "consent". What's the legal proof
of identity of the clicker? The crap filled in the "User Info" screen? Could
be fake. So what's really bound to whom?

~~~
sukuriant
Unless they make it so that you buying your child is you consenting for them

------
scott_s
_Please note just how absurd this claim is when you consider something like
the photos taken with the 3DS camera._

I don't think that the photos you take with a 3DS are what Nintendo means by
User Content. First, aren't the photos stored locally on the 3DS? They are on
the DSi. Nintendo would have no access to them. I think User Content means all
of the stuff you tell Nintendo that's not explicitly personal information
(PI).

From the 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. (Chapter 3, Nintendo 3DS End User License
Agreement)_

Is this different from what the iPhone, PS3, XBox and other consumer devices
that connect to corporate networks do? That doesn't necessarily get Nintendo
off the hook, but if we're going to having genuine discourse about this - and
not just knee-jerk responses - then we need to know the full context.

Piracy, of course, is Nintendo's motivation here, and as I understand it,
piracy on the DS was rampant.

Finally, regarding children's personal information, I suspect they're required
by law to have certain policies regarding children's personal information. Of
course, they can't actually _prevent_ children from sharing such information,
so they have to state what _should_ happen, and probably have silly age-gates.

I find the site's comment on this disingenuous: _If children shouldn't use the
device for what it is made for, then why is Nintendo marketing it toward
children?_ There's more to the 3DS and its online play than sharing personal
information.

~~~
CodeMage
_I don't think that the photos you take with a 3DS are what Nintendo means by
User Content. First, aren't the photos stored locally on the 3DS? They are on
the DSi. Nintendo would have no access to them. I think User Content means all
of the stuff you tell Nintendo that's not explicitly personal information
(PI)._

This is the definition taken directly from Nintendo 3DS End User License
Agreement (Chapter VI, Article 13):

 _"User Content" means comments, messages, images, photos, movies,
information, data and other content (which include the Nintendo 3DS user
names, Mii, Mii nicknames, names of creators, and other names) which are
created by, or licensed to Nintendo 3DS users including you, which will be
used by Nintendo 3DS users including you in connection with the Nintendo 3DS
Service._

The only wriggle room here is "in connection with the Nintendo 3DS Service".
I'd rather err on the side of caution and interpret the whole thing to include
"photos taken with the 3DS camera".

 _Is this different from what the iPhone, PS3, XBox and other consumer devices
that connect to corporate networks do? That doesn't necessarily get Nintendo
off the hook, but if we're going to having genuine discourse about this - and
not just knee-jerk responses - then we need to know the full context.

Piracy, of course, is Nintendo's motivation here, and as I understand it,
piracy on the DS was rampant._

Piracy or not, bricking the system should be unacceptable. Furthermore, I'm
not convinced piracy was the primary motivator for EULA changes. A lot of this
stuff looks like a "holy shit, look at what happened to Sony" kind of
reaction.

 _I find the site's comment on this disingenuous: If children shouldn't use
the device for what it is made for, then why is Nintendo marketing it toward
children? There's more to the 3DS and its online play than sharing personal
information._

Please be consistent. If you say that we "need to know the full context", then
don't take things out of context yourself. Here's the relevant part of the
EULA:

 _Children must not include any PII in their Nintendo 3DS System user name,
Mii name, Mii profile information, in-game nicknames or other User Content.
Children also must not disclose PII when communicating with other Nintendo 3DS
System users or Nintendo through the Nintendo 3DS System wireless
communication features. (Nintendo 3DS System Privacy Policy)_

