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The FSF's Campaign Against the Nintendo 3DS
Max Hyre writes "The Nintendo 3DS's terms of so-called service, and the even more grotesquely-misnamed privacy policy, make it clear that you are in the service of Nintendo. Specifically, anything you do, write, photograph, or otherwise generate with the 3DS is Nintendo's possession, for them to use however, whenever, and for as long as they want. On the other hand, if you do something they don't like, they're prepared to turn your device into a doorstop — and you gave them permission when you started using it. And if you have a child's best interests at heart, don't give it to anyone too young to know to never use her real name, type in an address or phone number, or take any personally-identifiable photos. They might, at best, end up in a Nintendo ad."
Is there any way I could interpret this as Sony's fault?
Time to burn some karma, I guess...
There's this strange perception around some parts (particularly around here) that Nintendo are somehow "more ethical" or "consumer-friendly" than the other console manufacturers. This overlooks the fact that Nintendo are the people who normalised console region locking (and who are still trying to push and extend it even now, when Sony and MS have decided they're not interested any more), cracked down on homebrew whenever they can and put out consoles which don't even give so much as a tiny whiff of an "OtherOS" or "PS2 Linux kit" walled garden. In fact, going off their track record, they'll even try to sue you if you have a job they don't approve of and make a post on your blog saying you like one of their games (though I seem to remember they did apologise to the young lady in that particular case after it sparked an outcry).
Ok, they've probably got a way to go until they beat the Sony CD-rootkit fiasco (which didn't actually stem from Sony's gaming division anyway). But in pretty much every other respect, it's hard to say that they're any better than Sony - and I'd personally say that they're more anti-consumer than MS's gaming division (who don't seem particularly evil these days, even if they do occasionally do "inept" or "stupid" over something like Games for Windows Live).
I suspect Nintendo get a free pass from many due to a combination of nostalgia and the fact that they were the industry's underdog for two console cycles. One could perhaps draw parallels with Apple, if one really, really wanted to burn karma. It's not always correct to assume that the underdogs are any more ethical than the.. erm... overdogs. Reflexively and uncritically back the underdogs in every case and you may find yourself in a very uncomfortable position when they actually break through (feel free to insert Egypt/Libya comments here as appropriate to your own political persuasion).
"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)"
DefectiveByDesign.org is run by the FSF You can read the tiny little letters at the bottom of the page.
Or you can read the great big letters at the top of the page: "Defective by Design.org A campaign by the Free Software Foundation."
extreme fundamentalist decisions
I know that we're reached a point in humanity where culture, politics and lifestyle have globalised and we're accelerating toward a totalitarian's wildest dreams on groupthink... but I don't think we're at the point that the FSF should be called "extreme fundamentalists".
Examples of extreme fundamentalism:
- Obey this book or you go to Hell - since you're ignoring the book, let me help you there!
- Science provides the answer to every question - including the unfalsiable ones!
- An eye for an eye - so let me burn out your eyes!
- All property is good - I kill you if you're starving and you take some of my food store!
- All property is bad - I want your hammer to smash stuff up!
etc.
Examples of positions probably founded in some ideal which are not extreme fundamentalism, and which may apply to the FSF:
- Don't grant anyone the right to do anything its wants with any information it can obtain off you.
- Don't grant anyone the privilege to destroy your stuff at will.
- Expose people who try to do either of the above in order to spread awareness and modify behaviour.
- Oh, while you're here - if it doesn't harm you, how about sharing instead of hoarding?
The extra problem, with modern electronic devices, is that the absurd terms can often be enforced automatically, which makes them hard for anybody without significant technical knowledge to avoid, and hard for anybody without significant legal backing to seek redress for after the fact.
The practice of printing crazy shit vaguely grounded in a wet dream of copyright law on packaging goes back at least as far as Edison cylinders. However, an Edison cylinder wasn't going to phone home to the mothership and automatically enforce the terms whenever it got within range of an internet connection. If you did something in breach of the shrinkwrap EULA, the burden was on them to find out and sue you. Now, many of the terms can be enforced automatically, and it is on you to demonstrate that you were wronged in some legally actionable way and that the clickwrap is unenforceable.
In this case, Nintendo appears to be claiming the right to hoover up, and use for any purpose, basically anything stored on the hardware, and to brick the hardware if they don't like its state. Both of these activities would be quite easy to do automatically. It may not be entirely true that "possession is nine tenths the law"; but starting from the position where the opposing party has already done unto you, and you have to fight to keep them from getting away with it is not a pleasant business...
Sure, the person who owns the 3DS might have agreed to the terms, but what if a friend comes along and takes a picture using the device? They haven't agreed to allow Nintendo to use their picture.
specifically you cannot preemptively sign away your copyright on things you haven't even created yet.
Nonsense. That's the basis of most employment contracts, recording contracts, publishing contracts etc.
