Nintendo 3DS license: We'll brick your device if we don't like your software choices, you have no privacy, we own your photos

John from the Free Software Foundation sez,
From reading the Nintendo 3DS Terms of Service, one could be forgiven for thinking that Nintendo is exiting the video game console business and entering the brick-making business.

The 3DS Terms are a perfect storm of 1) Updates will happen automatically without your specific permission any time the device connects to wifi 2) The device will constantly try to connect to wifi 3) Updates will specifically disable devices found to have modified software or unauthorized peripherals.

On top of that, Nintendo claims a license to photos and other user-generated material on the devices -- and those things are also automatically uploaded, along with user location data gleaned from wifi network proximity.

DRM prevents users from disabling any of these antifeatures, which is why has taken an interest, encouraging people to send cardboard bricks to Nintendo. In the wake of all the Sony PS3 news, is this really the direction Nintendo wants to take things?

It gets better: Nintendo claims a perpetual, worldwide license to the photos and videos you take with your camera!

Nintendo 3DS Targeted in Anti-DRM Campaign (Thanks, John!)

(Image: Fimo Nintendo 3DS, a Creative Commons Attribution (2.0) image from hansel5569's photostream)


  1. Considering its a garbage camera the amount of times Nintendo abused this in the past with similar devices. I don’t think there is anything to worry about here.

  2. So, what you’re saying is that when some kids take a picture of their wiener, Nintendo will be collecting/licensing CP?

  3. Yet another reason why locked down, limited-use devices like gaming consoles and portable gaming consoles are consumer-unfriendly.

    Maybe they’re trying to get into the homemade porn industry with the automatic uploads and perpetual licensing of user videos and photos…

  4. How is this anything like the PlayStation debacle? I understand that there are a lot of reasons Nintendo would want to reconsider this choice, but I don’t understand what you are trying to say with this comparison. Are you saying Nintendo should be scared of drawing the wrath of hackers as Sony may have done? That seems a stretch at best.

    1. I had in mind two connections with Sony:

      1) The PlayStation network was compromised, leaking lots of personal information. Nintendo is collecting a ton of information here, over the network, posing similar information security problems.

      2) Sony has been hotly pursuing device liberators like geohot, largely on the basis of them undermining Sony DRM. Nintendo’s response here is to continue to use DRM, and to use it to enforce terms ridiculous enough that there is again incentive to circumvent it. A better lesson for them to learn from Sony would be to stop trying to enforce these restrictions on their users.

  5. This is a weird concept, because it turns the 3DS into a magic ownership portal – anything that passes through it, Nintendo owns!

    It should just start gobbling up everything it can see – take pictures on its own, start taking pictures of your book manuscript – it’s Nintendo’s now!

    Why is stealing someone’s pictures somehow less evil than stealing anything else? Imagine if Apple tried to do this with any *documents* made on an Apple computer!

  6. We’re going to find out something rather ugly over the next decade or two. We’re going to find out that people driven to leadership either in business or government are also driven to look at the rest of humanity as some form of slave or another. And what we’re seeing is the process of empowering them with technology that provides a positive feedback to that meme. If the general public does not start realizing this, and acting on it, (It won’t do either) the results are going to dire. It’s probably as natural as a tsunami after the right kind of earthquake, or the resultant ash fall after a distant volcano erupts. It’s just the interaction of the human animal with the toys it makes for itself. Just as the atomic bomb tested and shaped the nature of our politics, this will test our ability to adapt and survive.

  7. Something’s not right about this story. Why would they upload the pictures? What’s the upside? You are going to have way too few Ansel-Adams-with-a-3D-camera masterpieces and *way* too many 3D shots of underaged /b/tards’ junk that you now own the license to. Why would a company willingly sign their own death warrant like that?

  8. Just wait till a news team gets wind of the fact it automatically uploads photos taken with the device and connects that with the fact children could take pictures of themselves partly or fully unclothed.

  9. Wow… I was in a game store a few days ago and I played with one for a couple minutes. How much of my stuff does it own now?

