Posted on May 28 2011 by Nathanial Rumphol-Janc
You know all of that legal mumbo-jumbo that you just accept and don’t read when you’re installing a program on your computer? Or the license agreement that you have to accept when setting up your Nintendo 3DS? Well, deep down we know that we really should read what we’re agreeing to, and in the case of the Nintendo 3DS, there is some stuff in the agreement that is causing some media controversy.
A campaign called Defective by Design by the Free Software Foundation constantly calls attention to Digital Rights Management, and this time they’re targeting the Nintendo 3DS with the slogan “Brick Nintendo before they brick you. Are you really at risk though? Is the concern legitimate?
A lot of the controversy comes from this statement in the user agreement:
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.
What does this mean? Well, anything and everything you do/create on your Nintendo 3DS belongs to Nintendo. No wonder some are saying Nintendo owns your soul. So that’s things like photos taken with your camera, names, messages, Miis and of course, content created in games – like if you design your own track.
So basically if you make something on your 3DS Nintendo can freely use it without your permission. Well, that’s not entirely true because you gave them permission when you accepted the agreement. Of course, it doesn’t seem like much of a big issue – it’s not a direct invasion of privacy, but the Defective by Design campaign wants to pretend it is. Honestly, they sound like extremists clinging to whatever they can. Here’s a quote from campaign manager Joshua Gay:
The Nintendo 3DS is a useful target for our campaign because the Nintendo Terms of Service state so clearly what kind of power they believe they deserve to yield over a user…This does not make them any better or worse than Apple, for instance, but, Nintendo does make our job a little easier in some ways, since we can simply quote their own Terms of Service to show the world just how awful they are.
Overexaggerating much? I think so. What’s really happening here is nothing unusual. In fact, legal attorney Andrew Ehmke says that:
Most terms of service that cover user-generated content will include language that effectively states that the company can use the user-generated content—although, the extent of the use will vary significantly.
In other words, every company and console has similar terminology in their agreements. Nintendo is not an exception here. Of course, if it isn’t the right thing, just because all companies do it doesn’t make it right. As Andrew also says, its a matter between distinguishing between using and owning. Nintendo doesn’t actually own your content, they just have the “copyright clearance” to use it.
Now, that’s unlikely to mean that they’re going to take the best user-made tracks in a certain game and sell them for $20 each. Not impossible, but unlikely. What it in reality means is in trailers, or demonstrations they can say “look at some of the user created content” and show your track. Basically, this user license agreement is asking whether your work can be featured before you even create it. Now let’s be honest Nintendo fans – if Nintendo approached you and asked to feature your created content at E3, you would say yes. It would be an honor. The same goes here.
In Europe claiming rights over user content isn’t legal – so this is only a US issue. Or non-issue really. It becomes an issue if Nintendo started exploiting our work for gain, but they’d get called out for it and there would be massive media controversy. What this ultimately is, is an extremest group looking for something to criticize. Nintendo clearly outline their rights in the user-agreement. Granted, they know everyone will accept it without reading, but when companies do use license agreements to exploit people they get caught out.
If Nintendo said “by accepting this we now own your house”, then this would be serious. But right now it’s just a non-issue, and I feel Nintendo is just the target of a lot of built up frustration from those running the Defective by Design Campaign. Besides, if they had never raised the issue – no-one would have ever noticed. Not because you’re being exploited secretly, but because there wouldn’t be anything to notice. Using user content is perfectly fine, because you still own it. If Nintendo try to sell it, we have an issue. Of course, legally they can according to the agreement, but it’s not an issue until they do it.
To use the user created race course example from earlier again. Say Nintendo made a sequel to a racing game using tracks made completely by users. Most of the users won’t be thinking “damn they stole my track, I want compensation”. Rather, they’ll be thinking “OMG, my track is featured in a Nintendo game.” Of course there will be those against it, because there is some questionable morals running through this issue. Point is though, Nintendo isn’t doing this, so there shouldn’t be a concern. The concern is simply that they can.
The moral in the story: perhaps at least skim over license agreements to make sure you’re getting what you bargain for. Honestly though who’s going to when you’ve got a new 3DS to try? The good news remains that we don’t really have to read the agreements because its common knowledge no-one does. If a company had hidden legal jargon that exploits people they’d be caught. So in the end, we’re all perfectly safe. Nintendo doesn’t own you or your console.
What do you think about this whole issue? Is it a serious concern, or just media overdramatization?
Source: Giant Bomb