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Hello, and welcome to Virtual Legality.
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I'm your host, Richard Hoag, managing member of
the Hoag Law business law firm of Northville,
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Michigan.
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And that means as a business law firm that I
draft end user license agreements, software
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licenses, and website terms of service
regularly as a day job.
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And I have a lot of thoughts about this story
that you can see on your screen from game file
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of Steven Totillo and what it means for
Nintendo owners or what they think are owners
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of the new Switch two system in particular.
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Now this article reads as a headline, Nintendo
warns it may brick Switch systems, meaning it
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can make them inoperable, whose users bypass,
modify, decrypt, defeat, tamper with their
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games and services.
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And this was the first time I saw this story
discussed.
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It says it was 05/08/2025.
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It also says this is a paid article, and I
wanna disclaim that Steven Totillo is one of my
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favorite writers working in the video game
space right now.
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And so I do pay for his substack, but I wanna
disclaim that because this is paid content.
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He says he received an email at 11:39PM that
had the subject line updates to Nintendo
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account user agreement and Nintendo privacy
policy.
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And if you're in any kind of video gaming or
any kind of other software customer, you know
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that you get these emails from time to time.
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Because the licenses that you agree to when you
use software all have within them a provision
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that says, we as the software provider can
change these terms of service at any time.
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But when they do change them, they give you a
notice like the one listed in this email, and
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he says in response to that email, it's a good
thing I looked.
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Most of the changes, just over a 100 edits by
my account, were made to the Nintendo account
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user agreement, a digital document that people
click on in order to use online connected
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Nintendo services.
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That's another aspect of this story that we're
gonna discuss a little bit further on in this
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video, But an important thing to note here is
that most of these companies, Nintendo,
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Microsoft, Sony, anybody else that you might be
playing video games through, have a number of
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different interlocked nested together
agreements.
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Some of which are for the platform, some of
which are for the hardware operating system,
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some of which are for the content or account
services as we see described here.
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Now Nintendo actually tries to flatten that
ecosystem of documents down to mostly one that
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you have to interact with as a customer, and
that has a lot of benefits.
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You don't have to read a number of different
documents, but it also has a lot of downsides
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because there's a lot of conflated ideas in the
Nintendo document that may or may not apply in
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the very nefarious ways that some are reading
into it.
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So with that said, I wanna highlight what
Steven Totillo identifies as one of the biggest
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items here.
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The most strongly worded change from Nintendo
amid their swath of updates is a major
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expansion of the company's long standing
warning to the gamers it seems most frustrated
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with these days.
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Those who hack or modify its console and games,
run emulators, and in Nintendo's assessment,
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foment piracy.
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Nintendo's old user agreement, effective since
April 2021, said, you are not allowed to lease,
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rent, sublicense, publish, copy, modify, adapt,
translate, reverse engineer, decompile, or
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disassemble all or any portion of the Nintendo
account services without Nintendo's written
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consent or unless otherwise expressly permitted
by applicable law.
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Here's the new, way more intense version
complete with the potential punishment of your
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Switch being bricked by Nintendo.
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Without limitation, you agree that you may not
publish, copy, modify, reverse, engineer,
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lease, rent, decompile, disassemble,
distribute, offer for sale, or create
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derivative works of any portion of the Nintendo
account services.
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Now one thing I do note as a lawyer here is
that there are a number of ways to write
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provisions like this, and the first thing that
I see here is that the new lawyer working on
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this version of the license agreement is
clearly the kind of lawyer that likes to list
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out every possible thing that they can think
of.
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If you've never worked with a lawyer before,
you should know that lawyers, especially
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business lawyers, are primarily in the business
of trying to figure out ways in which the
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company that they are representing could be
harmed in the future by not including something
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in the contract in front of them.
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So a type of lawyer looks at this and says,
it's better to pack something and not need it
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than need it and not pack it.
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Imagining a future lawsuit or court that would
say, hey, you know how to write these words on
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the page, and you only said decompile and
disassemble.
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You didn't say anything about distributing or
offering for sale or creating derivative works,
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etcetera.
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And so various lawyers in corporations, working
for corporations in outside firm capacities
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like I do at Hoag Law or elsewise will have
different kind of risk aversion levels and know
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their clients and what they want in their
documents a little bit better.
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But it does mean that language can change that
really doesn't change the substance of the
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provision.
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So here we've got a few new entries.
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I've highlighted them in yellow, but it doesn't
actually change much of what we're talking
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about here.
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Nintendo always reserved all the rights
afforded to them under copyright law, which
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includes the right to prevent derivative works,
includes the right to prevent distribution they
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don't like, etcetera, etcetera.
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They're just listing them out more specifically
here because the lawyer, whoever's in the room
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here drafting this version of the document,
likes to list things out more specifically.
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Next, we see a reference to bypassing,
modifying, decrypting, defeating, tampering
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with, or otherwise circumventing, keep a note
on that word circumvent, any of the functions
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or protections of the Nintendo account
services, including through the use of any
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hardware or software that would cause the
Nintendo account services to operate other than
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in accordance with its documentation and
intended use.
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So this is aimed at what Steven Totillo
identified earlier, which is things that are
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gonna break the way a Nintendo device functions
through a reference to the account services
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specifically.
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The next item is you can't obtain, install, or
use any unauthorized copies of Nintendo account
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services.
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The services specifically, but that does
include video games in the concept, or exploit
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the Nintendo account services in any manner
other than to use them in accordance with the
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applicable documentation and intended use in
each case.
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Now that's a lot of words.
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Right?
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That's a lot of lawyer drafting there.
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But ultimately, in my view, that is almost
entirely covered by what was already in the
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Nintendo old user agreement in April of twenty
twenty one.
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Now that said, they did add a bit of language
here that I think has gotten everybody a little
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concerned about what they're purchasing with
the Nintendo Switch, and that is that Nintendo
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added language that said, you acknowledge that
if you fail to comply with the foregoing
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restrictions, Nintendo may render the Nintendo
account services and or the applicable Nintendo
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device permanently unusable in whole or in
part.
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Now this is one of those areas where I think
Nintendo trying to conflate things like the
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operating system license with the video game
license and the account services concept is a
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thing that makes it a little bit harder to
read, not just for the layman, not just for
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anybody that's not been to law school that just
bought a Nintendo Switch, but also for the
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lawyers.
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Because the best reading of this to me, what
Nintendo seems to be aimed at here is that we
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can turn off your ability to use the Nintendo
account services, what you purchased through
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the eShop, and those kinds of things, and not
necessarily brick your console, but it's not
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clear here, And bricking here would mean the
disabling of the operating system.
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Understanding that when you purchase a Switch
two or any other piece of technology in 2025,
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what you are most likely purchasing is a bit of
hardware in the real world, the chips, the
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actual box that you are putting under your TV,
the dock that you're putting it in in the case
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of a Switch, and the software that actually
runs that hardware.
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Right?
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If Nintendo bricks it, it doesn't mean that
they run into your house and steal your Switch.
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It just means that they steal the functionality
of the Switch, and that's the same effect for
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you and me.
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But it does mean that they are talking about
software when they're talking about bricking
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something, not lighting your system on fire.
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So when we talk about these things, it's
important to note here that we're talking about
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a combined system of hardware and software
acting together.
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And what Nintendo is basically claiming
Dominion over is its software.
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That because you have to connect online to use
the Nintendo account services anyway and
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probably to operate your Switch in most cases
that you're gonna operate it on in 2025.
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Nintendo reserves the right to say if you do
very bad things that we don't like, we can say
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your operating system doesn't work, which means
your Switch doesn't work.
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That's not great.
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I'm not gonna sit here and tell you that you
should be happy about these technology
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companies having the ability to do that, but I
wanna get into this more fulsomely so that we
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can better understand what the current
ecosystem of video game devices is in any event
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and what this language actually means.
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The other thing I would add from a purely
lawyer to lawyer term of art here is that I
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don't think you acknowledge is actually the
right way to describe this because you can
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acknowledge all sorts of things that aren't
true.
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So Nintendo saying, you acknowledge that if you
fail to comply, we can brick your system,
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maybe, is probably not as useful as a bit of
language that I like to put in my agreements,
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which is user acknowledges and agrees, or you
acknowledge and agree that we can do these
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things.
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That gives the party the right to actually do
those things.
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You acknowledge that we can do this doesn't
actually put that legal right in play.
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That's angels on the head of a pin.
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That's very legal easy, so don't worry about
that too much.
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But I did wanna state that this language is not
language that I love here, and that's because
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it can't itself create a new right outside of
the law just with this provision even though
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contracts in general are putting forth rights
and obligations that either side has.
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And you could write this in a way that maybe is
a little bit more protective of Nintendo if
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they decided to do that in the future.
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But with that said, I did wanna point out that
Steven Totillo, who I again think is an
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excellent journalist in this space, doesn't
just say, wow.
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That's a horrible thing that Nintendo can do.
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It says not he says not that surprising, of
course.
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We're just seeing Nintendo's recent legal
energy funneled into its user agreement.
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So he's taking this with the kind of sober
approach that I expect from him at this point
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in time saying, okay.
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There's a lot of legalese here, and it doesn't
look great, and we should note it.
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I'm writing an article about it after all, but
it maybe isn't the end of the world.
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But not everybody takes that exact tack, and
we'll see that when we get to the response
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section of this video.
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The other thing I wanted to point out is
looking at this document, there's a lot going
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on here that maybe is not something that people
are talking about as much as they maybe should
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be.
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One thing Steven Tutillo does note in his
article is that they have added this concept in
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at the beginning of their document that says,
your parent or legal guardian agrees to the
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Nintendo account user agreement if you're a
child and you otherwise click through to use
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your Nintendo Switch to play Mario Kart world.
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And one thing I note here as a top line item is
that this does appear to be Nintendo being very
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aggressive in their documentation because in
most cases, this language isn't gonna work.
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Right?
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And there's nothing preventing anybody in any
space, in any user license agreement, in any
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other context from putting things in the
contract that a court is not gonna uphold.
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It's maybe not a great idea, but you're trying
to signal to people of what you're trying to
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achieve.
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And this case is one where Nintendo got burned
by the fact that kids had agreed to certain
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terms.
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It when with respect to the Joy Cons, I
believe, on the Switch one system.
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And some court said, well, that's not the
adults that agreed to those terms, those
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limitations on the ability to sue, for
instance.
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And so Nintendo is trying to cover that by
saying, hey, kids, don't sign this if you're
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under age 18, but if you do, your parents or
legal guardians are on the hook.
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That probably doesn't work in contract law
because you can't just grab someone else that's
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not a party and say you're now a party to this
document.
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Things get a little bit confusing with respect
to guardians and kids because you do have
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certain responsibilities as a parent or
guardian for the actions of your children in
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The United States and in other jurisdictions
laws.
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So this is probably a gray area, but it does at
least speak to the fact that Nintendo is trying
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to be aggressive, doesn't necessarily care
whether or not this is fully enforceable as
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much as it cares about signaling that it wants
it to be read this way, and that if you are a
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parent or legal guardian, you should be
concerned and you should be wary of what your
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child is doing so that we don't have to have
this fight in court again in the future.
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Now importantly, this document, as mister
Tortillo said, says it governs your use of the
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Nintendo account services through your Nintendo
account.
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And in definitions, it establishes the Nintendo
account services including, for example, video
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games as well as any other Nintendo products
that require the use of a Nintendo account are
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all included in this definition.
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So they're grabbing things you buy from the
eShop.
