Brick Nintendo before they brick you | Hacker News Reader

Brick Nintendo before they brick you

defectivebydesign.org

177 pointsAuguste54 comments

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.

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.

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.

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?

Not at all. Capitalism is still the best we've come up with so far to align individual goals, desires and morals with those of the society as a whole (at least on average).

However, I don't see how this is different than a EULA. Not all the companies would adopt this. In fact most won't; but imagine a company, say a cell phone manufacturer, or a car maker (think Tesla) that says "We are adopting the XYZ T&C and privacy policy because we respect our users. We are committed to making the best products in our industry and do not need to rely on a bunch of legal traps to sell them." Would you buy from a company that does that? I would.

And of course the law takes precedence, just like it does with current T&C. The only thing is that the users are the ones who are originating the T&C, not the companies. That may be a very radical shift for corporate lawyers, but I don't see how this is science fiction otherwise. Just like the GPL, it could operate perfectly within the current system.

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...

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.

It's true. In fact, some people still rent their phones. http://blogs.computerworld.com/node/3538

I still have the first phone I ever bought, in 1985 right after the rules changed. (And because it was made by Western Electric in the good old days, it still works!)

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.

I agree with your last sentence.

If the UN Guidelines for Consumer Protection haven't brought down capitalism, why do you think having pre-written T&C that a company can opt to use would?

If anything, having easily understandable pre-written T&C in the style of similar license could only support capitalism: companies would opt to use them if they deemed it profitable, and consumers would be more able to make the informed decisions on which capitalism should thrive.

I also wonder how much cash the companies could save by not having to have lawyers involved in drafting custom T&Cs. One nice thing about GPL is that once a precedent is set, it's more or less followed everywhere. Same here: once the courts establish what this public T&C includes or excludes, it becomes much more clear what a company can and cannot do.

I really like this idea. Now we need to find a well-known consumer advocacy group that can publicize such a standard and start getting some adoption.

It would be really great to have various standards like this for companies to opt into. Then reviews could say "product X is great and it follows the accepted Respected Consumer Rights Agreement."

I think this a good example of how capitalist companies can be reined in without government interference.

It'd be really great to see Creative Commons-style licenses printed on product boxes.

It would be good to have a clause stating something along the lines of "Any modifications or addendum to these terms need to be prominently displayed and clearly communicated".

There's the germ of a bait-and-switch case with a mfer who drums up interest with reasonable T&Cs and then switches to rapacious ones when sales take off.

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?

I'm skeptical as well. While the terms are broad there may be a reason. Statistics and game usage information for developers come to mind. I'm sure there are other rather mundane uses of this data.

The content and scope of the ToS seems rather scary and far reaching, but one has to wonder if Nintendo is publishing thie ToS because it intends to use the devices as surveillance devices or are simply protecting their collective *sses from a litigious society.

Couldn't they better protect their collective * sses from a litigious society by producing a TOS that is more reasonable?

I've also seen similar language described on other websites' TOS; didn't Facebook have a debacle about this too at one point? It was explained then that it was necessary basically because distributing uploaded/shared photos to CDNs and the like might involve additional production and distribution the user didn't explicitly authorize. They might need to copy your photos to give to the CDN vendor and the license needs to be sublicensable so the CDN vendor can legally copy shared photos across their network.

On the other hand, though, the marketing purpose part just sounds downright shady.

I don't think Facebook's questionable language contains the "fully sublicensable" bit, which clearly implies they plan to sell anything created using a DS.

(And even just the "worldwide, royalty-free, irrevocable, perpetual, non-exclusive" bit is draconian. Facebook was under fire for adding "irrevocable."

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.

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.

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)

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."

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?

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

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.

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".

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.

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.

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

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.

Self-help is often legal.

Scarily enough, a few years ago, people were out pushing a bill (which got dubbed the "right to virus") that would have made this sort of thing legal. And to our PCs, too.

Anyhow, I definitely won't be getting a 3DS.

Yea, I remember this: http://www.groklaw.net/articlebasic.php?story=20110218181557...

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

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."

s/easier/less costly/

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

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

Well, many people will live at 123 Fakestreet and 1485 NoHomeHere Ave, and have a phone number of: (123) 456 - 7890.

Coming soon: Nintendo-assisted spam to your doorstep!

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!

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...), surely a bulk order would be less than that. Anyone want to garner some insight into this?

Maybe the rest is a donation.

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

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

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.

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.)

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

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.

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

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

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

For what?

Reply on news.ycombinator.com