Nintendo can remotely destroy modified 3DS handhelds

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Nintendo can remotely destroy modified 3DS handhelds

Post by Smiley » Wed May 18, 2011 4:49 pm

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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by BlueCrab » Wed May 18, 2011 4:53 pm

Not news. Its been in the ToS since the beginning, and was noticed back then too.

They can put that in the ToS all they want, but I'm reasonably sure that by law they cannot intentionally brick a device in such a manner as that article suggests. Their ToS does not empower them to do illegal things, no matter how much someone may interpret them to mean that.
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by DaMadFiddler » Wed May 18, 2011 4:54 pm

More than that, Nintendo is claiming rights to any and all user-generated content (including your photos):

http://www.defectivebydesign.org/nintendo

I quote: "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) "

Furthermore: " 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)"
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by DaMadFiddler » Wed May 18, 2011 4:57 pm

BlueCrab wrote:Not news. Its been in the ToS since the beginning, and was noticed back then too.

They can put that in the ToS all they want, but I'm reasonably sure that by law they cannot intentionally brick a device in such a manner as that article suggests. Their ToS does not empower them to do illegal things, no matter how much someone may interpret them to mean that.
Traditionally, it has been understood that state consumer protection laws can block TOS agreements from abridging consumer rights in certain ways, effectively making absurd clauses such as this unenforceable. However, the increasingly "business-friendly" US courts have recently started undoing this tradition:

http://arstechnica.com/tech-policy/news ... -suits.ars
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by BlueCrab » Wed May 18, 2011 5:03 pm

I'm sorry, but nothing gives a company the right to maliciously destroy someone's property. If they had that right, don't you think that Sony would've already done that to everyone with CFWs and "backup managers" on the PS3 or PSP that happen to go online? After all, in Sony's eyes, they're the root of all evil.

They don't have the right to do that, even if their ToS seems to imply that they do. That is malicious destruction of property.

How about this, for reading this post, you have to agree that I reserve the right to come and kick in your door and steal anything of yours I want, and you can't say anything about it. That's the Terms of Service for this post.

Do I now have the legal right to do that? No, no I don't.

If any judge were to say that I did, that judge should be thrown out of the court.

What Nintendo is probably doing with that is trying to avoid someone on the 3DS making a custom firmware or something of the like, and someone then upgrading to a new official firmware and their device bricking. Remember, Nintendo blamed a problem like this (with the Wii and updating boot2) on modifications already (whether or not modifications played any role in their shitty boot2 update code breaking is debatable (and I'm on the side of the fence that they didn't play any role)). By putting that clause in their ToS, they essentially just say that if you use any unofficial modifications, you're on your own. Don't expect Nintendo to support you.

I'm all for people having the right to play around with their hardware to their heart's content, but doing it with the understanding that the company isn't going to support you when something blows up in your face.
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by DaMadFiddler » Wed May 18, 2011 5:11 pm

The argument would be (and this is the point of user agreements in general) a shift away from the concept of actually "owning" the stuff you buy. The company would likely argue that you are actually "licensing" it from them (this argument would likely be focused on the system software, though such arguments have been applied--unsuccessfully so far--to hardware at various points in history), and that they were simply "revoking that license."

This is just the next step in the loss of consumer rights. Sony already got away with removing functionality from the PS3, and this is just the next step. Both political parties are enough in bed with the content industry that they are unafraid to curtail consumer rights for that all-important goal of "fighting piracy," and from Sony's action, this is simply one step further.

The law is only as good as those who enforce it, and a disturbingly high number of our courts are currently packed with pro-business, technology-illiterate morons.

Incidentally: by reading this post, you hereby waive any extant or implied agreement with BlueCrab. Any attempt to enforce the terms of BlueCrab's agreement shall be seen as a violation of this agreement. 'Sup now?
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by BlueCrab » Wed May 18, 2011 5:23 pm

DaMadFiddler wrote:The argument would be (and this is the point of user agreements in general) a shift away from the concept of actually "owning" the stuff you buy. The company would likely argue that you are actually "licensing" it from them (this argument would likely be focused on the system software, though such arguments have been applied--unsuccessfully so far--to hardware at various points in history), and that they were simply "revoking that license."
Incidentally, with regard to the license with the software, I actually agree that you are simply licensing it. You do not own the software you use, unless you wrote it. You only have the rights that the copyright holder happens to give to you. Now, with regard to firmware/system software that gets a bit fuzzy. If the hardware absolutely cannot function without it, then it is an extension of the hardware, in my opinion anyway. Whether or not the law sees it that way is up in the air, of course (as I am not a lawyer).

