Your pictures belong to Nintendo

Do you read the ridiculous boilerplate conditions in the “end user license agreement” that accompanies computer hardware and software? You might not believe the ridiculous terms many companies pop in there and pretend you’ve agreed with by opening the packet.

Take the Nintendo 3DS portable console. Nintendo apparently reckons they:

  • have the power to remotely “brick” your console if they don’t like what you’ve done with it;
  • can keep records of who you are and where you go; and
  • have full commercial rights to any photographs you take with it.

That last one in particular is utterly absurd – and you’d hope no court would enforce it – and you’d hope that, like most of these agreements, these terms are more in the nature of an ambit claim, there to protect the company if it inadvertently cocks up and lets something out about a user by mistake. That Nintendo doesn’t actually intend to collect a huge database of personal and private information about customers and to go through their private pictures one by one to see if they find anything juicy and saleable. (Although it seems very likely that they have every intention of using the first one, deliberately destroying your equipment if you dare do something with it they don’t like, like run a different operating system on it and homebrew software. You know, like Dell bricks your PC if you install Linux*.)

Whether they end up utilising these extraordinary powers they claim you’ve granted them, it’s rather contemptible that they’d claim they can do these things. And a reason, while they persist in this anti-consumer nonsense, to avoid giving them any of your money.

*They don’t, of course. Even Microsoft only deletes a user’s Xbox Live access if they find they’re using a modified console – they don’t actually break the console remotely.

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7 responses to “Your pictures belong to Nintendo

  1. I’ve thought for a long time that there should be a small number of standardized “Commercial Software License Agreements”, mandated by law, so that users know where they stand without the need to read the fine print. Any terms in a license that are at odds with the standard version are null and void by definition.

    There is semi-standardization of open source licenses: you know where you stand with GPL, BSD, Apache, etc. Read it once and agree for one package and you never need to read it again. But the commercial outfits are still acting like cowboys, making it up as they go along.

    Another problem, is that I think that many lawyers just don’t get Copyright, even when trained in it. EULA’s read like contracts, using the permission-to-copy as a wedge to do other things that aren’t related (e.g. “we own your personal information entered into our system”). Open source licenses mostly stay within the bounds of Copyright, with some excursions into patents.

    Sadly, I fear that any attempt to standardize would quickly be hijacked by special interests. How do other industries handle this? Can banks just make up any old terms for a savings account, or do they need to use a mandated boiler-plate as a starting point?

  2. I totally agree with both of you.
    As these ‘agreements’ become more ubiquitous I think people are getting much more used to not reading contracts. Most people I know don’t read even read their insurance contracts.. I think standard, short, plain language contracts should be mandatory for important consumer products (like banking, credit, insurance.. maybe even employment).
    I saw this talk on TED a while back from Alan Siegel, this was his proposal..

  3. jordanrastrick

    I’ve thought for a long time that there should be a small number of standardized “Commercial Software License Agreements”

    I think pretty much every contract between a large corporation to an individual should work this way. There are a few standard contracts for the general class of transaction in question – whether buying software, insurance, signing up for a job etc – and industry can ask to have new standard contracts added to that list. Both parties are free to modify the standard contract in a specific instance at will, but the final signed document must be expressed as standard document plus a highlighted list of differences from the standard: “Also, we own copyright on your photos”, or “You get an extra 10 cents an hour, but no penalty rates ever and we can cancel your shift with 5 minutes notice.”

    With this kind of moderation of unequal bargaining power and access to legal advice, it would seem more reasonable to let companies and people make contracts without need for further protections, e.g. things like A.W.A.s might be more workable. Of course I imagine eventually corporate lawyers would find ways to innovate around the restrictions, but I think it would work quite well for at least a while.

    OK, now I see that milfot has suggested a similar thing based on a TED talk. But I still think the point about allowing modifications so long as they’re the most obvious part of things is worth mentioning and I can’t be bothered rewriting my comment.

    Also:

    http://bash.org/?577451

  4. Don’t know why this dropped off my post..
    http://storage.ted.com/Siegel_Credit_Card_Agreement.pdf
    It lays out the terms clearly while it gives scope for different products within that same framework. Modifications or amendments would probably need some kind of limitations to avoid abuse, but broadly I think it is a good idea.
    My favourite dodgy software agreement clause (read most hated) is the one where they tell you that any of the terms are subject to change without notice.

  5. I see Nintendo is starting to take notes from Sony* business models (I was wondering how long that would take).

    My favourite dodgy software agreement clause (read most hated) is the one where they tell you that any of the terms are subject to change without notice.

    You mean all of them?

    But from memory, most of the recent court decisions about lengthy contracts and related matters, are that you can’t just bury things in a fine-print-heavy TOS or EULA that nobody is likely to read.
    Not when Googles Chrome EULA (one of the most user-friendly) weighs in at 4000 words (10 pages).
    http://blogs.sitepoint.com/trying-to-decipher-that-eula-better-have-a-phd/

    Choice 2010 Shonky winner BabyNameMeans.com got fingered over just this practice, on a mere 1500 words.

    And take a bow Jeremy – I think you’re the first blogger not to go with “All Your Pics Are Belong to Us”

    *(The First and Still The Crashiest and Snoopiest DRM)

  6. “And take a bow Jeremy – I think you’re the first blogger not to go with “All Your Pics Are Belong to Us””

    I actually didn’t think of that reference until immediately after uploading the post and rereading the title, but then had to go out. So if I’d had more time I would’ve done precisely that.

    Stupid everyone else having the same obvious idea. *sulks*

  7. sometimes I think these attorneys have a competition to see how long they can make a EULA…Im waiting for one to sneak in the old testament somewhere

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