I, for example, work for "insert massive international technology conglomerate" and they own the rights to ALL work I do during the time oft he contract including work I _MAY_ do in the future. That was the terms of my employment contract - and they can in fact do _anything_ they see fit with _anything_ I do during the instigation and termination of the agreement (it is a matter of debate whether this includes work I do during company hours or my own projects at home.
So, I'm fairly certain they can write that into a contract and make it enforceable... The problem is that this is a "license" not a contract which brings up the thorny issue of enforcement.
You would be on good, or at least interesting, legal grounds by saying that you did not agree to the terms provided. The "contract" provided by Nintendo, at least in UK terms, could be seen as abusive as it can not be terminated (unlike my employment contract). I find it unlikely that the clause "or using a Nintendo 3DS System" would be valid in that it means that you are bound by action (not contract) to an agreement not provided with the device you are using - that is to say you would have no idea that you had agreed to the license or even know what the license terms are just by playing Metroid... kinda stupid. Well, those are just random thoughts - I'm not sure anything like this has actually shown up in court so the number of possible ways to defend yourself and the the "provider" to defend themselves is currently a bit of an unknown.
At least the agreement is non-exclusive!
I have no idea why Nintendo have produced such a draconian license for, what is essentially, a toy.
I'm not an lawyer but I have to work with dozens and dozens of damn software licenses and contracts every day - it's tiresome.
That's right. Extreme fundamentalist freedom- and democracy-mongers!
They should take a little bit of fascism with their democracy, for a healthy balance... ;)
Some of my favourite people are from th US; Vonnegut, Chomsky, Bill Hicks.
The 3DS is region locked. First handheld ever to be so. Every Nintendo home console since the year dot has been region locked. Sony ditched region locking for games on the PSP and PS3. The 360 has region locking, but while it used to be mandatory for certification, MS leave it up to the publishers these days and most of them don't use it. Earlier handhelds such as the Gameboy, GBA and DS were probably not region locked because it was simply too much hassle to put the extra gumpf needed for it into the handhelds at the time while keeping size etc down. And not only does Nintendo region lock, but they also have a paternalist, authoritarian approach to which games can come out in which regions - witness The Last Story getting locked as Japanese-only, despite the success of previous Mistwalker games in the west.
I have no particular brief for MS. I own 360, a PS3 and a Wii (as well as a PSP, a 3DS and a high-end gaming PC). I like my 360 - and I like my PS3. Admittedly, Sony are in my bad books at the moment because I've just had to change my credit card thanks to them (which does tend to grate a bit). I don't tend to beat-up on them in the long term, though, because there are always plenty of others to do that. While at the same time, Nintendo do a lot of other things that are really, really bad (and if you are in Europe, then region locking is really, really bad) and generally seem to get away unscathed - indeed, with a little halo.
I've also got no idea why on earth you think that I just want games full of space marines. A quick glance at my posting history will show that games I've written nice things about lately include Valkyria Chronicles and Ar Tonelico Qoga, both of which have a distinctly non-space-marine aesthetic. In fact, Halo bores me rigid (though I do have a soft spot for Gears of War, largely because it's just so ridiculously over the top).
The absence of a browser in the 360 is an oddity, I'll admit. I've never really understood why they never put one in, given that the Wii and PS3 both have them (though the Wii's is borderline unusable and the PS3's is only marginally better). But to be honest, a browser is pretty low on the list of things that most people want from their consoles. Decent online multiplayer functionality tends to rank a bit higher on the list - and has yet to appear on any Nintendo console.
Just saying.
Legal or not, enforceable or not, this is hostile behavior on the part of Nintendo.
It really is time that companies pay a price for being hostile to their customers, don't you think?
And history has shown that legal or not, when a powerful corporation's legal department wants to go after someone who doesn't have endless resources, there is a de facto enforcement.
You are welcome on my lawn.
Maybe the solution is to realize things are fucked, and just go with it.
No. the real solution is to change the fact that these stupid things are lawful. FSF has a nice example, but the wrong target. They should target the law and politics for making these absurd situations possible. The law should protect you from these situations, not encourage them. Nintendo is only guilty of using the possibilities they were given. Target the people responsible for giving Nintendo these possibilities.
Nae king! Nae laird! Nae yurrupiean pressedent! We willna be fooled again!
Where's my Gnu Call software to replace Skype now that there's a massive impetus to move away from MS-owned Skype?
http://www.gnutelephony.org/index.php/GNU_Telephony
GNU Telephony is a project to enable anyone to use free as in freedom software for telephony, and with the freedom to do so on any platform they choose to use. We also wish to make it easy to use the Internet for real-time voice and video communication, and in fact for all forms of real-time collaboration. Finally we wish to make it possible to communicate securely and in complete privacy by applying distributed cryptographic solutions. Our goal is to enable secure and private real-time communication worldwide over the Internet that is free as in freedom, and is also free as in no cost too!
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