  10. So would Nintendo be in possession of child pornography if they upload the inevitable images some teens will take of their, how they say, “junk?”

    1. Not just in possession of CP, but license holders with the right to sub-license, which to me sounds like intent to distribute child pornography.

      Also they would likely be in possession of pictures of trade secrets, photo-reproductions of copyrighted materials, classified information, and untold number of images of people who have signed no model release.

  11. thats disgusting. Something else than carboard bricks should be done. I was planning on doing some 3d stop motion with the thing, but now i wont go even near it.

  12. Though it’s definitely an extreme measure and would eliminate any Wi-Fi multiplayer capability, is there anything that would prevent you from opening it up and physically removing the antenna, then using whatever homebrew software you please?

  13. uhm.. that is not true? at all?

    There is a switch available to turn of wireless communications at ANY point in time. The photos are by default saved on an external SD, and there is no geolocation service on 3DS :) so there you have it :) Anything else or maybe sony plans to bring more negative propaganda?

    Nintendo in fact doesn’t even ask you about your year of birth, and doesn’t ask you ANYTHING that could be used to prove your identity, AND it uses only anonymous cards, points linked to your device SN (anonymously) in order to purchase software online.

    Nintendo has the most safe and respectful service there is to such a degree, that some times turns against them.

    1. Yes, you can turn *all* wireless off. But if wireless is on at all, like to use features on the device, the user is unable to prevent Nintendo remotely accessing and updating the device. I don’t think crippling functionality on the device in order to protect data is an option for most people.

      There doesn’t need to be a geolocation service on the device. If they retrieve the name and mac address of the wireless access points to which you are or have been connected, then they can run that information through a location database themselves. It doesn’t matter that this is not marketed as a feature to users directly, or that there is no user interface for it on the device. There’s a shell script floating around online where you can get your own laptop location based on wireless access point data, just by talking to the public APIs; and it works pretty well. Pretty sure Nintendo can do the same with your access point data :).

      I’m also pretty sure that Nintendo can access the SD card.. And if not, they can push a software update to give them that access. Taking them at their word, there’s no reason to think data on a card is any safer.

      I’d like to be skeptical too, but unfortunately I think the story is accurate.

      1. That’s making quite a few assumptions. Sure, it’s technologiclly possible, but Nintendo doesn’t have a history of doing any of that. Infact, it’s verry protective of it’s family friendly image.
        It only takes one article saying “Nintendo stole your family fotos” for that to be destroyed and their sales along with it.

        It makes no sense to asume Nintendo is tracking you and stealing your photos because of a verry silly Terms of Service document. Something that’s atached to pretty much every device you own right now.
        Less FUD, more solid evidence please.

        1. Okay, let me put it like this: “Nintendo reserve the right to track you and steal your photos. Although, they might not actually be doing that at the moment.”

          There, that’s much less scary. isn’t it? ….wait. No it isn’t.

          1. The problem is if that scares you, you can’t use any modern electronics anymore. Everything comes with crazy EULA’s and End User agreements where you sign over all your rights and your first born child.
            When everything is scary, nothing is.

          2. Pretty much no major electronic device I use comes with a crazy EULA.

            For a start, all the computers in the house run Linux. So does my media center I use instead of a TV. I’m just about to switch to a router that I can run FOSS firmware on. My N900 smartphone had a minor looney clause on the last upgrade, but I guess nothing is perfect…

            I agree that looney clauses are difficult to avoid. But that’s not a reason not to complain about them.

        2. I don’t really want to have someone have to become a victim before there is an outcry. The outcry should happen at the moment a company (and yes, lots of companies do it) makes a claim to have such power. The suggestion that we wait until Nintendo *actually* sends police to people’s houses ala Sony, or until Nintendo *actually* makes use of this ridiculous license over user photos and information, is not persuasive to me. Let’s close the door before Nintendo actually causes people harm, not after.

          1. But wouldn’t it be better if the outcry were about something, you know, real?

            The 3DS does not automatically upload photos and all user-generated content, and, as is made clear by actually reading the EULA, the content license Nintendo requires is for the 3DS online service. If you find something sinister in a publisher requiring your consent before publishing your content, then you may not care to reply as Boingboing requires a similar license of you for your comments on this site.