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They're grabbing your Switch and your Switch
two when they're discussing what they can do
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under this license.
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You acknowledge again that if you fail to
comply with the foregoing restrictions,
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Nintendo may render the Nintendo account
services and or the applicable Nintendo device
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permanently unusable in whole or in part.
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Now I think in all likelihood, that's best read
to mean that we'll shut down your access to the
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Nintendo online services, the eShop, and what
have you rather than bricking the whole system
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because that would have all sorts of public
relations ramifications that Nintendo probably
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doesn't want at this point in time, but I can't
guarantee that.
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Nobody can really guarantee that for you until
Nintendo decides to do anything with this
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language.
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But, again, based on all the other inclusions,
including what we just talked about at the top
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and the additional language in this section,
this appears to be a document written by a
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lawyer that's trying to describe every possible
thing that could happen in the future and wants
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Nintendo to have the armament that it thinks
that they would need in the case that something
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like this happened even if they didn't intend
to use it.
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Right?
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One thing that other people should note about
these documents, there's a lot of landmines in
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these things.
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There's a lot of things that companies
otherwise reserve the right to do that in all
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likelihood they wouldn't want to do because it
would have all those negative public relations
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ramifications.
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It wouldn't be a great market idea to do very
bad thing x, y, or z, but they have them in
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these documents because some lawyer somewhere
said, you're gonna regret it if you don't have
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this bit of language somewhere in the future.
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And the people in the room said, okay.
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We'll go with that.
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That's always a push and pull with businesses
and lawyers.
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Lawyers always are looking for every possible
bad thing that could happen and saying, you
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should put this language in or else you're
gonna get burned in the future.
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Lawyers develop that kind of muscle memory
because they're worried about being sued for
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malpractice for the company flipping around on
them in the future and saying you never told us
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this could have happened, and your failure to
do so is malpractice and all these various
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things that are bad things about the way that
this whole process works.
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But that's how this language gets in there, and
I don't believe there's any strong intent by
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Nintendo to actually start bricking systems out
there in the market because I can imagine that
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would have a very negative ramification on the
way they actually operate their service.
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That said, there's a bit more in here that is
mostly the same as it was in the earlier
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version of this document, but is important for
understanding what's happening here.
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Breach and termination of the agreement,
section 13.
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Nintendo may terminate this agreement or
suspend your access to any or all Nintendo
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account services in our sole discretion and
without prior notice to you if you violate this
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agreement.
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00:15:18,345 --> 00:15:21,944
Now important to note here is that this doesn't
require a separate lawsuit.
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Right?
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00:15:22,184 --> 00:15:25,544
The only people that are deciding whether you
violated this agreement for this provision to
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take place for Nintendo to have these rights is
Nintendo itself.
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And this is a way that people should be
concerned about end user license agreements in
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general, which is to say, we've got all sorts
of court protections and things that I can talk
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about in virtual legality or elsewise that talk
about companies that have to go through a
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process before they can do very bad thing to
you.
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Contracts are different.
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Contracts, you're agreeing to the bounds of
what each party can do in any given
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circumstances.
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00:15:53,355 --> 00:15:58,075
Here, it says Nintendo can do these things if
you violate this agreement, but doesn't say if
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a court finds that you violated this agreement.
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00:15:59,754 --> 00:16:01,195
It just says if you violate this agreement.
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00:16:01,480 --> 00:16:06,440
And by its terms, that means if we at Nintendo
decide that you violated the agreement.
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Or as they say further on, if we have a
reasonable belief that such a violation has or
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will occur, we just think you're a bad guy and
we think you're gonna steal our stuff.
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Or as we otherwise determine to be reasonably
necessary for legal, technical, or commercial
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reasons.
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Right?
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Not legal reasons.
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00:16:23,485 --> 00:16:28,605
If we think that it's a bad idea commercially
for you to have access to your Switch account,
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then we can cut it off.
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And that's worth noting.
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One of the reasons I made virtual reality in
the first place was for people to take better
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note of what's in the contracts that they're
signing so that they can understand what the
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playing field is in the future on any and all
things related to video gaming or otherwise
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things that they are interested in.
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Now to some extent, people read what they wanna
read and they see the parade of horribles and
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00:16:52,334 --> 00:16:54,894
say all these corporations are evil, etcetera.
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00:16:54,975 --> 00:17:00,149
But what I wanna point out is that these things
are baked in, and I want people to be aware of
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what they're signing so that they can make
better purchasing decisions on what they want
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to enter into and what they don't.
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00:17:05,750 --> 00:17:09,509
It's a big amount of trust that these companies
demand.
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When I sit here in virtual reality and say
they're unlikely to use these for any of the
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very bad reasons, some companies will.
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00:17:15,724 --> 00:17:19,244
And they will develop a reputation that says, I
don't wanna enter into a user license agreement
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with them for those reasons.
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00:17:20,524 --> 00:17:25,404
But it's important to note these things because
this is the kind of language that leads to the
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00:17:25,404 --> 00:17:29,565
provision up above that says, you acknowledge
that we can brick your system.
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So that's the state of play here.
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00:17:32,139 --> 00:17:37,819
I did also pull up the earlier document just to
point out that this is an area where Nintendo
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00:17:37,819 --> 00:17:39,419
is changing things a little bit.
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00:17:39,419 --> 00:17:43,419
You'll see that they elevated things that they
care about in this earlier version in respect
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00:17:43,419 --> 00:17:44,700
of individual arbitration.
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00:17:45,015 --> 00:17:50,295
That's again another lawyer thing that you do
in a license agreement is to elevate the stuff
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00:17:50,295 --> 00:17:54,134
that you really wanna make sure is enforceable
because some courts will look at a license
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00:17:54,134 --> 00:17:58,869
agreement like this and say if it's in the
middle somewhere and it's important, then we're
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00:17:58,869 --> 00:18:02,710
not gonna necessarily hold the other party to
it because they didn't have an ability to
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00:18:02,710 --> 00:18:06,470
negotiate this contract, and they didn't know
what they were signing away.
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00:18:06,549 --> 00:18:11,589
This is the you can't put in you've sold your
firstborn child in the middle of the document.
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00:18:11,590 --> 00:18:15,164
The court's not gonna enforce that anyway, but
it's certainly not gonna enforce it if you
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00:18:15,164 --> 00:18:19,964
don't highlight that that's actually in the
document itself because nobody really expects
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00:18:19,964 --> 00:18:23,164
the normal consumer to go through every word of
these things.
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00:18:23,164 --> 00:18:26,605
And that's its own problem in the law, and we
could certainly talk about that on another
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00:18:26,605 --> 00:18:26,845
video.
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00:18:27,140 --> 00:18:31,700
But that's the state of play with respect to
the Nintendo Switch, and then came the
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00:18:31,700 --> 00:18:32,420
response.
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00:18:32,900 --> 00:18:35,380
So here's the IGN article.
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00:18:35,380 --> 00:18:39,539
Nintendo revises user agreement, and if you
break it, Nintendo reserves the right to brick
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00:18:39,539 --> 00:18:40,019
your Switch.
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00:18:40,615 --> 00:18:41,894
That's IGN's headline.
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00:18:41,894 --> 00:18:46,855
I think that's mostly a good headline that is
identifying what is being stated here even
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00:18:46,855 --> 00:18:52,454
though we don't 100% know that Nintendo is
claiming the right to brick the Switch as much
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00:18:52,454 --> 00:18:56,029
as it is to cut off your access to the Nintendo
service portal.
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00:18:56,029 --> 00:18:57,309
We have other headlines.
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00:18:57,309 --> 00:18:59,150
Who really owns your Switch too?
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00:18:59,549 --> 00:19:03,950
It's a me, suggests Nintendo, which I thought
was amusing, so I highlighted here.
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00:19:03,950 --> 00:19:08,190
Nintendo can brick your Switch and skirt
lawsuits in outrageous end user license
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00:19:08,190 --> 00:19:10,765
agreement update from hot hardwire.
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00:19:10,924 --> 00:19:13,484
And I think that is, again, the important
aspect of this.
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00:19:13,484 --> 00:19:18,445
This is obviously a headline designed to be
incendiary, but, again, the the concern if you
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00:19:18,445 --> 00:19:22,125
have one with respect to end user license
agreements on the whole, and certainly this one
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00:19:22,125 --> 00:19:27,119
if this popped up on your feed or you're
otherwise seeing news items about it, is that
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00:19:27,119 --> 00:19:30,640
Nintendo doesn't have to go through a court to
turn your system off.
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00:19:30,640 --> 00:19:31,759
Nintendo doesn't have to.
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00:19:31,759 --> 00:19:37,279
It just has to claim that it sees something at
issue with you potentially violating the terms
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00:19:37,279 --> 00:19:42,085
of the agreement or becoming a commercial
liability to them in some way, and then they
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00:19:42,085 --> 00:19:43,924
can turn your system access off.
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00:19:44,164 --> 00:19:48,644
GameSpot had the most incendiary version of
this, and I thought that this was really not a
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00:19:48,644 --> 00:19:49,845
great way to put this headline out.
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00:19:50,179 --> 00:19:54,019
According to Nintendo's end user license
agreement, you won't actually own your Switch
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00:19:54,019 --> 00:19:58,500
two, and this has been jumped on in various
places on the Internet, and I still see it in
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00:19:58,500 --> 00:19:59,859
the last week or two.
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00:19:59,859 --> 00:20:01,779
And a full disclaimer, I'm a Switch two owner.
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00:20:01,779 --> 00:20:05,924
I love the Switch two, And so you can take my
words on that with a grain of salt.
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00:20:05,924 --> 00:20:10,404
I suppose I obviously thought the license
agreement was fine enough for me to purchase
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00:20:10,404 --> 00:20:11,765
this particular console.
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00:20:11,924 --> 00:20:13,605
But GameSpot goes out with news like this.
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00:20:13,605 --> 00:20:15,924
This gets repeated in various places on the
Internet.
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00:20:15,924 --> 00:20:20,289
And one of the reasons you're seeing this video
today because I wanna talk to you all about
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00:20:20,289 --> 00:20:24,529
what Nintendo has the rights to do and what
they don't have the rights to do even in the
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00:20:24,529 --> 00:20:25,650
contract terms they have.
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00:20:25,650 --> 00:20:30,825
So first and foremost, I wanna point out again
that what you're buying when you buy a Switch
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00:20:30,825 --> 00:20:36,345
two, when you buy a PlayStation, when you buy
an Xbox, when you buy an MRI scanner, you know,
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00:20:36,345 --> 00:20:41,144
any other piece of technology in the world is
that you are buying a piece of hardware and
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00:20:41,144 --> 00:20:43,349
software operating together.
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00:20:43,430 --> 00:20:47,109
And when we talk about software, the contracts
that were are at issue here, we're talking
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00:20:47,109 --> 00:20:49,509
primarily about copyright.
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00:20:49,670 --> 00:20:56,085
So you make code and that operates your system,
your hardware, and that code is copyrighted.
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00:20:56,085 --> 00:21:01,045
It's protected in the nature of what it is as a
creative work rather than patented, which is
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00:21:01,045 --> 00:21:05,605
undoubtedly what is covering the hardware that
Nintendo actually sells you in the box when you
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00:21:05,605 --> 00:21:07,285
go to the Walmart or the Target or what have
you.
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00:21:07,740 --> 00:21:13,900
Copyright protects the software, and copyright
infringement law is what's going to govern the
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00:21:13,900 --> 00:21:17,420
way that the end user license agreement is read
by a court system.
