Nintendo Can Render Your Switch 2 'Permanently Unusable' If You Break Their Rules (betanews.com) 118
Slashdot reader BrianFagioli writes:
The new Nintendo Switch 2 is almost here. Next month, eager fans will finally be able to get their hands on the highly anticipated follow-up to the wildly popular hybrid console. But before you line up (or frantically refresh your browser for a preorder), you might want to read the fine print, because Nintendo might be able to kill your console.
Yes, really. That's not just speculation, folks. According to its newly updated user agreement, Nintendo has granted itself the right to make your Switch 2 "permanently unusable" if you break certain rules. Yes, the company might literally brick your device. Buried in the legalese is a clause that says if you try to bypass system protections, modify software, or mess with the console in a way that's not approved, Nintendo can take action. And that action could include completely disabling your system.
The exact wording makes it crystal clear: Nintendo may "render the Nintendo Account Services and/or the applicable Nintendo device permanently unusable in whole or in part...." [T]o be fair, this is probably targeted at people who reverse engineer the system or install unauthorized software — think piracy, modding, cheating, and the like. But the broad and vague nature of the language leaves a lot of room for interpretation. Who decides what qualifies as "unauthorized use"? Nintendo does.
Nintendo's verbiage says users must agree "without limitation" not to...
Yes, really. That's not just speculation, folks. According to its newly updated user agreement, Nintendo has granted itself the right to make your Switch 2 "permanently unusable" if you break certain rules. Yes, the company might literally brick your device. Buried in the legalese is a clause that says if you try to bypass system protections, modify software, or mess with the console in a way that's not approved, Nintendo can take action. And that action could include completely disabling your system.
The exact wording makes it crystal clear: Nintendo may "render the Nintendo Account Services and/or the applicable Nintendo device permanently unusable in whole or in part...." [T]o be fair, this is probably targeted at people who reverse engineer the system or install unauthorized software — think piracy, modding, cheating, and the like. But the broad and vague nature of the language leaves a lot of room for interpretation. Who decides what qualifies as "unauthorized use"? Nintendo does.
Nintendo's verbiage says users must agree "without limitation" not to...
- Publish, copy, modify, reverse engineer, lease, rent, decompile, disassemble, distribute, offer for sale, or create derivative works
- Obtain, install or use any unauthorized copies of Nintendo Account Services
- Exploit the Nintendo Account Services in any manner other than to use them in accordance with the applicable documentation and intended use [unless "otherwise expressly permitted by applicable law."]
- Bypass, modify, decrypt, defeat, tamper with, or otherwise circumvent any of the functions or protections... including through the use of any hardware or software that would cause the Nintendo Account Services to operate other than in accordance with its documentation and intended use
"...if you fail to comply with the foregoing restrictions Nintendo may render the Nintendo Account Services and/or the applicable Nintendo device permanently unusable in whole or in part."
Escalation in ToS (Score:5, Insightful)
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Are you SURE that device is actually your property and not just yours on an extended lease?
Re:Escalation in ToS (Score:4, Informative)
In this case it is by law pretty much everywhere because you bought a physical item.
The device and the software on the device are not the same thing, and I suspect you could get away with bricking it if in some jurisdictions if you could prove that people had copied your games with it, since just owning a circumvention device is often illegal.
Parts of this license are however clearly illegal (or at least unenforceable) even in the USA because they conflict with legal rights.
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In this case it is by law pretty much everywhere because you bought a physical item.
The device and the software on the device are not the same thing,
This, precisely. You might have purchased a physical item and do own it, but you absolutely were not granted ownership of the software running on the physical item. You were granted a license to use it. A license with terms and conditions. A license that can be revoked.
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I would have returned the item and demanded my money back
You breaking the license is not the problem of whoever sold you the item.
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The seller can have fun with the credit card company
Watch a chargeback not apply to purchases more than a few months ago. Better yet, watch you end up banned from video game store chains and hypermarket chains in your area.
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It is if we're talking about a minor who isn't supposed to understand a 140 page license.
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Re: Escalation in ToS (Score:2)
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That may not be enough. This is not "damage" as it is reversible.