  14. Been wanting a new handheld console as my iPod doesn’t hold charge long enough to really get gamey. Heard about this and looked at the available 3DS games, decided on a DS Lite. Between all the DS & GBA games I’ll keep busy until these odd ToS issues are ironed out, there are more games, and the 3DS price drops.

  15. The “and those things are also automatically uploaded” part kinda made me frown – does the 3DS upload any photo I take? Would be kinda surprising to me…

  16. That would be like Canon or Apple claiming copyright on all the pictures you take with their devices. Does Kodak own the copy right on all the film photos I ever took? What moron corporate stooge could possibly think the device MANUFACTURER is the owner of the pictures, not the person taking the photos?!?

  17. I trust that somebody will post details of which URLs or IP addresses to block on your home network. Still, terrible policy which has lost another customer here too.

  18. Also, anybody wanting to run homebrew software would also be running custom firmware without auto-updating.

    Ask Sony, they’re constantly trying to chase down piracy and other things they don’t like via firmware updates on the PSP.
    Hasn’t worked for them, 3DS won’t be any different. Just takes a little while for it to be cracked.

  19. We should then install upgrades in all “shop” demo 3DS’s, so they get turned into bricks XD

  20. In the US, it’s a federal crime to collect personally identifiable information about kids under 13 years old without their parents’ explicit, authenticated consent. And service providers know this. That’s why a lot of popular web sites formally forbid under-13s from making accounts.

    So clearly someone hasn’t thought something out here.

  21. Overall, I like my 3DS. Although I wish it would stop taking blood samples with the retractable needle set in the hand grip. I know the EULA said that by using the device Nintendo owns my DNA and all derivative products… but it’s hard to play Nintendog with all the constant pricking.

  22. Or… just don’t agree to the terms of service? Unless you have a real need to go on the web, you don’t actually have to agree.

  23. Having just read the agreement text on defective by design a lot of it seems like a paranoid interpretation. The photo license text looks like that of several websites – probably to allow them to use/modify photos without getting sued. I can easily imagine games being created that require the transfer and modification of photos to other users.

    As it stands, I’m more tempted to send tin-foil hats to defective by design than bricks to nintendo.

  24. Not THIS again.

    First of all, this was debated to hell and back when the 3DS came out.

    Second of all, the “updates” refers to streetpass and spotpass data, it does NOT refer to actual firmware updates. Not only are forced firmware updates of a battery-operated device incredibly stupid and dangerous, legally and from a PR standpoint they can’t do that.

    Same goes for bricking, the warning was mis-read, it basically means that they cannot guarantee that it will continue to work if you hack it, it does not mean they can brick it on purpose if you do.

  25. Step one: View the piece above where Lady Gaga (why is she famous?) demands copyright of all photos taken of her.

    Step two: Take photos of Lady Gaga with one of these.

    Step three: Sit back and enjoy the fight.

  26. I like how no one was on top of Facebook about this.

    They claim all rights to your info, and photos. And you Agree to consent when you make your account. They can use your data and photos however they like.

    I think if you can live with Facebook doing it (which is not as exciting as a match online with Dead or Alive: Dimensions), I think you can live with them taking a few 3-D photos to see how people are interacting with the 3-D effects.

    People like to look at the negatives, more than the positives. Rather than intruding into your life, maybe they’re seeing what updates they can do to make your experience better (Like Photo Channel 1.1 on Wii).

  27. Buy them all. Disagree with the “terms of service”. Return them for a full refund. Nintendo (or it’s distributors) will be forced to resell them as “recertified” and take a loss.

    Then…buy all the recertified ones, repeat the process above…

  28. This is the most hilarious piece of garbage article I have ever read, and what’s more hilarious? The public masses are falling for it. Talk about mind control. You try to blame things like game companies and corporations for wanting to steal your souls and identities when, in truth, it’s the media. Welcome to the real world, you’re all rats in a bigger experiment and you just found the cheese.

Comments are closed.