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00:21:17,420 --> 00:21:22,539
Now that's important because one of the things
that pops in to cover copyright in The United
349
00:21:22,539 --> 00:21:28,904
States is the Digital Millennium Copyright Act
or the DMCA, which you see most often
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00:21:28,904 --> 00:21:32,984
referenced on the Internet with respect to
takedown notices and things to YouTube and the
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00:21:32,984 --> 00:21:33,544
like.
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00:21:33,705 --> 00:21:38,700
But it has one important provision that's
really key to understanding this issue as it
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00:21:38,700 --> 00:21:42,779
pertains to Nintendo and anything else that you
might buy into in the video game space.
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00:21:42,940 --> 00:21:48,059
That is the notion that the circumvention of
copyright protection systems is itself
355
00:21:48,059 --> 00:21:48,779
outlawed.
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00:21:49,394 --> 00:21:53,154
Mostly when we talk about copyright
infringement, we're talking about stealing a
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00:21:53,154 --> 00:21:58,194
picture of Mario and putting it in your own
work in some way that Nintendo wouldn't like,
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00:21:58,275 --> 00:22:02,195
and that's you using their intellectual
property in a way that's unlicensed, and that's
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00:22:02,195 --> 00:22:02,674
infringement.
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00:22:02,920 --> 00:22:04,359
This is something different.
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00:22:04,680 --> 00:22:09,559
This says no person shall circumvent, and I
told you to put a pin in that word that they
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00:22:09,559 --> 00:22:13,720
put into their end user license agreement this
time, a technological measure that effectively
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00:22:13,720 --> 00:22:16,119
controls access to a work protected under this
title.
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00:22:16,674 --> 00:22:22,434
And this provides an entire other avenue for
these companies to try to protect their
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00:22:22,434 --> 00:22:24,195
software to say, okay.
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00:22:24,195 --> 00:22:28,195
If we're protecting it through some kind of
hardware or other mechanism, then if you
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00:22:28,195 --> 00:22:33,960
circumvent that, we have our own independent
right of action to sue you for infringement.
368
00:22:34,200 --> 00:22:38,359
And that's important not just because they
could sue you for infringement, but but because
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00:22:38,359 --> 00:22:44,365
it establishes in statute that The United
States cares about preventing the circumvention
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00:22:44,365 --> 00:22:48,684
of technological measures to protect
copyrighted works, which means that when they
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00:22:48,684 --> 00:22:52,845
put something in here in their end user license
agreement that says, if you circumvent, we can
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00:22:52,845 --> 00:22:58,380
turn off your software, then they think that
they're more likely to succeed in a court case
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00:22:58,380 --> 00:22:59,500
that somebody fights.
374
00:22:59,500 --> 00:22:59,900
Right?
375
00:22:59,900 --> 00:23:03,339
When Nintendo hits that Switch, they turn off
your Switch two, somebody sues them.
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00:23:03,340 --> 00:23:07,580
They say, we can prove that you were trying to
circumvent us, with whatever you were doing
377
00:23:07,580 --> 00:23:12,059
piracy wise, and they believe The United States
courts will look at this and say, yes.
378
00:23:12,394 --> 00:23:17,114
The congress has said we're concerned about
that, so we are going to side with Nintendo.
379
00:23:17,194 --> 00:23:21,835
It's also one of the reasons why the language
in the end user license agreement in other
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00:23:21,835 --> 00:23:26,180
jurisdictions that are not under the
jurisdiction of the DMCA do not contain the
381
00:23:26,180 --> 00:23:28,579
same language that we're discussing today.
382
00:23:28,660 --> 00:23:33,619
It's not just because the the rules are
different and are interpreted differently in
383
00:23:33,619 --> 00:23:33,940
the courts.
384
00:23:33,940 --> 00:23:38,865
It's because they don't have this particular
concept in other jurisdictions, and Nintendo
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00:23:38,865 --> 00:23:43,105
doesn't know whether the courts would allow for
the enforcement mechanism that they're claiming
386
00:23:43,105 --> 00:23:44,224
in The United States.
387
00:23:44,464 --> 00:23:49,105
But that's important to understand this entire
concept because when we get further in, we see
388
00:23:49,105 --> 00:23:55,429
that that particular provision allows for civil
rights of action, I e, you can sue for damages,
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00:23:55,750 --> 00:23:59,109
and whatnot, which Nintendo could use in the
future if they felt so inclined.
390
00:23:59,269 --> 00:24:01,990
It also includes criminal penalties.
391
00:24:02,070 --> 00:24:07,335
If you are seen as someone who is willfully and
otherwise violating that particular section,
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00:24:07,335 --> 00:24:12,855
you're talking about years in prison, hundreds
of thousands of dollars in fines, and that can
393
00:24:12,855 --> 00:24:18,214
be something that evidences, again, that The
United States cares enough about this concept
394
00:24:18,599 --> 00:24:23,000
that Nintendo feels that they can say, we can
shut down this software, and a court is gonna
395
00:24:23,000 --> 00:24:25,000
back them up at the end of the day.
396
00:24:25,000 --> 00:24:28,440
I can't promise that one way or the other,
neither can the lawyer in the room for
397
00:24:28,440 --> 00:24:29,240
Nintendo.
398
00:24:29,240 --> 00:24:33,265
But if they were to pursue this remedy, they
see there's some piracy, they're gonna shut
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00:24:33,265 --> 00:24:37,585
down access to the online store or maybe even
brick the system in its entirety, they are
400
00:24:37,585 --> 00:24:42,545
doing it on the premise that the circumvention
of a technological measure to prevent piracy,
401
00:24:42,545 --> 00:24:47,390
to prevent copyright infringement is something
that The US cares enough about that a court in
402
00:24:47,390 --> 00:24:50,349
The US is going to backstop their ability to do
these kinds of things.
403
00:24:50,349 --> 00:24:56,109
Now on the other side of the coin, there are
cases relatively recently, this is from 2017,
404
00:24:56,589 --> 00:25:04,055
that talk about companies that try to hard lock
their ecosystem of products and not being
405
00:25:04,055 --> 00:25:04,855
allowed to do so.
406
00:25:04,855 --> 00:25:09,174
This is a patent case that's pretty famous in
the patent world called Impression versus
407
00:25:09,174 --> 00:25:12,934
Lexmarks that talks about toner cartridges.
408
00:25:13,494 --> 00:25:18,259
Respondent Lexmark International designs,
manufactures, and sells toner cartridges to
409
00:25:18,259 --> 00:25:20,099
customers in The United States and abroad.
410
00:25:20,339 --> 00:25:25,619
Companies known as remanufacturers acquire
empty Lexmark's toner cartridge, including
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00:25:25,619 --> 00:25:30,659
return program cartridges from purchases in The
United States, refill them with toner, and then
412
00:25:30,659 --> 00:25:31,379
resell them.
413
00:25:32,545 --> 00:25:36,305
Lexmark argues that because it expressly
prohibited reuse and resale of these
414
00:25:36,305 --> 00:25:40,545
cartridges, Impression Products infringed the
Lexmark's patents when it refurbished and
415
00:25:40,545 --> 00:25:41,424
resold them.
416
00:25:41,505 --> 00:25:45,025
Impression Products moved to dismiss on the
grounds that Lexmark sales both in The United
417
00:25:45,025 --> 00:25:47,859
States and abroad, exhausted its patent rights
in the cartridges.
418
00:25:47,859 --> 00:25:50,339
So Impression Products was free to refurbish
and resell them.
419
00:25:50,340 --> 00:25:54,820
Spoiler alert, the court's gonna side with
Impression and say that Lexmark exhausted its
420
00:25:54,820 --> 00:26:00,204
patent when it sold the good into the line of
commerce and then Impression can take their
421
00:26:00,204 --> 00:26:04,605
toner cartridges in a different market, refill
them, and sell them against Lexmark.
422
00:26:04,605 --> 00:26:07,964
This is a little bit like an antitrust case
that we might have discussed in virtual
423
00:26:07,964 --> 00:26:13,789
legality before, but it's important to note
that there are kind of threads of court cases
424
00:26:13,789 --> 00:26:18,509
in The United States that are looking a little
bit more askance at the way these companies
425
00:26:18,509 --> 00:26:25,095
operate and take broad rights to prevent
potential competition in these spaces in
426
00:26:25,095 --> 00:26:26,454
context like patent law.
427
00:26:26,454 --> 00:26:27,734
We're not talking about patents again.
428
00:26:27,734 --> 00:26:30,375
We're talking about copyrights in this
particular instance.
429
00:26:30,375 --> 00:26:37,494
But it is worth noting that if Nintendo were to
shut down some switches, then part of what the
430
00:26:37,494 --> 00:26:42,099
argument would be against their ability to do
so would be that Nintendo is trying to cut off
431
00:26:42,099 --> 00:26:44,019
competition in some important way.
432
00:26:44,019 --> 00:26:46,019
And certainly, has a history of doing that.
433
00:26:46,019 --> 00:26:50,259
If you look at the Galoob cases in Game Genie
in the past that really gave rise to modern
434
00:26:50,259 --> 00:26:55,384
emulation software law in The United States,
Nintendo may be pushing too hard on this
435
00:26:55,384 --> 00:27:00,984
particular question if they were to shut down
switches in regards to potential infringements
436
00:27:00,984 --> 00:27:03,065
even with the DMCA sitting out there.
437
00:27:03,305 --> 00:27:08,799
So I do wanna point out that this is a
complicated point of law even right now in The
438
00:27:08,799 --> 00:27:12,719
United States with the DMCA sitting out there,
and Nintendo knows that.
439
00:27:12,720 --> 00:27:16,799
This is a lawyer saying we wanna have this
provision, but that is entirely different from
440
00:27:16,799 --> 00:27:19,775
Nintendo itself saying we're gonna execute on
that provision.
441
00:27:19,775 --> 00:27:22,974
So I think there are a lot of reasons to
believe that Nintendo won't execute on that
442
00:27:22,974 --> 00:27:26,734
provision, that you do own your Switch two for
all practical purposes, and that there isn't a
443
00:27:26,734 --> 00:27:28,095
lot to worry about here.
444
00:27:28,255 --> 00:27:33,579
But one of the bigger items that would lead me
to that notion is that everybody else has a
445
00:27:33,579 --> 00:27:35,019
provision like this, folks.
446
00:27:35,019 --> 00:27:39,259
I know GameSpot says you don't really own your
Switch two, but that's only true to the extent
447
00:27:39,259 --> 00:27:44,940
that you don't own any piece of technology that
uses a software operating system as of 2025.
448
00:27:44,940 --> 00:27:48,205
So let's take a look at the PlayStation Network
terms of service and user agreement to have
449
00:27:48,205 --> 00:27:49,005
that discussion.
450
00:27:49,164 --> 00:27:52,924
First, we note that this agreement that I've
pulled up right now is with respect to access
451
00:27:52,924 --> 00:27:54,365
to the PlayStation Network.
452
00:27:54,525 --> 00:27:58,605
Again, Nintendo kind of collapses all of its
software concepts into that one agreement for
453
00:27:58,605 --> 00:27:59,005
the most part.
454
00:27:59,419 --> 00:28:00,940
Sony doesn't do that.
455
00:28:01,500 --> 00:28:05,659
Sony actually has terms of service for the
PlayStation Network where you buy games through
456
00:28:05,659 --> 00:28:11,980
their digital platform interface, and they also
have a system software license agreement where
457
00:28:11,980 --> 00:28:15,954
when you talk about bricking systems and things
that are gonna really scare you, they probably
458
00:28:15,954 --> 00:28:17,234
more rightly belong.