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How do you know it is reversible? It could be blowing a software addressable fuse on the SOC that renders it unbootable afterwards.
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Exceptinally unlikely. This would cost more and is not needed to make things effective.
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A post with a solid fact near the top of a thread that is obviously prone to descend into hysterics.
And it gets down-voted. Welcome to /.
Re:Escalation in ToS (Score:5, Insightful)
Did someone say unauthorised repairs? I think I have heard that one before.
Doe - a deer, a Johny Deere...
Re:Escalation in ToS (Score:5, Interesting)
Indeed. Interestingly, the EU basically has this legislation in place. It is a bit indirect (consumers cannot sign away their rights and this may require syping illegal under the GDPR and "computer sabotage" is a crime with potential prison time), and AFAIK it has never been tested because nobody was stupid enough to try it in the EU, but chances are this would make Niontendo liable and result in personal (!) penalties for the decision makers. This could also run afoul of laws prohibiting planned obsolescence in the EU.
The US lawmakers really need to get their thumbs out of their asses and start looking at what civilized countries do to protect their citizens. There are a lot of things that can be copied and for many there are experiences as to whether they work well and what the effects are. There really is not reason to stay in the dark ages of "fuck the consumer".
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US lawmakers need to do more to protect consumer rights and privacy.
But where's the money in that?
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Re:Escalation in ToS (Score:4)
It's been going on in the EU for years. Microsoft and Sony will both damage your console if you break certain rules, permanently banning it from online services. Not just your account or you personally, the actual console. Given that these days online is often essential to the game, and many game purchases are online only, the console is basically useless and worthless afterwards.
There is no appeal process. And of course they do make mistakes.
I have heard that some people have been able to return their consoles to the retailers in the UK, but only Reddit posts so no idea if it is true or not. Legally it is a grey area because it hasn't been tested. People were able to partial or full refunds on the PS3 when Sony removed Linux support via a mandatory (to keep playing games) update, but that's a bit different. If someone did go to court it would be against the retailer, as the consumer rights make them responsible for the product, and they would have a very hard time getting Sony to assist them with detailed evidence to back up the console ban. But then again, the consumer might find it difficult to provide any evidence that they were innocent. It would probably come down to the judge and how much effort the retailer made to defend.
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Refusing online service is different. So, no, this has _not_ "been going on in the EU for years". Details matter.
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The argument is that the console is basically a brick without the online service, and any games that require online to work, even single player or due to DRM, stop working.
As an example, Nintendo's new console supports cartridges, but all they do is tell the console to download the game. They don't have any game data on them. Other consoles have been that way for a while too, with discs being little more than a key. Once blocked from those online downloads, the console is useless. At best it might continue
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Most 3rd-party Switch 2 games are Game-Key Cards (Score:2)
There will be plenty of legit carts with full games on them
Reports differ. "Most third-party Nintendo Switch 2 games are Game-Key cards" by Michael Freeman [xda-developers.com] claims that all third-party Switch 2-only physical launch titles other than CD Projekt's Cyberpunk 2077 are Game-Key Cards, citing a post on X by Gematsu [twitter.com]. "Nintendo Switch 2 Editions", or games compatible with both Switch and Switch 2, are less likely to be GKCs.
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Well, maybe. Or not. But the thing is this an indirect disable like this is much more fuzzy than a direct, intentional and announced disable. The second one does not require a proof of intent, as that one is obvious.
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I suppose the other aspect is that "we can terminate the service with no refund for any reason we like, no appeals" is likely to be considered unfair under contract law in many EU countries.
There are GDPR issues too as the evidence for the decision to ban would be subject to access requests, and if automated to the right to explanation or human review.
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Refusing online service is different.
You're forgetting the Xbox Series S is a thing. If you manage to get the console banned, it essentially does become useless.
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Yes. But legally that "essentially" does require a court decision to establish it. A direct statement of "we will disable" in the TOS does not.
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Microsoft's policy [xbox.com] actually is very similar to Nintendo's.
It actually has been standard industry practice to render a gaming console useless as punishment for modding/repeated severe rule violations, for nearly as long as the manufacturers have had the capability to do so. This really just seems to be Nintendo spelling out in plain English something that was already policy, just buried deep in some click-through nobody bothers reading.
