Nintendo's 3DS EULA Raises Privacy, Content Ownership Concerns

Nintendo has taken a page from Sony's playbook, even as the video game giant struggles to recover from the impact of its decision to remove Other OS support. The Free Software Foundation recently examined* the EULA and privacy policy Nintendo attaches to the 3DS; both are far more draconian than corresponding agreements for the DSi, DSi XL, DS Lite, or original DS.

Let's start with the privacy policy. The two documents are organized differently; a careful comparison indicates that the DSi policy matches the 3DS policy on nine of the latter's ten points. The missing point (ix in the 3DS agreement) is the importance differentiator. It states that Nintendo may collect Personally Identifiable Information (PII) in order to: 'prevent potentially illegal or offensive activities or to enforce our rights or the rights of our users.'(emphasis added)

Nintendo's Rights

The DSi's EULA states that customers (aka "You"):
may not use the Nintendo DSi Service for commercial or illegal purposes, in a way that may harm another person or company, or in any unauthorized or improper manner as we may specify from time to time in this agreement, our Nintendo DSi Code of Conduct, or otherwise.

The 3DS keeps this paragraph, but includes the following jaw-dropper:
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.
Imagine Microsoft or Adobe, neither of which is a champion of free/open source software, attempting to claim they owned all of the materials anyone created or edited using their software, or Bic asserting it had legal write (pun intended) to any missive composed using one of its various pens. That's what Nintendo is doing here, in a genuinely jaw-dropping example of hubris.

The company has also tightened its control over bricking the system, though the language is more subtle. The DSi EULA states: "We may take steps to disable any unauthorized software, services or device installed in your Nintendo detecting and disabling them through the Nintendo DSi Service and/or game software. If we detect unauthorized software, services, or devices, your access to the Nintendo DSi Service may be disabled and/or the Nintendo DSi System or games may be unplayable."

Compare that to the 3DS 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.
Nintendo's massive power grab may be an attempt to end-run around the Supreme Court decision last summer that deemed jailbreaking fair use. By asserting that it completely owns everything related to or created with the 3DS, it may be trying to argue that there's no such thing as "fair use," because the user literally owns nothing. No matter what the company's motive, the new EULA needs to be challenged in a court of law. EULA's are not automatically legal; attempting to seize absolute control of users' rights is a bridge too far.