459
00:28:17,234 --> 00:28:21,634
But since the Switch doesn't appear to have
that dividing line, you get everything baked
460
00:28:21,634 --> 00:28:26,034
into the same agreement and you get headlines
like they say they can break your system when
461
00:28:26,034 --> 00:28:28,480
maybe they're claiming that, maybe they're not.
462
00:28:28,640 --> 00:28:31,440
Because when we look at the how PlayStation
describes these things, this is different
463
00:28:31,440 --> 00:28:32,799
lawyers for different companies.
464
00:28:32,799 --> 00:28:36,880
You see they describe the PlayStation Network,
and then if we go a little bit further on, we
465
00:28:36,880 --> 00:28:39,839
get the same language that says it's a licensed
concept.
466
00:28:39,839 --> 00:28:40,880
It's not sold to you.
467
00:28:40,880 --> 00:28:42,400
Every piece of software is licensed.
468
00:28:42,775 --> 00:28:49,095
And then importantly, it says in section 1.6,
top line item, first section, breach of these
469
00:28:49,095 --> 00:28:55,014
terms may result in the temporary or permanent
suspension of your console or your account.
470
00:28:55,095 --> 00:28:59,679
They specifically reference your console there
in the Sony terms of service.
471
00:28:59,679 --> 00:29:05,679
Now they also talk about suspension rather than
bricking anything or permanently disabling, but
472
00:29:05,679 --> 00:29:12,105
permanent suspension and permanently disabling
are not concepts that are different enough
473
00:29:12,105 --> 00:29:16,265
under my eye to say that they're different
concepts for this purpose.
474
00:29:16,265 --> 00:29:19,545
Now if we scroll a little bit further in this
particular license agreement, we'll see that
475
00:29:19,545 --> 00:29:22,505
suspension does sound a little bit different
when we get there.
476
00:29:23,519 --> 00:29:28,640
But as a top line item, Sony reserves the right
to do very bad things to your PlayStation five
477
00:29:28,640 --> 00:29:33,839
if they determine that you've breached some
aspect of this very long license agreement,
478
00:29:33,840 --> 00:29:37,085
including aspects related to community.
479
00:29:37,085 --> 00:29:37,325
Right?
480
00:29:37,325 --> 00:29:41,805
User generated content and how you interact
with the Sony community overall, which we've
481
00:29:41,805 --> 00:29:45,085
covered in virtual reality as a potential
problem because you shouldn't lose access to
482
00:29:45,085 --> 00:29:49,164
everything that you've spent money on because
somebody doesn't like a bit of language that
483
00:29:49,164 --> 00:29:53,160
you've used in chat at some point on your
PlayStation.
484
00:29:53,480 --> 00:29:55,960
But that's what this license agreement says.
485
00:29:55,960 --> 00:29:58,200
It says we can suspend you for all these very
bad things.
486
00:29:58,279 --> 00:30:01,240
You bear all risk of loss for the things that
you buy from us.
487
00:30:01,799 --> 00:30:05,845
You may not do any of these bad things that we
talked about with respect to the Switch terms.
488
00:30:05,845 --> 00:30:08,565
You may not reproduce or transfer content.
489
00:30:08,565 --> 00:30:13,684
Use the content for resale, public performance,
display, except as stated in this agreement.
490
00:30:13,684 --> 00:30:18,130
You may not create any derivative works, and
that becomes important for these conversations
491
00:30:18,130 --> 00:30:22,289
because when you are on Twitch, when you are
otherwise broadcasting on YouTube or wherever
492
00:30:22,289 --> 00:30:26,929
else you're playing your video games and having
people watch you, that is in all likelihood
493
00:30:26,930 --> 00:30:32,884
creating a derivative work under the law that
the various licenses that you've entered into
494
00:30:32,884 --> 00:30:37,845
when you purchased your license to your video
game probably didn't allow for expressly.
495
00:30:37,845 --> 00:30:40,884
Now there are some exceptions to that I've
talked about in virtual reality before, like
496
00:30:40,884 --> 00:30:46,230
Minecraft has a very broad piece of language
that says you can absolutely stream this, under
497
00:30:46,230 --> 00:30:47,589
some specific rules.
498
00:30:47,670 --> 00:30:53,190
But for the most part, the baseline rule when
you buy a video game is that you don't have the
499
00:30:53,190 --> 00:30:55,029
right to put it out there into the world.
500
00:30:55,029 --> 00:30:56,470
You don't have a right to do these various
other things.
501
00:30:56,470 --> 00:31:01,484
That's one of the reasons why you see things
get struck on Twitch when when you see things
502
00:31:01,644 --> 00:31:03,724
become an issue on YouTube.
503
00:31:03,724 --> 00:31:07,805
The limited license granted herein and all use
or access to the content is expressly
504
00:31:07,805 --> 00:31:10,605
conditioned on your compliance with these
agreements terms.
505
00:31:12,250 --> 00:31:16,170
Except for the rights expressly granted herein,
Sony, its affiliates, and everybody else that
506
00:31:16,170 --> 00:31:19,369
it's has an interest in reserves all of its
rights.
507
00:31:19,450 --> 00:31:23,609
Upon termination of this agreement, your
account or license to any content will
508
00:31:23,609 --> 00:31:24,569
immediately cease.
509
00:31:27,024 --> 00:31:30,384
Continuing on a little bit further, again, very
long document here.
510
00:31:30,464 --> 00:31:33,584
Console suspension with or without notice.
511
00:31:33,664 --> 00:31:38,304
We may restrict, suspend, or terminate your PSN
account and PlayStation device, your console,
512
00:31:38,799 --> 00:31:43,119
or indefinitely restrict, suspend, or
discontinue your access to or use of certain
513
00:31:43,119 --> 00:31:47,279
PSN content offerings, features, products,
services if you violate this agreement.
514
00:31:47,279 --> 00:31:49,680
Again, we can basically make that claim.
515
00:31:49,680 --> 00:31:49,839
Yes.
516
00:31:49,839 --> 00:31:53,774
You can sue us about the reasonability of that
claim, but that's really gonna be a problem for
517
00:31:53,774 --> 00:31:54,894
you more than us.
518
00:31:54,894 --> 00:31:57,374
With or without notice, we can turn your stuff
off.
519
00:31:57,534 --> 00:32:01,934
If we have a reasonable belief such a violation
has or will occur, again, there's that future
520
00:32:01,934 --> 00:32:05,614
looking thing, we think that you might violate
this agreement in the future.
521
00:32:05,694 --> 00:32:06,974
We have that reasonable belief.
522
00:32:07,109 --> 00:32:09,990
You have to prove it wasn't reasonable in order
to win your rights back.
523
00:32:09,990 --> 00:32:14,789
It's a whole problem for you if you have a
PlayStation five, but it looks the very same as
524
00:32:14,789 --> 00:32:16,710
what we are seeing in the Switch documentation.
525
00:32:16,710 --> 00:32:20,309
This has been the Sony documentation for a very
long time now.
526
00:32:20,474 --> 00:32:25,194
Upon termination of your account, you will not
receive a refund for items, value accumulated,
527
00:32:25,194 --> 00:32:30,874
or any unused balance in your wallet except for
some specific rules in specific jurisdictions.
528
00:32:30,954 --> 00:32:35,049
And upon suspension of your PlayStation device,
you will not be able to use that console to
529
00:32:35,049 --> 00:32:40,250
access PSN, play any games or game modes
requiring online access, or access any content
530
00:32:40,250 --> 00:32:41,609
purchased from the PlayStation Store.
531
00:32:41,609 --> 00:32:46,329
Now that honestly sounds a little bit less
problematic than what we see in the broad
532
00:32:46,329 --> 00:32:50,904
language used in the Switch document, but again
that's because Sony separates out its
533
00:32:50,904 --> 00:32:54,984
PlayStation Network account license from its
system software license.
534
00:32:54,984 --> 00:32:59,464
So if we go and we look at that document, which
we will right now, we can see some of the more
535
00:32:59,464 --> 00:33:02,424
scary language that you might be concerned
about if you're a Sony PlayStation player.
536
00:33:02,730 --> 00:33:06,650
This agreement applies to any system software,
firmware, and Internet browser software and
537
00:33:06,650 --> 00:33:08,970
other application included in your PS five
system.
538
00:33:10,490 --> 00:33:14,329
All rights to use system software are granted
by license only, and you are not granted any
539
00:33:14,329 --> 00:33:16,009
ownership rights or interest in system
software.
540
00:33:16,009 --> 00:33:16,569
Now that's normal.
541
00:33:16,835 --> 00:33:17,234
Right?
542
00:33:17,234 --> 00:33:21,954
You don't think that by buying a PlayStation
five, you suddenly have the right to the system
543
00:33:21,954 --> 00:33:25,714
software that's operating that PlayStation five
insofar as you could pull it from the
544
00:33:25,714 --> 00:33:27,794
PlayStation five and then sell it to someone
else.
545
00:33:27,875 --> 00:33:28,674
You don't have that right.
546
00:33:28,849 --> 00:33:33,250
Nobody's really confused about having that
right when you buy a console, but they have to
547
00:33:33,250 --> 00:33:37,650
put it in a license like this one so that it's
clear for the law if it ever came up in court.
548
00:33:38,049 --> 00:33:44,154
Continuing on, if SIE, Sony, determines that
you have violated this agreement's terms, Sony
549
00:33:44,154 --> 00:33:49,755
may itself or may procure the taking of any
action to protect its interests such as
550
00:33:49,755 --> 00:33:53,355
disabling access to or use of some or all
system software.
551
00:33:53,515 --> 00:33:58,599
Now it doesn't say it in as bright line in
black letter here, but if they disable access
552
00:33:58,599 --> 00:34:02,039
to your system software for your system, your
system is not gonna work.
553
00:34:02,039 --> 00:34:03,160
That is bricking a system.
554
00:34:03,160 --> 00:34:07,559
This is the same concept as what everybody is
worried about with the Switch as what GameSpot
555
00:34:07,559 --> 00:34:09,719
put up and said you don't own your Switch.
556
00:34:10,135 --> 00:34:13,735
I'm saying this so that we understand the
ecosystem, not that you have to be happy about
557
00:34:13,735 --> 00:34:17,175
what's in the Nintendo license agreement or
what's in the Sony license agreement.
558
00:34:17,175 --> 00:34:20,695
Just to note that this is happening across
technological devices.
559
00:34:20,695 --> 00:34:23,015
It's not limited to game consoles in any
respect.
560
00:34:23,015 --> 00:34:28,079
I used as an example earlier Medical devices,
this is a big issue with respect to whether or
561
00:34:28,079 --> 00:34:32,320
not the provider of medical devices can turn
those things off if they feel that somebody is
562
00:34:32,320 --> 00:34:36,239
violating the terms of service that they've
entered into to operate that particular device.
563
00:34:36,239 --> 00:34:39,744
And that's obviously more important than
whether or not you can play the latest Call of
564
00:34:39,744 --> 00:34:43,105
Duty, whether or not the MRI scanner can
actually be used on your patients in the
565
00:34:43,105 --> 00:34:43,664
hospital.
566
00:34:43,744 --> 00:34:47,585
But that's where these legal questions get
answered is with really serious, really
567
00:34:47,585 --> 00:34:50,385
important stuff, and they haven't been answered
yet.
568
00:34:50,465 --> 00:34:53,710
So Sony reserves the same right that Nintendo
now claims.