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The US lawmakers really need to get their thumbs out of their asses
In this case they actually don't. There's plenty of case law saying you can't remotely brick a device due to what the customer does with it. The thing is, companies can write what they want in their EULA. The proof of the pudding is in the eating (yes I know most people get this proverb wrong), which in this case means Nintendo can write what they want, but they will get FUCKED UP by the a judge if they end up in court to argue over this. /EULA: By replying to this post you agree to name your first born chi
Re:Escalation in ToS (Score:4, Informative)
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Just don't connect your devices.
make sure to give them more money though (Score:2, Insightful)
Nintendo has been user hostile all along.
Prohibiting reverse engineering under any circumstances is illegal as it conflicts with the DMCA.
If you give them money, you're an asshole. If you can't stand up to your kids demanding you do so you're also a weakling.
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Yep. I recently looked into buying a Switch and then decided that me giving money to Nintendo is not going to happen.
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If you can't stand up to your kids demanding you do so you're also a weakling.
To be fair though, what are the other options? Give your kids a PC and hope you've locked it down well enough that they're not playing M-rated games and watching porn? Sony's console is out of the running - they're the company that'd previously bundled literal rootkits with their content, ostensibly to protect their IP. That leaves Microsoft, a company also well known for its monopolistic and user-hostile behaviors. Plus, they'll also ban your console if you break the TOS, just like Nintendo.
Practicing
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That leaves Microsoft, a company also well known for its monopolistic and user-hostile behaviors
Somehow they are least worst in consoles, unless you count Steam Deck I guess. Which now I think of it, I guess is at least close to reasonable. You can password it and lock it into gaming mode.
Re: make sure to give them more money though (Score:2)
To be fair though, what are the other options?
I struggle to understand the question. The first Nintendo Switch was released in 2017. People were just fine before that. Maybe you could formulate the question in a more precise way? The options to do what?
They have altered the deal. (Score:2)
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Pray they don't alter it any further. Seriously though, this is pretty fucked up. Can somebody point to any other instance of a consumer level device that can be "rendered unusable" at a whim like this?
Windows updates.
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You do realize there are many car models on the road today that can be bricked by their manufacturers (or hackers thereof), right?
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>"Teslas"
Sorry, you will have to provide evidence that Tesla is doing that. And, how it is different than other car manufacturers, if you are plying that Teslas are somehow different. Most modern vehicles have telemetry, licenses, remote connection, service contracts, remote control, etc.
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Tesla Cybertruck bricked after car wash
That's just shoddy manufacturing, something Ford has a significant amount of prior art at.
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Cars.
There are a number of cases where a car chase has been stopped by the car maker disabling the vehicle, even though it was without the owner's consent.
Re: They have altered the deal. (Score:3)
Hezbollah Pagers.
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Yes, every smart TV. One little update and all your smarts are gone, including the TV part. Isn't 'always online' fun?
Probably a criminal act in the EU (Score:4, Interesting)
The first thing is that they have no right and would have to replace the value, probably including the value of all the games you have. But the second is that this very likely could count as "sabotage of an IT system" and that comes with potential prison times. No, you cannot cover something like that via a click-through liense (or any kind of contract with a private individual, really) in the EU, because that is an one-sided advantage and these happen to be illegal and invalid in contracts with private individuals. Incidentally, the spying needed to enforce something like this is very likely a violation of the GDPR and hence illegal as well. And there individuals cannot sign their rights away either in the EU.
Hence I expect that will be done in the "fuck the consumer" countries (most notably the US) only.
Re: Probably a criminal act in the EU (Score:2)
I am not a lawyer, but it sure seems like this would likely run afoul of many US state laws as well.
Re:Probably a criminal act in the EU (Score:5, Informative)
This section can only be found in the US TOS. They don’t assert this right in the EU version.
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Interesting. And not unexpected at all. Thanks!
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This section can only be found in the US TOS. They don’t assert this right in the EU version.
Yeah but it won't pass master in the USA either. They can't remotely brick your physical device for something explicitly permitted by law (you're free to hack your device how you want).
