Editorial: Questions About The 3DS Terms of Service


Editorial: Questions About The 3DS Terms of Service

By Bobby Blackwolf - May 17, 2011 at 03:30 PM

Nintendo Owns This?
Does Nintendo Really Own This Image Of My Cat?
Nintendo really needs to send Sony a thank you card. For the past few weeks, I, any many others in the independent gaming media, have been covering the recent downtime of the PlayStation Network. Meanwhile, folks at the Free Software Foundation have uncovered some possibly scary terms that you must agree to in order for your Nintendo 3DS to be fully functional.

You can view the End User License Agreement on your 3DS device by going into System Settings, then Internet Settings, then Other Information, and then finally User Agreement. The Privacy Policy appears in the main 3DS manual on Page 100. Be aware that everything I'm going to talk about here only matter to you if you ever turn the Wireless switch ON on your 3DS - if you keep it off all the time, then this will not apply to you.

While I am used to reading EULA's that have a lot of "cover your ass" terminology, Nintendo's seems a little bit more excessive than most. I admit that I do not read through EULA's as thoroughly as I should, just as I'm sure you don't, but thankfully there are people that DO read them and tend to make a lot of noise if they feel that there's something horribly wrong. Sadly, because the majority of EULA's have at least something "wrong" in them, we tend to tune out the cries of the watchers.

You may be perfectly fine with all of this, and if so, great. If not, then at the end I'll send you to a site that is trying to make a difference about this.

Gotcha #1: Nintendo Owns All Your 3DS Content

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)

Now, there's a couple of ways to look at this one. First, wording like this is required in order for you to be able to use your content in a game or related games. For instance: when you play Face Raiders, you take a picture of yourself and play a game of shooting yourself down. Your picture will ALSO appear on the System Menu when you have the Face Raiders game highlighted. This paragraph allows that to happen. This paragraph also allows a possible Face Raiders 2 to come down the line on the next iteration of the 3DS and allows it to use the same facial data that already has been established. That's fine, I think the vast majority of people will be fine with this. It's what else is in this paragraph that may be troubling.

Nintendo could, theoretically, use your pictures as promotional content. They could take your face that you took with their camera, and use it in an upcoming advertisement. And you DO agree to this, because you have the wireless switch turned on. Any photos taken with the camera are considered "User Content" - and that's where we get to Gotcha #2.

Gotcha #2: Nintendo WILL Take Your Data

You agree that your Nintendo 3DS System will connect to the Internet and to Nintendo’s servers—including in both Active Mode and Sleep Mode—for a variety of purposes, including to obtain system or User Content Restriction System updates, for diagnostic purposes, to transmit system log files as described in the Privacy Policy, or to receive Content. (Chapter 1, Nintendo 3DS End User License Agreement)

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.(Nintendo 3DS System Privacy Policy)

Okay, so since we're jumping around, I shall explain what "PII" is, other than an acronym that will make us all giggle as much as we did the day Nintendo announced the real name of their "Revolution" console. PII is "Personally Identifiable Information" which is your name, address, telephone number, email address, and whatever else they want to add to it in the future. These can be collected in the 3DS - when you create your Mii, for example - or when you call technical support and give them your information along with the serial number of your 3DS. This, combined with your Activity Log - the internal application that tracks what 3DS apps you've used, how long you've used them, when you first used them, and when you used them last - are very valuable to advertisers. And note that you cannot delete a game from your Activity Log - you can merely hide it from you being able to see it, but once you put that game back in, it will then bring back the stats. So you can only hide games from your own view, you cannot remove them from the log altogether.

Now, something that is not clear from this, is if they actually do transfer any pictures you take with the 3DS Camera. The resolution of the images are very small and can easily be transferred quickly whenever the 3DS phones home. But really, this gotcha is more for people who like to use their systems for more than the creators intended.

Gotcha #3: Nintendo Can, And Will, Brick Your System, Evil Homebrewer!

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)

So basically, when you upgrade your firmware, the 3DS will look through your Activity Log. If they see something like an R4 card pop up, they will then make your system "self destruct", void the warranty, and render it inoperable. Nintendo has even stated that they do not believe even a third party repair shop would be able to restore the device to a workable state (which actually sounds like a challenge to me!)

Most people who do use modchips or other circumvention devices realize that, by doing so, they will not be able to use the 3DS for any future functions - it is like stopping the device in time. "Either you play with the new upgrades and goodies, or you play games for free," is what one person told me the other day. However, that's not the problem. What if a bug occurs and your 3DS gets labeled as a false positive, and then Nintendo bricks your device and voids your warranty so you can't get it fixed? Even if you were doing nothing illegal, you'd be screwed out of a $250 system with no recourse.

But here's the kicker: Privacy laws of children

As we all know from The Internet, "Nintendo Is Kiddy." Nintendo always aims for the children. No matter what. That Grand Theft Auto game on the DS? Kiddy. Madworld on the Wii? So kiddy it's not even funny. That's what The Internet says. Now, there are laws in place to protect children's privacy, so obviously, Nintendo can't REALLY do all of this, right?

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)

In other words, don't let your kids name their Mii with their real name. Don't let your kids put down where they're from in StreetPass. Don't let kids take their own picture for Face Raiders. Don't let kids take pictures of themselves or their friends with the cameras. That's against the EULA and the Privacy Policy.

In other words, Don't let your kids use the majority of the functions the 3DS provides and advertises. Really?

Maybe all you do is play games at home with the wifi turned off. None of this will affect you, then. However, even if you never put in a Wifi service into the 3DS, you may not be truly safe. If you have the 3DS in StreetPass mode, you may come across a "Nintendo Zone" which will allow you to use the SpotPass notification system and, yes, receive firmware updates and data collection. As I have not encountered one before, I do not know if the "Nintendo Zone" automatically registers with the 3DS or if you still have to explicitly connect to it. It has been recently announced that Best Buy is partnering with Nintendo to bring Nintendo Zones to more people so perhaps this question will be answered soon.

I'm Outraged, How Do I Help?

The Free Software Foundation's blog "Defective By Design" has you covered. They are mounting a campaign to send bricks to Nintendo CEO Reggie Fils-Aime with a letter demanding that they curtail some of the language in the Terms of Service. You'll probably notice that a lot of my information here came from this blog's breakdown of the EULA and you'd be right - but I did verify that these sections do exist in the real 3DS and manual.

Do I think the brick campaign will do any good? Not in the slightest. Do I think having more coverage of the matter in independent and mainstream media will do any good? Absolutely. And that's why Nintendo should thank whoever hacked Sony...This story might come and go and be old news by the time we stop talking about PSN.

What do you think? Is this a story that really needs to be shouted from the rooftops, or is this just the status quo and we just don't realize it because we never read our EULA's? And, why would Nintendo want a low resolution 3D image of my cat, anyway? Would that sell more 3DS's?


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