569
00:34:53,710 --> 00:34:58,750
Nintendo was already reserving that right in
their earlier terms of service, and yet we do
570
00:34:58,750 --> 00:35:03,950
not see a universe in which PlayStations and
Switches are just being bricked willy nilly
571
00:35:03,950 --> 00:35:05,950
because the companies decide that they don't
like you.
572
00:35:06,264 --> 00:35:06,744
Why?
573
00:35:06,744 --> 00:35:08,184
Because that's bad business.
574
00:35:08,425 --> 00:35:09,945
They wanna sell you Switches.
575
00:35:09,945 --> 00:35:11,625
They wanna sell you PlayStations.
576
00:35:11,704 --> 00:35:16,184
And because they wanna do those things, they
are unlikely to engage in just crazy bricking
577
00:35:16,184 --> 00:35:21,144
of systems, and you can consider yourself the
owner of the hardware that you have purchased
578
00:35:21,429 --> 00:35:26,150
even though there is this right that these
companies have established for themselves in
579
00:35:26,150 --> 00:35:30,309
their contracts and are likely to be upheld
because they have to be able to control their
580
00:35:30,309 --> 00:35:35,269
software and copyright prevents people from
infringing on that software in general.
581
00:35:35,269 --> 00:35:40,465
Now Microsoft is a little bit more confusing
here because Microsoft again is primarily a
582
00:35:40,465 --> 00:35:45,025
software company and they draft their licenses
primarily about their software overall.
583
00:35:45,025 --> 00:35:49,344
So they use a kind of broad umbrella agreement
to talk about all the software they might sell
584
00:35:49,344 --> 00:35:49,585
you.
585
00:35:49,585 --> 00:35:54,139
That includes everything from Windows to Xbox
operating software, and you have to kinda dig
586
00:35:54,139 --> 00:35:58,300
through various documents to get to what might
be of most interest to you, we can see an Xbox
587
00:35:58,300 --> 00:36:03,659
section here that says the Xbox online service,
Xbox Game Studio games, application
588
00:36:03,659 --> 00:36:08,015
subscriptions, and content provided by
Microsoft are only for your personal and
589
00:36:08,015 --> 00:36:09,135
noncommercial use.
590
00:36:09,135 --> 00:36:10,414
They're licensed in general.
591
00:36:10,414 --> 00:36:12,015
They're not sold to you, etcetera.
592
00:36:12,335 --> 00:36:16,815
And then the bit of language that's the closest
to what we're looking for here, for any device
593
00:36:16,815 --> 00:36:21,400
that can connect to Xbox services like an Xbox,
we may automatically check your device for
594
00:36:21,400 --> 00:36:26,119
unauthorized hardware or software that enables
cheating or tampering in violation of the code
595
00:36:26,119 --> 00:36:31,320
of conduct or these terms and download Xbox app
software updates or configuration changes,
596
00:36:31,400 --> 00:36:36,574
including those that prevent you from accessing
the Xbox services or from using unauthorized
597
00:36:36,574 --> 00:36:38,734
hardware or software that enables cheating or
tampering.
598
00:36:38,734 --> 00:36:42,894
Now that probably strikes most of you as a
little bit less controversial than what we were
599
00:36:42,894 --> 00:36:47,135
reading in the Switch license agreement because
this is only talking about cheating or
600
00:36:47,135 --> 00:36:47,614
tampering.
601
00:36:47,614 --> 00:36:52,119
But from a legal perspective, when you talk
about Microsoft deciding what tampering even
602
00:36:52,119 --> 00:36:56,840
means, that could easily be including the
concept of pirating software and the various
603
00:36:56,840 --> 00:36:59,240
other things that Nintendo now expressly calls
out.
604
00:36:59,320 --> 00:37:04,005
And you have to ask yourself whether you prefer
a bit of language here that probably covers the
605
00:37:04,005 --> 00:37:07,684
same same things that you're concerned about
but isn't as clear, or whether you prefer
606
00:37:07,684 --> 00:37:14,244
Nintendo being very brightly worded in what
it's saying it can do and at least having the
607
00:37:14,244 --> 00:37:18,170
fight now before the fight would really be a
problem in the future.
608
00:37:18,889 --> 00:37:23,769
My argument would be that I prefer that kind of
bright line, line in the stand, say what you
609
00:37:23,769 --> 00:37:25,449
mean in these kinds of provisions.
610
00:37:25,449 --> 00:37:30,464
Microsoft having this bit of language here
suggests to me as a lawyer the very same rights
611
00:37:30,464 --> 00:37:35,824
being claimed as what Nintendo's claiming and
what Sony's claiming, but reasonable minds can
612
00:37:35,824 --> 00:37:37,425
differ even on that score.
613
00:37:37,425 --> 00:37:43,140
The point is that this is basically the same
kind of license concept that you see across all
614
00:37:43,140 --> 00:37:47,059
systems, all pieces of technology that you
would buy in 2025.
615
00:37:47,059 --> 00:37:47,940
You don't have to like that.
616
00:37:47,940 --> 00:37:50,820
You can think that there are laws that should
be put into place that maybe prevent this or
617
00:37:50,820 --> 00:37:53,460
require you to go to court to enforce these
various things.
618
00:37:53,460 --> 00:37:55,059
I would be open to that conversation.
619
00:37:55,059 --> 00:37:59,615
Certainly, when we talk about bricking systems,
when we talk about cutting off system software,
620
00:37:59,775 --> 00:38:05,535
that sounds a lot like what we would talk about
in legal parlance as self help.
621
00:38:05,775 --> 00:38:06,335
Right?
622
00:38:06,414 --> 00:38:10,130
If you've sold something to somebody and they
didn't pay what they were supposed to pay, if
623
00:38:10,130 --> 00:38:14,610
there's some other reason that you have to go
onto their property and take back what is
624
00:38:14,610 --> 00:38:20,530
yours, then for the most part, the law looks
poorly at just going in, breaking and entering,
625
00:38:20,530 --> 00:38:23,890
and getting something even if it is rightly
yours under the law.
626
00:38:23,890 --> 00:38:24,849
We call that self help.
627
00:38:24,905 --> 00:38:30,505
Instead, we require you to go to the sheriff
and actually get the state or the jurisdiction
628
00:38:30,505 --> 00:38:34,905
that we're talking about to go and do that for
you so that we have some mechanism to prevent
629
00:38:34,905 --> 00:38:39,010
people from just being vigilantes and doing
whatever they feel is right because that's a
630
00:38:39,010 --> 00:38:43,170
kind of anarchic, not terribly useful way to
function as a society.
631
00:38:43,409 --> 00:38:48,449
And you can definitely argue that the way that
these licenses operate in real time is to allow
632
00:38:48,449 --> 00:38:53,444
these companies to have all this self help, and
we maybe need to have some protection against
633
00:38:53,444 --> 00:38:53,844
that.
634
00:38:53,844 --> 00:38:57,844
But it's important to know that Nintendo isn't
doing anything terribly odd here.
635
00:38:58,085 --> 00:39:04,660
It is in fact just drafting their document in a
more direct way by a lawyer that seemingly is
636
00:39:04,660 --> 00:39:09,219
more concerned about getting all of the
specifics on the page rather than leaving
637
00:39:09,219 --> 00:39:13,219
things to your own kind of imagination as
Microsoft and maybe even Sony to a little bit
638
00:39:13,219 --> 00:39:13,940
do.
639
00:39:14,180 --> 00:39:17,164
But that's what I wanted to say about this
topic.
640
00:39:17,164 --> 00:39:18,204
I think it's important.
641
00:39:18,285 --> 00:39:23,164
I really do think it's good that people are
taking more interest in what is in the licenses
642
00:39:23,164 --> 00:39:24,125
that they're entering into.
643
00:39:24,125 --> 00:39:26,364
That's one of the reasons that virtual legality
exists.
644
00:39:26,364 --> 00:39:30,765
And as I pointed out earlier, there are
headlines and articles about the fact that the
645
00:39:30,269 --> 00:39:34,030
end user license agreement language differs in
The United States and other jurisdictions.
646
00:39:34,030 --> 00:39:38,349
Part of that is because of the existence of the
DMCA and the circumvention of technological
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00:39:38,349 --> 00:39:40,750
security measures provision that we talked
about earlier.
648
00:39:40,750 --> 00:39:42,030
Some of it is not.
649
00:39:42,190 --> 00:39:46,945
We can't really take anything as certain until
we know exactly what Nintendo wants to do with
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00:39:46,945 --> 00:39:50,945
that provision, and we are unlikely to know
that in all reality because they're unlikely to
651
00:39:50,945 --> 00:39:53,105
do anything with that provision in my view.
652
00:39:53,184 --> 00:39:57,585
That said, if you enjoyed this content, if you
like hearing about things like the law and
653
00:39:57,585 --> 00:40:01,239
business of video games and other pop culture
items that you might be interested please
654
00:40:01,239 --> 00:40:04,920
consider supporting VirtuaLegality and this
channel on the whole through Patreon, through
655
00:40:04,920 --> 00:40:06,200
memberships to the channel.
656
00:40:06,200 --> 00:40:09,960
We do livestreams a lot and through super chats
on those livestreams.
657
00:40:09,960 --> 00:40:11,480
I appreciate every little bit of support.
658
00:40:11,480 --> 00:40:15,160
I can't do it without you, and I think we're
doing good work here to get this information
659
00:40:15,160 --> 00:40:15,960
out to more people.
660
00:40:16,464 --> 00:40:20,144
Otherwise, if you don't wanna do any of those
support mechanisms, that's totally fine.
661
00:40:20,144 --> 00:40:20,704
I get it.
662
00:40:20,704 --> 00:40:21,744
It's hard out there.
663
00:40:21,824 --> 00:40:25,264
Just subscribing to the channel for free,
telling your friends that we're having these
664
00:40:25,264 --> 00:40:27,664
conversations, every little bit helps.
665
00:40:27,664 --> 00:40:29,105
And please do check out Gamefile.
666
00:40:29,105 --> 00:40:32,550
I think Steven Tutello is doing good work over
there, and I very much appreciate him
667
00:40:32,550 --> 00:40:37,349
identifying these things even if I think some
of the websites, like GameSpot in particular,
668
00:40:37,349 --> 00:40:39,750
went a little bit too far with what he
identified.
669
00:40:39,829 --> 00:40:41,349
That's been Virtual Legality for today.
670
00:40:41,349 --> 00:40:44,070
Thank you so much for joining me, and I will
see you on the next one.
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00:40:47,164 --> 00:40:52,684
Virtual legality is a YouTube video series with
audio podcast versions presented as commentary
672
00:40:52,684 --> 00:40:55,724
and for education and entertainment purposes
only.
673
00:40:55,965 --> 00:40:59,885
It does not constitute legal advice and does
not create an attorney client relationship.
674
00:40:59,880 --> 00:41:04,759
If you have legal questions about the topics
discussed, please consult your own legal
675
00:41:04,759 --> 00:41:05,239
counsel.
00:00:14,535 --> 00:00:16,934
Hello, and welcome to Virtual Legality.
2
00:00:16,934 --> 00:00:21,094
I'm your host, Richard Hoag, managing member of
the Hoag Law business law firm of Northville,
3
00:00:21,094 --> 00:00:21,734
Michigan.
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00:00:21,815 --> 00:00:26,774
And that means as a business law firm that I
draft end user license agreements, software
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00:00:26,774 --> 00:00:30,890
licenses, and website terms of service
regularly as a day job.
