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Nintendo 3DS Terms of Service Comes Under Fire

The Terms of Service for the 3DS includes alarming details concerning privacy and user content.

Defective By Design, part of the Free Software Foundation (FSF), is an anti-DRM (Digital Rights Management) campaign that is now targeting Nintendo over the company’s Terms of Service for its 3D handheld.

Players have to agree to the system’s End User License Agreement (EULA) to fully use all the functions of the 3DS. Some of the ToS comes into play when the 3DS’ wireless connection to the Internet is turned on.

Joshua Gay, a campaign manager for the FSF, said, “this combination of legal and technological restrictions make the Nintendo 3DS dubious, devious, and defective.”

The 3DS has several features that use wireless Internet access. SpotPass can automatically connect to a Wi-Fi- hotspot while playing a game or in sleep mode. SpotPass enables information to be sent from and downloaded to the 3DS. StreetPass can automatically detect and connect to other 3DS systems nearby, and lets players share content with that 3DS.

The 3DS’ Activity Log records what games and applications someone has played, the length of play time, and when it was used. The Activity Log also records a player’s physical movements, counting the steps they take while in possession of the 3DS.

If the user has the system’s wireless signal turned on, all that information will be uploaded to Nintendo’s servers, including additional data, like photos on the 3DS. Nintendo collects the user’s Personally Identifiable Information (PII) such as their name, age, gender, location, home address, email, and telephone number.

It also tracks and collects the Activity Log, Friend Codes, Internet cookies, IP and Mac address, wireless access point data, and the 3DS’ device ID and serial number. The ToS gives Nintendo the right to share the collected information and user content with marketers and advertisers.

Nintendo also claims the right to own any user content the player creates on the 3DS:

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)

Nintendo defines user content as, “comments, messages, images, photos, movies, information, data and other content” (Chapter 6, Nintendo 3DS End User License Agreement).” Some 3DS games like Face Raiders allow the player to take a photo of themselves and use it in the game. If a user takes a picture with the 3DS camera, Nintendo claims it owns that photo. Those pictures and other media can then be used for one of Nintendo’s marketing campaigns.

Commenting on Nintendo’s ownership claims, Gay said:

Please note just how absurd this claim is when you consider something like the photos taken with the 3DS camera. Can you imagine Canon or Nikon claiming the right to use pictures taken by you with one of their cameras? Can you then imagine them calling you a criminal for modifying the software on the camera to keep them away from your pictures?

Questions arise from the ToS over the privacy and safety of children when they use the system or take photos of themselves using the 3DS camera. Nintendo urges children under 13 to not use their real names or even take pictures:

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)

Gay said, “If children shouldn’t use the device for what it is made for, then why is Nintendo marketing it toward children?”

Nintendo can also firmware update the system without a user’s knowledge if the 3DS is connected to Wi-Fi.

Nintendo states that they “may update or change the Nintendo 3DS System or the Nintendo 3DS Service in whole or in part, without notice to you.” This includes “embedded software” — aka the firmware on your device (Chapter 6, Nintendo 3DS End User License Agreement).

Nintendo can also “render the system permanently unplayable,” or “brick” a user’s 3DS system remotely, if it feels the 3DS is being used in combination with modifications, hacks, or other unauthorized software. By checking the 3DS with a firmware update, it will delete the unauthorized additions and disable the system.

If the system is bricked, Nintendo claims it could possibly be unrepairable, even by its own support center. Nintendo disabling the system also voids the user’s warranty, so the person would have to pay Nintendo to attempt the repair.

In protest, Defective By Design started an additional campaign earlier this month called,  “Brick Nintendo…before they brick you.” The goal is to send cardboard bricks mimicking the ones found in the Mario games to Reggie Fils-Aime, President and Chief Operating Officer for Nintendo of America. The bricks are created by the group’s DRM Elimination Crew and would be sent to Nintendo with a protest letter provided on the campaign’s Web site.

To send a brick, a donation must be given to Defective By Design. The campaign has several different donation increments to choose from. Defective By Design reached its goal of 200 bricks last week but is still collecting donations and protest letters.

The 3DS released on Feb. 26 in Japan and March 27 in North America. It retails for $249.99. As of March 31, the system has sold 3.61 million units worldwide.

Photo by Richard Drew / Associated Press

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