This means that if I want to give my kid a 3DS as a gift, I have to explain to
him that he can't even use his real name when playing with other kids online.
The sharing and the social aspect is obviously an integral part of the 3DS
online play. Yes, it might not be the most important or most popular part, but
it's integral. In that context, I fail to see how the site's comment you
quoted is disingenuous.

~~~
scott_s
I don't think that your photos are uploaded to Nintendo - I may be wrong, of
course, but it doesn't make sense why that would happen. I assume they're
thinking more of avatars that users may create themselves.

I also think it's unacceptable for a company to automatically disable a
system. I'm not excusing their policies, but trying to understand them. But I
think that clause was clearly because of piracy, as it was rampant on the DS.
I don't see how anything they said could have prevented what happened to Sony.

I'm sorry if it seemed like I was taking the article out of context, that was
not my intention at all. I assumed that whoever read my comment would have
read the article, and I quoted the exact part just so it was clear what I was
responding to.

With that said, I assumed that parents would, as a matter of course, tell
their children not to share personal information online.

------
larrik
I thought intentional remote bricking is illegal ("self help"), regardless of
contract or terms.

~~~
wmf
They may be able to get around that by making the bricking "accidental" (e.g.
"we didn't test the firmware upgrade on hacked consoles" _wink wink_ ). But in
general Nintendo shouldn't threaten bricking even if they're not planning to
do it.

------
TuxPirate
I'm very disappointed in Nintendo. My childhood friend just lost quite a bit
of respect I maintained in him.

------
CodeMage
Maybe I'm cynical, but to me it seems that Nintendo is reacting to what
happened to Sony in a typical "large corporation" way: "Let's make sure our
asses are covered legally, because it's sure as hell easier than making sure
our technology is up to par."

~~~
joev
s/easier/less costly/

------
purephase
Some of those terms of service clauses are pretty ridiculous. They share PI
with anyone? Is that even legal?

~~~
w1ntermute
It's legal in the US, but not in Europe (don't know about Japan).

------
victoro
Facebook really opened a can of worms by showing other large corporations how
much information and rights users are willing to give up (knowingly or
unknowingly) for "the privilege" of using products that make their life more
convenient/entertaining. I can see many more corporations doing things like
this in the near future. Coming soon! Fridge that sends advertisers your
personal diet information and is allowed to broadcast its contents to the
world whenever GE sees fit!

------
jjcm
One thing I'm confused about here is the costs on their donation page. They
say that $10 will get you one brick delivered to Nintendo - these are
cardboard bricks people. They do not cost $10/piece, even with shipping. Hell
you can find them on Amazon for ~1.50/piece ([http://www.amazon.com/16-pc-
Large-Red-Blocks/dp/B001J8FEB2/r...](http://www.amazon.com/16-pc-Large-Red-
Blocks/dp/B001J8FEB2/ref=pd_sim_t_2)), surely a bulk order would be less than
that. Anyone want to garner some insight into this?

~~~
bostonvaulter2
Maybe the rest is a donation.

~~~
Pyrodogg
It is. It's not even called an order page, it asks you to select a
contribution amount. There is a separate bulk order page where you can get 100
bricks for $159

------
omouse
Brick-through-window, a new DRM scheme by DefectiveByDesign.

------
rajpaul
it isn't surprising that Nintendo would try to aggressively control their
device when you considering the amount of pirating that took place with the DS
with the help of products like R4, acekard, CycloDS, etc.

downloading GBs of games and putting them on a single SD type card was
trivially easy and didn't require hardware modification of the device.

~~~
greyfade
It's understandable, yes, but only under the condition that the executives are
blissfully unaware of the backlash this can cause or that excessive control
does nothing to stop "piracy" on the platform. (It sure didn't help Sony.)

~~~
rajpaul
If you are saying that anti-piracy measures don't improve profitability, I'd
be interested in seeing sources.

------
bonch
This might get me voted down, but honestly, people who obsess over game
console TOS really need to get a life and find something worth worrying about.

------
grantg
Simply put, they don't want the DS hackers hacking the 3DS.

~~~
greyfade
They will anyway. This isn't how you stop them.

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nightlifelover
I'm sick with this free software ethics bullshit. I would sue them if I were
Nintendo.

~~~
sukuriant
For what?