Intentionally "destroying" a piece of hardware is malicious destruction of property. Period.
This is just the next step in the loss of consumer rights. Sony already got away with removing functionality from the PS3, and this is just the next step.
I agree that Sony should not have been able to get away with removing an advertised feature. That was ridiculous. But once again, I'm in the group that feels that necessary system software == hardware.
Both political parties are enough in bed with the content industry that they are unafraid to curtail consumer rights for that all-important goal of "fighting piracy," and from Sony's action, this is simply one step further.
Also ridiculous that things have come to that.
The law is only as good as those who enforce it, and a disturbingly high number of our courts are currently packed with pro-business, technology-illiterate morons.
And my statement of how ridiculous things have become continues here.
Incidentally: by reading this post, you hereby waive any extant or implied agreement with BlueCrab. Any attempt to enforce the terms of BlueCrab's agreement shall be seen as a violation of this agreement. 'Sup now?
ORLY? By reading this post, you agree that you will hit DaMadFiddler over the head with a fiddle repeatedly until he ... uhh ... uhh ... makes DCRPG a success! Also, DaMadFiddler's previous agreement will be waived, and mine reinstated. :lol:
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by DaMadFiddler » Wed May 18, 2011 5:35 pm

Since I have nothing further of substance to add to this thread, by accessing this post* you hearby agree to waive any and all agreements, implied or explicit, with BlueCrab for the remainder of this thread. This agreement also explicitly prohibits you from entering into any new agreements with BlueCrab, and declares any agreements with BlueCrab--both aforementioned and forthcoming--null and void, regardless of how they may be proposed, agreed to, or triggered. Finally, this agreement is permanent for the life of all parties involved, and is irrevocable and may not be exited, canceled, or otherwise waived.

*"accessing this post" shall be defined as having it loaded into active RAM of any PC or other computerized system you own or operate, regardless of whether or not you actually read it
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by Ex-Cyber » Wed May 18, 2011 6:35 pm

BlueCrab wrote:Incidentally, with regard to the license with the software, I actually agree that you are simply licensing it. You do not own the software you use, unless you wrote it. You only have the rights that the copyright holder happens to give to you.
Nobody actually "owns the software". That's a meaningless phrase. If a user legitimately obtains a copy of the software, then the user owns the copy. That is orthogonal to the issue of who owns the copyright. So the question is: what are you licensing the user to do that the user wasn't allowed to do already (by, for example, 17 USC 107 and/or 17 USC 117)?

Or are you, like some companies, claiming that you are still the owner of the copy itself?
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by BlueCrab » Wed May 18, 2011 8:10 pm

Ex-Cyber wrote:
BlueCrab wrote:Incidentally, with regard to the license with the software, I actually agree that you are simply licensing it. You do not own the software you use, unless you wrote it. You only have the rights that the copyright holder happens to give to you.
Nobody actually "owns the software". That's a meaningless phrase. If a user legitimately obtains a copy of the software, then the user owns the copy. That is orthogonal to the issue of who owns the copyright. So the question is: what are you licensing the user to do that the user wasn't allowed to do already (by, for example, 17 USC 107 and/or 17 USC 117)?

Or are you, like some companies, claiming that you are still the owner of the copy itself?
The point I was trying to make is basically what you said there. Perhaps the way I said it is not particularly clear. The way that I have always interpreted "ownership" of a piece of software is the ownership of the rights to that software (i.e, the one who holds the copyright). When you purchase a copy of a piece of software, you are licensed certain rights. That is what I was trying to say.
DaMadFiddler wrote:Since I have nothing further of substance to add to this thread, by accessing this post* you hearby agree to waive any and all agreements, implied or explicit, with BlueCrab for the remainder of this thread. This agreement also explicitly prohibits you from entering into any new agreements with BlueCrab, and declares any agreements with BlueCrab--both aforementioned and forthcoming--null and void, regardless of how they may be proposed, agreed to, or triggered. Finally, this agreement is permanent for the life of all parties involved, and is irrevocable and may not be exited, canceled, or otherwise waived.

*"accessing this post" shall be defined as having it loaded into active RAM of any PC or other computerized system you own or operate, regardless of whether or not you actually read it
There's a problem with your licenses for anyone who has ever used KOS for the past several years, or of course any other software I write. You must have entered into a license agreement to use that stuff. If all such agreements are now void, nobody has the right to use that stuff anymore.