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00:00:30,890 --> 00:00:34,729
And I have a lot of thoughts about this story
that you can see on your screen from game file
7
00:00:34,729 --> 00:00:40,250
of Steven Totillo and what it means for
Nintendo owners or what they think are owners
8
00:00:40,250 --> 00:00:42,729
of the new Switch two system in particular.
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00:00:42,890 --> 00:00:48,234
Now this article reads as a headline, Nintendo
warns it may brick Switch systems, meaning it
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00:00:48,234 --> 00:00:53,594
can make them inoperable, whose users bypass,
modify, decrypt, defeat, tamper with their
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00:00:53,594 --> 00:00:54,875
games and services.
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00:00:55,035 --> 00:00:57,355
And this was the first time I saw this story
discussed.
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00:00:57,355 --> 00:00:59,115
It says it was 05/08/2025.
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00:00:59,115 --> 00:01:03,899
It also says this is a paid article, and I
wanna disclaim that Steven Totillo is one of my
15
00:01:03,899 --> 00:01:07,340
favorite writers working in the video game
space right now.
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00:01:07,340 --> 00:01:12,219
And so I do pay for his substack, but I wanna
disclaim that because this is paid content.
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00:01:12,619 --> 00:01:18,025
He says he received an email at 11:39PM that
had the subject line updates to Nintendo
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00:01:18,025 --> 00:01:20,344
account user agreement and Nintendo privacy
policy.
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00:01:20,344 --> 00:01:24,665
And if you're in any kind of video gaming or
any kind of other software customer, you know
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00:01:24,665 --> 00:01:26,665
that you get these emails from time to time.
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00:01:26,984 --> 00:01:32,229
Because the licenses that you agree to when you
use software all have within them a provision
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00:01:32,229 --> 00:01:37,189
that says, we as the software provider can
change these terms of service at any time.
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00:01:37,189 --> 00:01:41,829
But when they do change them, they give you a
notice like the one listed in this email, and
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00:01:41,829 --> 00:01:45,989
he says in response to that email, it's a good
thing I looked.
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00:01:46,525 --> 00:01:51,084
Most of the changes, just over a 100 edits by
my account, were made to the Nintendo account
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00:01:51,084 --> 00:01:56,204
user agreement, a digital document that people
click on in order to use online connected
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00:01:56,204 --> 00:01:57,325
Nintendo services.
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00:01:57,325 --> 00:02:00,364
That's another aspect of this story that we're
gonna discuss a little bit further on in this
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00:02:00,364 --> 00:02:05,879
video, But an important thing to note here is
that most of these companies, Nintendo,
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00:02:05,879 --> 00:02:10,120
Microsoft, Sony, anybody else that you might be
playing video games through, have a number of
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00:02:10,120 --> 00:02:13,080
different interlocked nested together
agreements.
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00:02:13,275 --> 00:02:17,275
Some of which are for the platform, some of
which are for the hardware operating system,
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00:02:17,354 --> 00:02:21,514
some of which are for the content or account
services as we see described here.
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00:02:21,514 --> 00:02:27,435
Now Nintendo actually tries to flatten that
ecosystem of documents down to mostly one that
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00:02:27,435 --> 00:02:32,050
you have to interact with as a customer, and
that has a lot of benefits.
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00:02:32,050 --> 00:02:35,090
You don't have to read a number of different
documents, but it also has a lot of downsides
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00:02:35,090 --> 00:02:39,969
because there's a lot of conflated ideas in the
Nintendo document that may or may not apply in
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00:02:39,969 --> 00:02:42,129
the very nefarious ways that some are reading
into it.
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00:02:42,525 --> 00:02:47,245
So with that said, I wanna highlight what
Steven Totillo identifies as one of the biggest
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00:02:47,245 --> 00:02:48,125
items here.
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00:02:48,205 --> 00:02:53,165
The most strongly worded change from Nintendo
amid their swath of updates is a major
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00:02:53,165 --> 00:02:57,004
expansion of the company's long standing
warning to the gamers it seems most frustrated
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00:02:57,004 --> 00:02:57,564
with these days.
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00:02:58,060 --> 00:03:03,340
Those who hack or modify its console and games,
run emulators, and in Nintendo's assessment,
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00:03:03,500 --> 00:03:04,860
foment piracy.
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00:03:05,019 --> 00:03:10,060
Nintendo's old user agreement, effective since
April 2021, said, you are not allowed to lease,
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00:03:10,060 --> 00:03:14,835
rent, sublicense, publish, copy, modify, adapt,
translate, reverse engineer, decompile, or
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00:03:14,835 --> 00:03:19,555
disassemble all or any portion of the Nintendo
account services without Nintendo's written
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00:03:19,555 --> 00:03:23,155
consent or unless otherwise expressly permitted
by applicable law.
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00:03:23,715 --> 00:03:28,289
Here's the new, way more intense version
complete with the potential punishment of your
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00:03:28,289 --> 00:03:30,290
Switch being bricked by Nintendo.
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00:03:30,689 --> 00:03:35,009
Without limitation, you agree that you may not
publish, copy, modify, reverse, engineer,
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00:03:35,009 --> 00:03:39,409
lease, rent, decompile, disassemble,
distribute, offer for sale, or create
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00:03:39,409 --> 00:03:43,064
derivative works of any portion of the Nintendo
account services.
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00:03:43,064 --> 00:03:47,305
Now one thing I do note as a lawyer here is
that there are a number of ways to write
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00:03:47,305 --> 00:03:52,025
provisions like this, and the first thing that
I see here is that the new lawyer working on
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00:03:52,025 --> 00:03:56,530
this version of the license agreement is
clearly the kind of lawyer that likes to list
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00:03:56,530 --> 00:03:58,770
out every possible thing that they can think
of.
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00:03:58,849 --> 00:04:02,450
If you've never worked with a lawyer before,
you should know that lawyers, especially
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00:04:02,450 --> 00:04:07,170
business lawyers, are primarily in the business
of trying to figure out ways in which the
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00:04:07,170 --> 00:04:12,614
company that they are representing could be
harmed in the future by not including something
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00:04:12,614 --> 00:04:14,375
in the contract in front of them.
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00:04:14,375 --> 00:04:19,495
So a type of lawyer looks at this and says,
it's better to pack something and not need it
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00:04:19,654 --> 00:04:21,334
than need it and not pack it.
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00:04:21,334 --> 00:04:26,280
Imagining a future lawsuit or court that would
say, hey, you know how to write these words on
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00:04:26,280 --> 00:04:29,319
the page, and you only said decompile and
disassemble.
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00:04:29,480 --> 00:04:33,400
You didn't say anything about distributing or
offering for sale or creating derivative works,
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etcetera.
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And so various lawyers in corporations, working
for corporations in outside firm capacities
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00:04:39,854 --> 00:04:46,735
like I do at Hoag Law or elsewise will have
different kind of risk aversion levels and know
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00:04:46,735 --> 00:04:50,250
their clients and what they want in their
documents a little bit better.
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00:04:50,250 --> 00:04:55,529
But it does mean that language can change that
really doesn't change the substance of the
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00:04:55,529 --> 00:04:56,169
provision.
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00:04:56,329 --> 00:04:57,849
So here we've got a few new entries.
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00:04:57,849 --> 00:05:01,370
I've highlighted them in yellow, but it doesn't
actually change much of what we're talking
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00:05:01,370 --> 00:05:01,769
about here.
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00:05:01,935 --> 00:05:06,254
Nintendo always reserved all the rights
afforded to them under copyright law, which
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00:05:06,254 --> 00:05:09,935
includes the right to prevent derivative works,
includes the right to prevent distribution they
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00:05:09,935 --> 00:05:11,375
don't like, etcetera, etcetera.
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00:05:11,375 --> 00:05:15,610
They're just listing them out more specifically
here because the lawyer, whoever's in the room
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00:05:15,610 --> 00:05:20,009
here drafting this version of the document,
likes to list things out more specifically.
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00:05:20,330 --> 00:05:24,650
Next, we see a reference to bypassing,
modifying, decrypting, defeating, tampering
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00:05:24,650 --> 00:05:29,294
with, or otherwise circumventing, keep a note
on that word circumvent, any of the functions
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00:05:29,294 --> 00:05:32,975
or protections of the Nintendo account
services, including through the use of any
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00:05:32,975 --> 00:05:37,055
hardware or software that would cause the
Nintendo account services to operate other than
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00:05:37,055 --> 00:05:40,175
in accordance with its documentation and
intended use.
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00:05:40,254 --> 00:05:44,020
So this is aimed at what Steven Totillo
identified earlier, which is things that are
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00:05:44,020 --> 00:05:48,819
gonna break the way a Nintendo device functions
through a reference to the account services
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00:05:48,819 --> 00:05:49,620
specifically.
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00:05:50,180 --> 00:05:56,020
The next item is you can't obtain, install, or
use any unauthorized copies of Nintendo account
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00:05:56,020 --> 00:05:56,420
services.
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00:05:56,764 --> 00:06:02,365
The services specifically, but that does
include video games in the concept, or exploit
93
00:06:02,365 --> 00:06:06,285
the Nintendo account services in any manner
other than to use them in accordance with the
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00:06:06,285 --> 00:06:09,084
applicable documentation and intended use in
each case.
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00:06:09,399 --> 00:06:10,919
Now that's a lot of words.
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00:06:10,919 --> 00:06:11,160
Right?
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00:06:11,160 --> 00:06:13,079
That's a lot of lawyer drafting there.
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00:06:13,079 --> 00:06:18,120
But ultimately, in my view, that is almost
entirely covered by what was already in the
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00:06:18,120 --> 00:06:21,000
Nintendo old user agreement in April of twenty
twenty one.
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00:06:21,319 --> 00:06:25,774
Now that said, they did add a bit of language
here that I think has gotten everybody a little
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00:06:25,774 --> 00:06:30,095
concerned about what they're purchasing with
the Nintendo Switch, and that is that Nintendo
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00:06:30,095 --> 00:06:34,814
added language that said, you acknowledge that
if you fail to comply with the foregoing
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00:06:34,814 --> 00:06:40,639
restrictions, Nintendo may render the Nintendo
account services and or the applicable Nintendo
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00:06:40,639 --> 00:06:43,839
device permanently unusable in whole or in
part.
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00:06:43,839 --> 00:06:48,079
Now this is one of those areas where I think
Nintendo trying to conflate things like the
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00:06:48,079 --> 00:06:54,044
operating system license with the video game
license and the account services concept is a
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00:06:54,044 --> 00:06:57,884
thing that makes it a little bit harder to
read, not just for the layman, not just for
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00:06:57,884 --> 00:07:02,044
anybody that's not been to law school that just
bought a Nintendo Switch, but also for the
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00:07:02,044 --> 00:07:02,604
lawyers.
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00:07:02,604 --> 00:07:07,660
Because the best reading of this to me, what
Nintendo seems to be aimed at here is that we
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00:07:07,660 --> 00:07:11,259
can turn off your ability to use the Nintendo
account services, what you purchased through
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00:07:11,259 --> 00:07:16,779
the eShop, and those kinds of things, and not
necessarily brick your console, but it's not
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00:07:16,779 --> 00:07:21,574
clear here, And bricking here would mean the
disabling of the operating system.
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00:07:21,735 --> 00:07:27,095
Understanding that when you purchase a Switch
two or any other piece of technology in 2025,
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00:07:27,175 --> 00:07:32,410
what you are most likely purchasing is a bit of
hardware in the real world, the chips, the
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00:07:32,410 --> 00:07:36,810
actual box that you are putting under your TV,
the dock that you're putting it in in the case
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00:07:36,810 --> 00:07:41,529
of a Switch, and the software that actually
runs that hardware.