They are however allowed to ban you from their online services.
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Here's a question I was thinking though, is it criminal in the EU to have it in the TOS and/or say you'll do it and there's nothing technically illegal until they actually brick someone's device?
I'd say it's a line of freedom of speech but also it's a type of contract so it would also be illegal to have users sign a thing that says "we can do crime to you" like the iPad South Park episode (at least without a more formal agreement).
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That would be for the courts to decide. It could invalidate the full TOS, for example. It could even be criminal, as threatening people with something illegal can be criminal under some conditions. But apparently, the EU version does not have this in its TOS as somebody else here remarked. Which is absolutely no surprise.
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john deer will find a way
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I work in cybersecurity and I can assure you this is already possible for many devices, particularly and alarmingly many of the online hospital equipment you will see in any hospital. Anything with a microprocessor that can be remote upgraded is susceptible.
A toy is the least of your worries.
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I work in cybersecurity and I can assure you this is already possible for many devices, particularly and alarmingly many of the online hospital equipment you will see in any hospital. Anything with a microprocessor that can be remote upgraded is susceptible.
A toy is the least of your worries.
We kill grandma, unless you pay us an extra $500 a month monitoring fee?
Re: Any grownups around here? (Score:2)
You're surely aware that grownups happen to have kids, aren't you?
missing phrase (Score:5, Insightful)
They list any number of "grounds" to brick your device forever but the left out the key phrase "OR if we think you might have".
You don't actually have to do any of those things, you just have to be the innocent victim of a DRM malfunction of someone's typo.
Just get a Steamdeck instead (Score:2)
Same form factor, runs on Linux, you do whatever you want with the hardware, including installing a different OS if you want.
Plus it's got way more games (comes with Steam pre installed).
Even though some Steam games don't run on Linux yet, the ones that do are plenty.
guess we're never buying that then (Score:1)
legalising corporate crime is a pretty fucking stupid policy and we shouldn't be allowing it
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And yet we not only elected a president who is a convicted felon, his party which calls itself the responsible adults in the room lets him do pretty much whatever he wants.
So how are you going to avoid buying that?
Behold the flaming Switch! (Score:2)
Change in terms (Score:2)
Once again, laws required (Score:2)
Cut off service, sure... if there's an ongoing subscription fee. Brick a physical device I BOUGHT, never. Cut off service that was promised when I BOUGHT the device... your company better have gone out of business.
Severance of service should come with a legal requirement to provide an offline option. You kill your server, you should have to give me the ability to run my own server and connect my device to it.
Companies literally should not have a legal option to do this kind of thing to people.
Even the Wii could do that (Score:2)
But nintendo never openly said they can do it. nor did microsoft or sony.
It's a black box that obey an remote server.
Sending an death update for a specific user is quite possible, and you can even do shit like blowing all the e-fuses and programming the firmware to just give a "you screwed up" message when this happens.
In the olympics of... (Score:2)
...the worst tech companies on the planet, Nintendo and Apple are in a close race for gold
small charge (Score:2)
Next gen nintendo will contain a small explosive charge that can be detonated if you don't follow rules.
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They'll probably require the charge be implanted in your neck...
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All consoles since the PS3 i think have e-fuses, that are basically one step away from this.
The "normal" usage of the e-fuses is to stop you from downgrading the firmware, as each firmware has an requirement for X number of e-fuses to not be blown.
But i imagine it is trivial to burn all the e-fuses of the system and make it incompatible with any firmware but one that mocks you and run no games.
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and Lemon laws kick in if they have to meany updates and your day one device can't be updated any more.
BS (Score:2)
Most terms and conditions contain some illegal stuff. They are just written to discourage users from seeking justice.
Nintendo Should Dispose of the eWaste! (Score:2)
Huh? (Score:1)
Go fund me (Score:2)
I'm not going to try hacking first but will after someone else figures it out and willing to donate to known hackers.
slight correction (Score:2)
Buried in the legalese is a clause that says if Nintendo thinks that you try to bypass system protections, modify software, or mess with the console in a way that's not approved, ...
What sort of burden of proof does Nintendo have to meet to brick your gear?