Congratulations, you've killed the Dreamcast scene with your vaguely worded legalese! Especially since it could be potentially interpreted that any actions on this forum (or any other site hosted on this machine) constitute "operating" the computer running it.
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by DaMadFiddler » Wed May 18, 2011 8:47 pm

BlueCrab wrote:Congratulations, you've killed the Dreamcast scene with your vaguely worded legalese! Especially since it could be potentially interpreted that any actions on this forum (or any other site hosted on this machine) constitute "operating" the computer running it.
...once again showing that the system works! :lol:
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by Ex-Cyber » Wed May 18, 2011 9:35 pm

BlueCrab wrote:The point I was trying to make is basically what you said there. Perhaps the way I said it is not particularly clear. The way that I have always interpreted "ownership" of a piece of software is the ownership of the rights to that software (i.e, the one who holds the copyright). When you purchase a copy of a piece of software, you are licensed certain rights. That is what I was trying to say.
What I'm trying to say is that there are rights inherent to being the owner of a copy (not just permissions granted by the copyright owner), and copyright only pertains to some things that one might do with the software, so there shouldn't be a default assumption that a "license" is present or necessary. This is why the FSF refers to "freedom to run the program for any purpose" as "Freedom 0", and why GPLv2 says: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.". GPLv3 added an explicit "affirmation" of the permission to run the program, presumably because some jurisdictions' laws don't explicitly limit copyright for that purpose (as US law does).
Congratulations, you've killed the Dreamcast scene with your vaguely worded legalese!
:guffaw:
DaMadFiddler wrote:...once again showing that the system works! :lol:
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by BlueCrab » Wed May 18, 2011 11:49 pm

Ex-Cyber wrote:
BlueCrab wrote:The point I was trying to make is basically what you said there. Perhaps the way I said it is not particularly clear. The way that I have always interpreted "ownership" of a piece of software is the ownership of the rights to that software (i.e, the one who holds the copyright). When you purchase a copy of a piece of software, you are licensed certain rights. That is what I was trying to say.
What I'm trying to say is that there are rights inherent to being the owner of a copy (not just permissions granted by the copyright owner), and copyright only pertains to some things that one might do with the software, so there shouldn't be a default assumption that a "license" is present or necessary. This is why the FSF refers to "freedom to run the program for any purpose" as "Freedom 0", and why GPLv2 says: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.". GPLv3 added an explicit "affirmation" of the permission to run the program, presumably because some jurisdictions' laws don't explicitly limit copyright for that purpose (as US law does).
See, I always just assumed that was implied by a legally obtained copy of a piece software, unless otherwise restricted by the license (which I also figured was permissible). I'm not a lawyer, and really don't study this stuff all that much, so yeah...
Congratulations, you've killed the Dreamcast scene with your vaguely worded legalese!
:guffaw:
DaMadFiddler wrote:...once again showing that the system works! :lol:
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CURSES!!!! :evil:
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by Ex-Cyber » Thu May 19, 2011 1:48 pm

BlueCrab wrote:See, I always just assumed that was implied by a legally obtained copy of a piece software, unless otherwise restricted by the license (which I also figured was permissible). I'm not a lawyer, and really don't study this stuff all that much, so yeah...
I'm not a lawyer either, but I've had an amateur interest in copyright law and policy for a while. The main point I'm objecting to is the assumption that a copyright owner has the authority to require a license agreement in the absence of activities that copyright law actually regulates. The court rulings on this issue are confusing and contradictory in some places, so I don't think there's necessarily one authoritative answer as to what the law says on this matter. The most important recent ruling I'm aware of is Vernor v. Autodesk in the Ninth Circuit, and that ruling has some quirks.
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Re: Nintendo can remotely destroy modified 3DS handhelds

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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by DaMadFiddler » Wed Jun 01, 2011 6:46 pm

also tangentially relevant:

http://tech.fortune.cnn.com/2011/06/01/ ... giveaways/
CNN wrote:Earlier this spring, the folks at WTVD-TV, the local ABC affiliate in Raleigh-Durham, N.C., had a bright idea. To drum up interest in the station -- and raise its profile on Facebook, Twitter and Google Buzz -- it organized a sweepstakes contest and gave 11 lucky winners the hottest prize in consumer electronics: an Apple (AAPL) iPad.