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00:07:41,529 --> 00:07:42,009
Right?
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00:07:42,009 --> 00:07:45,449
If Nintendo bricks it, it doesn't mean that
they run into your house and steal your Switch.
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00:07:45,524 --> 00:07:49,365
It just means that they steal the functionality
of the Switch, and that's the same effect for
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00:07:49,365 --> 00:07:50,165
you and me.
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00:07:50,245 --> 00:07:54,084
But it does mean that they are talking about
software when they're talking about bricking
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00:07:54,084 --> 00:07:57,125
something, not lighting your system on fire.
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00:07:57,365 --> 00:08:03,149
So when we talk about these things, it's
important to note here that we're talking about
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00:08:03,149 --> 00:08:06,350
a combined system of hardware and software
acting together.
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00:08:06,509 --> 00:08:11,389
And what Nintendo is basically claiming
Dominion over is its software.
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00:08:11,629 --> 00:08:15,949
That because you have to connect online to use
the Nintendo account services anyway and
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00:08:16,375 --> 00:08:21,095
probably to operate your Switch in most cases
that you're gonna operate it on in 2025.
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00:08:21,095 --> 00:08:25,254
Nintendo reserves the right to say if you do
very bad things that we don't like, we can say
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00:08:25,254 --> 00:08:27,975
your operating system doesn't work, which means
your Switch doesn't work.
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00:08:28,310 --> 00:08:29,110
That's not great.
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00:08:29,110 --> 00:08:32,870
I'm not gonna sit here and tell you that you
should be happy about these technology
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00:08:32,870 --> 00:08:38,389
companies having the ability to do that, but I
wanna get into this more fulsomely so that we
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00:08:38,389 --> 00:08:42,950
can better understand what the current
ecosystem of video game devices is in any event
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00:08:43,134 --> 00:08:45,615
and what this language actually means.
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00:08:45,855 --> 00:08:50,815
The other thing I would add from a purely
lawyer to lawyer term of art here is that I
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00:08:50,815 --> 00:08:54,975
don't think you acknowledge is actually the
right way to describe this because you can
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00:08:54,975 --> 00:08:56,735
acknowledge all sorts of things that aren't
true.
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00:08:57,120 --> 00:09:01,519
So Nintendo saying, you acknowledge that if you
fail to comply, we can brick your system,
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00:09:01,600 --> 00:09:06,000
maybe, is probably not as useful as a bit of
language that I like to put in my agreements,
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00:09:06,000 --> 00:09:11,279
which is user acknowledges and agrees, or you
acknowledge and agree that we can do these
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00:09:11,279 --> 00:09:11,679
things.
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00:09:11,679 --> 00:09:14,815
That gives the party the right to actually do
those things.
144
00:09:14,815 --> 00:09:18,414
You acknowledge that we can do this doesn't
actually put that legal right in play.
145
00:09:18,575 --> 00:09:20,014
That's angels on the head of a pin.
146
00:09:20,014 --> 00:09:22,894
That's very legal easy, so don't worry about
that too much.
147
00:09:22,894 --> 00:09:27,809
But I did wanna state that this language is not
language that I love here, and that's because
148
00:09:27,809 --> 00:09:33,649
it can't itself create a new right outside of
the law just with this provision even though
149
00:09:33,649 --> 00:09:38,769
contracts in general are putting forth rights
and obligations that either side has.
150
00:09:39,284 --> 00:09:43,764
And you could write this in a way that maybe is
a little bit more protective of Nintendo if
151
00:09:43,764 --> 00:09:46,004
they decided to do that in the future.
152
00:09:46,004 --> 00:09:51,764
But with that said, I did wanna point out that
Steven Totillo, who I again think is an
153
00:09:51,764 --> 00:09:55,009
excellent journalist in this space, doesn't
just say, wow.
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00:09:55,009 --> 00:09:56,769
That's a horrible thing that Nintendo can do.
155
00:09:56,929 --> 00:09:59,649
It says not he says not that surprising, of
course.
156
00:09:59,730 --> 00:10:03,330
We're just seeing Nintendo's recent legal
energy funneled into its user agreement.
157
00:10:03,649 --> 00:10:08,824
So he's taking this with the kind of sober
approach that I expect from him at this point
158
00:10:08,824 --> 00:10:09,704
in time saying, okay.
159
00:10:09,704 --> 00:10:13,304
There's a lot of legalese here, and it doesn't
look great, and we should note it.
160
00:10:13,304 --> 00:10:17,625
I'm writing an article about it after all, but
it maybe isn't the end of the world.
161
00:10:17,865 --> 00:10:21,830
But not everybody takes that exact tack, and
we'll see that when we get to the response
162
00:10:21,830 --> 00:10:23,670
section of this video.
163
00:10:23,750 --> 00:10:28,230
The other thing I wanted to point out is
looking at this document, there's a lot going
164
00:10:28,230 --> 00:10:32,629
on here that maybe is not something that people
are talking about as much as they maybe should
165
00:10:32,629 --> 00:10:33,110
be.
166
00:10:33,269 --> 00:10:37,394
One thing Steven Tutillo does note in his
article is that they have added this concept in
167
00:10:37,394 --> 00:10:42,274
at the beginning of their document that says,
your parent or legal guardian agrees to the
168
00:10:42,274 --> 00:10:46,195
Nintendo account user agreement if you're a
child and you otherwise click through to use
169
00:10:46,195 --> 00:10:48,034
your Nintendo Switch to play Mario Kart world.
170
00:10:48,500 --> 00:10:54,179
And one thing I note here as a top line item is
that this does appear to be Nintendo being very
171
00:10:54,179 --> 00:10:59,700
aggressive in their documentation because in
most cases, this language isn't gonna work.
172
00:10:59,860 --> 00:11:00,179
Right?
173
00:11:00,179 --> 00:11:05,125
And there's nothing preventing anybody in any
space, in any user license agreement, in any
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00:11:05,125 --> 00:11:09,684
other context from putting things in the
contract that a court is not gonna uphold.
175
00:11:09,845 --> 00:11:14,084
It's maybe not a great idea, but you're trying
to signal to people of what you're trying to
176
00:11:14,084 --> 00:11:14,725
achieve.
177
00:11:15,125 --> 00:11:20,029
And this case is one where Nintendo got burned
by the fact that kids had agreed to certain
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00:11:20,029 --> 00:11:20,589
terms.
179
00:11:20,909 --> 00:11:24,830
It when with respect to the Joy Cons, I
believe, on the Switch one system.
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00:11:25,389 --> 00:11:28,750
And some court said, well, that's not the
adults that agreed to those terms, those
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limitations on the ability to sue, for
instance.
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And so Nintendo is trying to cover that by
saying, hey, kids, don't sign this if you're
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under age 18, but if you do, your parents or
legal guardians are on the hook.
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That probably doesn't work in contract law
because you can't just grab someone else that's
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not a party and say you're now a party to this
document.
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Things get a little bit confusing with respect
to guardians and kids because you do have
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certain responsibilities as a parent or
guardian for the actions of your children in
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The United States and in other jurisdictions
laws.
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So this is probably a gray area, but it does at
least speak to the fact that Nintendo is trying
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to be aggressive, doesn't necessarily care
whether or not this is fully enforceable as
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much as it cares about signaling that it wants
it to be read this way, and that if you are a
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parent or legal guardian, you should be
concerned and you should be wary of what your
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child is doing so that we don't have to have
this fight in court again in the future.
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Now importantly, this document, as mister
Tortillo said, says it governs your use of the
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Nintendo account services through your Nintendo
account.
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And in definitions, it establishes the Nintendo
account services including, for example, video
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games as well as any other Nintendo products
that require the use of a Nintendo account are
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all included in this definition.
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So they're grabbing things you buy from the
eShop.
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They're grabbing your Switch and your Switch
two when they're discussing what they can do
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under this license.
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You acknowledge again that if you fail to
comply with the foregoing restrictions,
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Nintendo may render the Nintendo account
services and or the applicable Nintendo device
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permanently unusable in whole or in part.
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Now I think in all likelihood, that's best read
to mean that we'll shut down your access to the
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Nintendo online services, the eShop, and what
have you rather than bricking the whole system
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because that would have all sorts of public
relations ramifications that Nintendo probably
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doesn't want at this point in time, but I can't
guarantee that.
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Nobody can really guarantee that for you until
Nintendo decides to do anything with this
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language.
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But, again, based on all the other inclusions,
including what we just talked about at the top
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and the additional language in this section,
this appears to be a document written by a
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lawyer that's trying to describe every possible
thing that could happen in the future and wants
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Nintendo to have the armament that it thinks
that they would need in the case that something
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like this happened even if they didn't intend
to use it.
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Right?
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One thing that other people should note about
these documents, there's a lot of landmines in
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these things.
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There's a lot of things that companies
otherwise reserve the right to do that in all
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likelihood they wouldn't want to do because it
would have all those negative public relations
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ramifications.
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It wouldn't be a great market idea to do very
bad thing x, y, or z, but they have them in
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these documents because some lawyer somewhere
said, you're gonna regret it if you don't have
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this bit of language somewhere in the future.
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And the people in the room said, okay.
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We'll go with that.
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That's always a push and pull with businesses
and lawyers.
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Lawyers always are looking for every possible
bad thing that could happen and saying, you
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should put this language in or else you're
gonna get burned in the future.
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Lawyers develop that kind of muscle memory
because they're worried about being sued for
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malpractice for the company flipping around on
them in the future and saying you never told us
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this could have happened, and your failure to
do so is malpractice and all these various
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things that are bad things about the way that
this whole process works.
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But that's how this language gets in there, and
I don't believe there's any strong intent by
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Nintendo to actually start bricking systems out
there in the market because I can imagine that
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would have a very negative ramification on the
way they actually operate their service.
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That said, there's a bit more in here that is
mostly the same as it was in the earlier
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00:15:00,565 --> 00:15:04,165
version of this document, but is important for
understanding what's happening here.
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00:15:04,569 --> 00:15:07,289
Breach and termination of the agreement,
section 13.
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Nintendo may terminate this agreement or
suspend your access to any or all Nintendo
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account services in our sole discretion and
without prior notice to you if you violate this
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agreement.
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Now important to note here is that this doesn't
require a separate lawsuit.
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Right?
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The only people that are deciding whether you
violated this agreement for this provision to
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00:15:25,544 --> 00:15:29,704
take place for Nintendo to have these rights is
Nintendo itself.
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And this is a way that people should be
concerned about end user license agreements in
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general, which is to say, we've got all sorts
of court protections and things that I can talk
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about in virtual legality or elsewise that talk
about companies that have to go through a
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process before they can do very bad thing to
you.
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Contracts are different.
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Contracts, you're agreeing to the bounds of
what each party can do in any given
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circumstances.
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Here, it says Nintendo can do these things if
you violate this agreement, but doesn't say if
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a court finds that you violated this agreement.
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00:15:59,754 --> 00:16:01,195
It just says if you violate this agreement.
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00:16:01,480 --> 00:16:06,440
And by its terms, that means if we at Nintendo
decide that you violated the agreement.
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Or as they say further on, if we have a
reasonable belief that such a violation has or
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will occur, we just think you're a bad guy and
we think you're gonna steal our stuff.
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Or as we otherwise determine to be reasonably
necessary for legal, technical, or commercial
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reasons.
