Nintendo Takes Heat for 3DS Bricking Policy, Rights to User Content

By  |  Tuesday, May 17, 2011 at 10:59 pm

A consumer advocacy group is giving Nintendo a hard time over the Nintendo 3DS’s terms of service, which allow the company to disable modded consoles and claims a license to all user-generated content.

Defective By Design, a campaign run by the Free Software Foundation, seeks donations in exchange for sending Nintendo a brick — symbolic of Nintendo’s ability to render devices useless.

I suppose the campaign has done its job, because I wasn’t aware of Nintendo’s 3DS terms of service until I read the coverage on BoingBoing and PC World. But while several sites reported on Nintendo’s anti-modding policy back in March, not much attention’s been given to the rights Nintendo claims on users’ activities, personal information and content.

Specifically, Nintendo retains a license to publish, modify and reproduce user content, which can include photos, movies, comments and messages. Nintendo may also share your personally-identifiable information with third parties, to be used for marketing purposes. In other words, anything you do on the Nintendo 3DS, Nintendo can use as it sees fit.

Now, the idea of a company claiming a license to user-generated content isn’t unique to Nintendo. YouTube, for instance, claims similar rights for videos uploaded to the service. So does the Instagram iPhone app. It’s not fair to single any company out, but the Nintendo 3DS is a bit sketchier than most services because it transmits data automatically. As far as I know, there’s no way to opt out, short of not connecting the 3DS to the Internet.

I doubt anything truly nefarious is happening here. Nintendo probably wants to make sure that it can repurpose user-generated content for marketing or promotional purposes, and even that may never happen. But the recent hoopla over iPhone location logging suggests that people are growing worried about what companies can do with users’ data, so it never hurts to point this stuff out. After all, no one actually dives into the EULA¬†when there’s a new gadget to play with.

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