Nintendo 3DS terms of service is more Brave New World than 1984

I get the feeling that most people won't bother to read up on what type of draconian things Nintendo has in its 3DS terms of service agreement. Even if they did, I doubt they would do anything about it. Why? Because they'd rather surf for pornography online, play Call of Duty: Black Ops, or watch American Idol...then they have to get ready for work/school the next day.

Even if people found the TOS to be deplorable, as I do, would that stop them from buying the handheld? Probably not. I mean, if I could afford it, I would still probably pick one up, and it's not like companies are going stop collecting data on their customers’ demographics for the purpose of targeted advertising anytime soon.

For that reason, I turn to this neat little comic that sums up what George Orwell predicted the future to look like in his novel 1984 versus what Aldous Huxley envisioned in Brave New World. I see parallels, and though the anti-digital-rights-mangement group (meaning they're opposed to technology that protects against copyright infringement by restricting media) Free Software Foundation have recently brought the TOS issue to the gaming world’s attention, is it enough to make a difference? My pessimism is telling me no and that Huxley’s prediction of a distracted, over-pleasured society is why.

What better imagery can we conjure up to show someone who is so passive and absorbed in sensory stimulation than a person holding the immersive Nintendo 3DS up to his face?

The Big (Brother) N knows what it’s doing; the company isn't stupid. In fact, it’s learning from other companies' mistakes and successes. Sony has been engaged in a constant battle against hackers and modders since first releasing its PlayStation Portable back in 2004. 3DS solution: make the firmware updates happen in the background and simply brick any system that does not comply. I'll concede that Nintendo has an arguable point in its need to do something about piracy, especially after the widespread levels of it for the DS generation. But maybe they should advertise that their portable console is available for lease rather than for purchase.

3DS Woman Nintendo also appears to be learning from the $50 billion social-networking site Facebook. The reason the online giant is valued for so much isn't necessarily because it has a great product. It's because the company has information on a significant percentage of the world’s (consumer) population -- who they are, what they're interested in, who they associate with, etc. It's a certified platinum mine considering every company that advertises some kind of product would probably like a look at that data. So I’m not surprised to read that Nintendo is trying to reserve its right to be in the background, quietly collecting information on every 3DS owner. Maybe it’s part of en effort to try and recoup some of its lost software sales from piracy in the last generation by making a killing off of targeted advertising in this one.

Average consumers don’t mind being a part of a market research pool by just being themselves and playing video games, do they? Well, if the masses aren't outraged over privatizing the Internet (via anti-net-neutrality legislation), the Patriot Act and its renewal, the TSA, etc. why would they object to this comparably minor intrusion on their rights as consumers? Or maybe they are against it but can't find time during their nightly net surfing and media absorbing to actually organize and do something about it.

Moving forward, I would not be surprised to see a similar TOS for Nintendo's upcoming Project Café console. Hell, I’d bet that every company who puts out online-connected devices is thinking of starting similar practices.

What can we do to stop it? I’m not sure if that’s possible, but these days it seems like the only surefire way to get people to talk about things like this is to frame it from a kiddie-porn angle. Based off of what I've read about the sexualization of the youth combined with their access to multimedia technology (translation: middle-school kids send racy pictures to each other via cell phones), it actually wouldn't be hard to sensationally leverage these allegations against Nintendo. If the company collects all of the information and media its users input and create, and kids take sexy 3D snapshots of themselves, then the suits at Nintendo will probably end up with copies, right? Uh-oh.

Nintendo 3DS

But even if someone brings about a lawsuit against the video-game maker for these practices, it would only be delaying the current trend of corporations consolidating and refining the way they study the market and advertise. But as long as we get cool gadgets like the 3DS, what’s the problem, right? With these shady TOS rules, Nintendo is proving that it wasn't slow to jump into the online space because it didn't get it; it was just waiting to develop a platform that could maximize profits, data collecting, ownership, and advertising potential.

Tags: Nintendo 3DS, Call of Duty: Black Ops

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Rob Savillo

May 19, 2011

I read Amusing Ourselves to Death (Neil Postman's book that the linked comic is based on) in college, and it's an analysis that I think everyone should read. He argues that the medium is the metaphor (rather than the message), i.e., that different mediums are more or less appropriate for different kinds of knowledge. The Orwell/Huxley dichotomy, if I remember correctly, was used to argue that television is not a suitable medium for meaningful political and social discussion.

But this issue goes further. This is where Lawrence Lessig's Code v2.0 comes in, where the lawyer and copyright activist argues that digitial mediums specifically give content producers increasing control over how we interact with our culture. Nintendo assumes perpetual copyright of any images stored on a 3DS, for example. And Nintendo is not without precedent: Look no further than Lady Gaga's attempt to do exactly the same for photos snapped at her concerts. Could Nikon, a camera manufacturer, institue a similar policy? We'd think that lunacy, wouldn't we?

The only solution to this kind of ownership creep from content producers is government regulation. Someone needs to step up and make the case that these policies, which are only now possible due to technology, are not within the public's interest, which is the primary purpose of copyright law (Article 1, Section 8, Clause 8 of the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.")

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Alejandro Quan-Madrid

man, I had no idea about the Lady Gaga thing. I agree, too, that government regulation seems like the logical response to this kind of infringement of consumers' rights. All it needs is a high-profile lawsuit to get the ball rolling.

J Campbell

This information give me pause. I will have to seriously consider if I want to give Nintendo my money when it engages in such reprehensible behavior. It also makes me angry. My 9 year old nephew plays his 3ds all the time and takes many pictures which Nintendo apparently owns. Nintendo was supposed to be the safe gaming option for kids. No longer, it seems.

Totally. Worse yet, one of the statements in the TOS says that children 13 and under are not suppose to put any personal information into the device or take pictures (I forget if it was in general or of themselves). Isn't that group one of their primary demographics and they don't want them to use the device as it was intended? How are the parents supposed to know that? Does Nintendo expect every parent to first read through the TOS before handing the device to their anxious kid?

Fernie Yanez

How can goverment regulation solve this problem? Simply don't buy a 3DS, don't go to Lady Gaga concerts ect. Don't support industries and performers that would try to pull these kinds of stunts.

But would that be enough to get them to stop doing things that aren't in the public and consumers' best interest? And what if all the major video-game console makers follow suit with simillar practices? should we just give up on our favorite hobby?

The industries already do things that aren't in our best intrests but we put up with them. Take DLC and downloadable games, you have access to them at present day and as long as you have access to the internet, but what's going to happen 10 years down the road to all the content you've been paying for? Who knows? But we put up with it because at present the business model is sustatinable and it isn't upsetting consumers.

If enough people get upset by the precedent nintendo is trying to lay down then people aren't going to use the feature or support the system, the free market will correct the behavior if it's a problem.

Governement regulation would definetely not be able to solve something as nuanced as this type of problem. What you would probably wind up with is an oppressive ban on new types of integration these companies are trying to make.