What the contest organizers didn't realize -- but would have quickly learned if they'd done their due diligence -- was that they'd just run afoul of Apple's Guidelines for Third Party Promotions. Operating on the theory that its brand is one of its most valuable properties, Apple has laid out some pretty strict rules about what it thinks you can and can't do with its products. Among them: (I quote)

iPad, iPhone and the iPhone Gift Card may not be used in third-party promotions.
iPod touch is only allowed to be used in special circumstances and requires a minimum purchase of 250 units.
You may NOT use the Myriad Set font on or in connection with web sites, products, packaging, manuals, or promotional/advertising materials.
The use of "free" as a modifier in any Apple product reference in a prominent manner (headlines, call- outs, etc.) is prohibited.
You must submit all marketing materials related to the promotion of Apple products to Apple for review.

The two-page document that lists these guidelines -- and many more -- has been around at least since January, but it seems that Apple has begun reaching out to companies to enforce them only recently. Earlier this year, Cult of Mac's Nicole Martinelli counted more than three dozen active iPad sweepstakes and giveaways, including contests run by Mashable, MacMall and Mahalo. None of them, as far as she knows, was ever told not to do it.

Apple declined to comment.
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by BlueCrab » Wed Jun 01, 2011 7:56 pm

The whole Apple thing is more about use of the trademarks and such in promotional materials than it is about the hardware itself, at least that's my understanding of what I read. Note how pretty much everything in it refers to the marketing materials itself, not to the products being given away.

Essentially, they're saying that by running a promotion with Apple's products and using the Apple trademarks to as a part of the promotion, you have to get Apple's permission. As they are dealing with trademarks here, I can see why they'd have such a policy.
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by Smiley » Thu Jun 02, 2011 1:13 am

This fact plus the fact that people cant use their old ds homebrew carts, along with the poor launch titles must be the reason the 3ds isnt doing well. lol.
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by DanteJay » Thu Jun 02, 2011 10:30 am

The whole system is flawed, and simply does not work. Let's just entertain the idea that it is perfectly acceptable for me to walk into Wal-mart, buy a 3DS and automatically be entered into a TOS contract with Nintendo. Fine... But what if I was 15? Since when can minors enter into a legally binding contract, and still be enforced?

Ever walk into a blockbuster and rent a game before? If you look at an Xbox game for example, you'll notice it says: "Unauthorized copying, reverse engineering, transmission, public performance, rental, pay for play, or circumvention of copy protection is strictly prohibited."
I inquired of this while I was running my game store many years ago, and it turns out that you are actually not supposed to rent out these games, but all rental outlets do and the copyright holders turn a blind eye to it. I've never understood this, especially when you consider that in theory, game maker's would make more money if customers were forced to purchase games rather then pay money to rental outlets.

I can assure you that I, nor any of my staff ever sold a single pirated game to any of our customers. But I'll tell you, while I was a lot more rebellious then and wouldn't do this now, you should have seen the excitement my old store generated in our town. Especially when we had customers walking in and playing Halo 2 on our big screen TVs many weeks before it's release. When asked, we just said we had an advanced copy. All the excitement helped us generate even more pre-orders and sell more copies of Halo 2, and other Halo merchandise.
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Re: Nintendo can remotely destroy modified 3DS handhelds

Post by BlueCrab » Thu Jun 02, 2011 11:06 am

DanteJay wrote:The whole system is flawed, and simply does not work. Let's just entertain the idea that it is perfectly acceptable for me to walk into Wal-mart, buy a 3DS and automatically be entered into a TOS contract with Nintendo. Fine... But what if I was 15? Since when can minors enter into a legally binding contract, and still be enforced?
When things ask you to accept, generally they say that you must get a parent to accept it if you are under 18.
Ever walk into a blockbuster and rent a game before? If you look at an Xbox game for example, you'll notice it says: "Unauthorized copying, reverse engineering, transmission, public performance, rental, pay for play, or circumvention of copy protection is strictly prohibited."
I inquired of this while I was running my game store many years ago, and it turns out that you are actually not supposed to rent out these games, but all rental outlets do and the copyright holders turn a blind eye to it. I've never understood this, especially when you consider that in theory, game maker's would make more money if customers were forced to purchase games rather then pay money to rental outlets.
The grocery store I used to work at had a video rental place that had some video games, so I can speak a bit from experience on this one. When they purchased a game for renting out, they had to pay a much larger amount than the game would normally cost to have a license to rent the thing out. They very rarely made back their initial investment on games, so they almost never got new ones in.
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