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Right?
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Not legal reasons.
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00:16:23,485 --> 00:16:28,605
If we think that it's a bad idea commercially
for you to have access to your Switch account,
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00:16:28,925 --> 00:16:29,965
then we can cut it off.
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And that's worth noting.
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One of the reasons I made virtual reality in
the first place was for people to take better
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note of what's in the contracts that they're
signing so that they can understand what the
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playing field is in the future on any and all
things related to video gaming or otherwise
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things that they are interested in.
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00:16:47,375 --> 00:16:52,334
Now to some extent, people read what they wanna
read and they see the parade of horribles and
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00:16:52,334 --> 00:16:54,894
say all these corporations are evil, etcetera.
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00:16:54,975 --> 00:17:00,149
But what I wanna point out is that these things
are baked in, and I want people to be aware of
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what they're signing so that they can make
better purchasing decisions on what they want
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to enter into and what they don't.
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00:17:05,750 --> 00:17:09,509
It's a big amount of trust that these companies
demand.
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When I sit here in virtual reality and say
they're unlikely to use these for any of the
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very bad reasons, some companies will.
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00:17:15,724 --> 00:17:19,244
And they will develop a reputation that says, I
don't wanna enter into a user license agreement
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with them for those reasons.
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But it's important to note these things because
this is the kind of language that leads to the
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provision up above that says, you acknowledge
that we can brick your system.
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So that's the state of play here.
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I did also pull up the earlier document just to
point out that this is an area where Nintendo
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is changing things a little bit.
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00:17:39,419 --> 00:17:43,419
You'll see that they elevated things that they
care about in this earlier version in respect
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00:17:43,419 --> 00:17:44,700
of individual arbitration.
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That's again another lawyer thing that you do
in a license agreement is to elevate the stuff
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00:17:50,295 --> 00:17:54,134
that you really wanna make sure is enforceable
because some courts will look at a license
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00:17:54,134 --> 00:17:58,869
agreement like this and say if it's in the
middle somewhere and it's important, then we're
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00:17:58,869 --> 00:18:02,710
not gonna necessarily hold the other party to
it because they didn't have an ability to
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00:18:02,710 --> 00:18:06,470
negotiate this contract, and they didn't know
what they were signing away.
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00:18:06,549 --> 00:18:11,589
This is the you can't put in you've sold your
firstborn child in the middle of the document.
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The court's not gonna enforce that anyway, but
it's certainly not gonna enforce it if you
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00:18:15,164 --> 00:18:19,964
don't highlight that that's actually in the
document itself because nobody really expects
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00:18:19,964 --> 00:18:23,164
the normal consumer to go through every word of
these things.
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00:18:23,164 --> 00:18:26,605
And that's its own problem in the law, and we
could certainly talk about that on another
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video.
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But that's the state of play with respect to
the Nintendo Switch, and then came the
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00:18:31,700 --> 00:18:32,420
response.
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So here's the IGN article.
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00:18:35,380 --> 00:18:39,539
Nintendo revises user agreement, and if you
break it, Nintendo reserves the right to brick
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your Switch.
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That's IGN's headline.
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00:18:41,894 --> 00:18:46,855
I think that's mostly a good headline that is
identifying what is being stated here even
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00:18:46,855 --> 00:18:52,454
though we don't 100% know that Nintendo is
claiming the right to brick the Switch as much
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00:18:52,454 --> 00:18:56,029
as it is to cut off your access to the Nintendo
service portal.
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00:18:56,029 --> 00:18:57,309
We have other headlines.
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00:18:57,309 --> 00:18:59,150
Who really owns your Switch too?
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00:18:59,549 --> 00:19:03,950
It's a me, suggests Nintendo, which I thought
was amusing, so I highlighted here.
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00:19:03,950 --> 00:19:08,190
Nintendo can brick your Switch and skirt
lawsuits in outrageous end user license
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00:19:08,190 --> 00:19:10,765
agreement update from hot hardwire.
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00:19:10,924 --> 00:19:13,484
And I think that is, again, the important
aspect of this.
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00:19:13,484 --> 00:19:18,445
This is obviously a headline designed to be
incendiary, but, again, the the concern if you
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00:19:18,445 --> 00:19:22,125
have one with respect to end user license
agreements on the whole, and certainly this one
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00:19:22,125 --> 00:19:27,119
if this popped up on your feed or you're
otherwise seeing news items about it, is that
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00:19:27,119 --> 00:19:30,640
Nintendo doesn't have to go through a court to
turn your system off.
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00:19:30,640 --> 00:19:31,759
Nintendo doesn't have to.
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00:19:31,759 --> 00:19:37,279
It just has to claim that it sees something at
issue with you potentially violating the terms
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00:19:37,279 --> 00:19:42,085
of the agreement or becoming a commercial
liability to them in some way, and then they
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00:19:42,085 --> 00:19:43,924
can turn your system access off.
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00:19:44,164 --> 00:19:48,644
GameSpot had the most incendiary version of
this, and I thought that this was really not a
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00:19:48,644 --> 00:19:49,845
great way to put this headline out.
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00:19:50,179 --> 00:19:54,019
According to Nintendo's end user license
agreement, you won't actually own your Switch
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00:19:54,019 --> 00:19:58,500
two, and this has been jumped on in various
places on the Internet, and I still see it in
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00:19:58,500 --> 00:19:59,859
the last week or two.
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00:19:59,859 --> 00:20:01,779
And a full disclaimer, I'm a Switch two owner.
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I love the Switch two, And so you can take my
words on that with a grain of salt.
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00:20:05,924 --> 00:20:10,404
I suppose I obviously thought the license
agreement was fine enough for me to purchase
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this particular console.
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00:20:11,924 --> 00:20:13,605
But GameSpot goes out with news like this.
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00:20:13,605 --> 00:20:15,924
This gets repeated in various places on the
Internet.
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00:20:15,924 --> 00:20:20,289
And one of the reasons you're seeing this video
today because I wanna talk to you all about
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00:20:20,289 --> 00:20:24,529
what Nintendo has the rights to do and what
they don't have the rights to do even in the
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00:20:24,529 --> 00:20:25,650
contract terms they have.
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00:20:25,650 --> 00:20:30,825
So first and foremost, I wanna point out again
that what you're buying when you buy a Switch
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00:20:30,825 --> 00:20:36,345
two, when you buy a PlayStation, when you buy
an Xbox, when you buy an MRI scanner, you know,
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00:20:36,345 --> 00:20:41,144
any other piece of technology in the world is
that you are buying a piece of hardware and
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00:20:41,144 --> 00:20:43,349
software operating together.
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00:20:43,430 --> 00:20:47,109
And when we talk about software, the contracts
that were are at issue here, we're talking
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00:20:47,109 --> 00:20:49,509
primarily about copyright.
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00:20:49,670 --> 00:20:56,085
So you make code and that operates your system,
your hardware, and that code is copyrighted.
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00:20:56,085 --> 00:21:01,045
It's protected in the nature of what it is as a
creative work rather than patented, which is
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00:21:01,045 --> 00:21:05,605
undoubtedly what is covering the hardware that
Nintendo actually sells you in the box when you
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00:21:05,605 --> 00:21:07,285
go to the Walmart or the Target or what have
you.
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00:21:07,740 --> 00:21:13,900
Copyright protects the software, and copyright
infringement law is what's going to govern the
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00:21:13,900 --> 00:21:17,420
way that the end user license agreement is read
by a court system.
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00:21:17,420 --> 00:21:22,539
Now that's important because one of the things
that pops in to cover copyright in The United
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00:21:22,539 --> 00:21:28,904
States is the Digital Millennium Copyright Act
or the DMCA, which you see most often
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00:21:28,904 --> 00:21:32,984
referenced on the Internet with respect to
takedown notices and things to YouTube and the
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00:21:32,984 --> 00:21:33,544
like.
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00:21:33,705 --> 00:21:38,700
But it has one important provision that's
really key to understanding this issue as it
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00:21:38,700 --> 00:21:42,779
pertains to Nintendo and anything else that you
might buy into in the video game space.
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00:21:42,940 --> 00:21:48,059
That is the notion that the circumvention of
copyright protection systems is itself
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00:21:48,059 --> 00:21:48,779
outlawed.
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00:21:49,394 --> 00:21:53,154
Mostly when we talk about copyright
infringement, we're talking about stealing a
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00:21:53,154 --> 00:21:58,194
picture of Mario and putting it in your own
work in some way that Nintendo wouldn't like,
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00:21:58,275 --> 00:22:02,195
and that's you using their intellectual
property in a way that's unlicensed, and that's
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00:22:02,195 --> 00:22:02,674
infringement.
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00:22:02,920 --> 00:22:04,359
This is something different.
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00:22:04,680 --> 00:22:09,559
This says no person shall circumvent, and I
told you to put a pin in that word that they
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00:22:09,559 --> 00:22:13,720
put into their end user license agreement this
time, a technological measure that effectively
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00:22:13,720 --> 00:22:16,119
controls access to a work protected under this
title.
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00:22:16,674 --> 00:22:22,434
And this provides an entire other avenue for
these companies to try to protect their
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00:22:22,434 --> 00:22:24,195
software to say, okay.
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00:22:24,195 --> 00:22:28,195
If we're protecting it through some kind of
hardware or other mechanism, then if you
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00:22:28,195 --> 00:22:33,960
circumvent that, we have our own independent
right of action to sue you for infringement.
368
00:22:34,200 --> 00:22:38,359
And that's important not just because they
could sue you for infringement, but but because
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00:22:38,359 --> 00:22:44,365
it establishes in statute that The United
States cares about preventing the circumvention
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00:22:44,365 --> 00:22:48,684
of technological measures to protect
copyrighted works, which means that when they
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00:22:48,684 --> 00:22:52,845
put something in here in their end user license
agreement that says, if you circumvent, we can
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00:22:52,845 --> 00:22:58,380
turn off your software, then they think that
they're more likely to succeed in a court case
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00:22:58,380 --> 00:22:59,500
that somebody fights.
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00:22:59,500 --> 00:22:59,900
Right?
375
00:22:59,900 --> 00:23:03,339
When Nintendo hits that Switch, they turn off
your Switch two, somebody sues them.
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00:23:03,340 --> 00:23:07,580
They say, we can prove that you were trying to
circumvent us, with whatever you were doing
377
00:23:07,580 --> 00:23:12,059
piracy wise, and they believe The United States
courts will look at this and say, yes.
378
00:23:12,394 --> 00:23:17,114
The congress has said we're concerned about
that, so we are going to side with Nintendo.
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00:23:17,194 --> 00:23:21,835
It's also one of the reasons why the language
in the end user license agreement in other
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00:23:21,835 --> 00:23:26,180
jurisdictions that are not under the
jurisdiction of the DMCA do not contain the
381
00:23:26,180 --> 00:23:28,579
same language that we're discussing today.
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00:23:28,660 --> 00:23:33,619
It's not just because the the rules are
different and are interpreted differently in
383
00:23:33,619 --> 00:23:33,940
the courts.
384
00:23:33,940 --> 00:23:38,865
It's because they don't have this particular
concept in other jurisdictions, and Nintendo
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00:23:38,865 --> 00:23:43,105
doesn't know whether the courts would allow for
the enforcement mechanism that they're claiming
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00:23:43,105 --> 00:23:44,224
in The United States.
387
00:23:44,464 --> 00:23:49,105
But that's important to understand this entire
concept because when we get further in, we see
388
00:23:49,105 --> 00:23:55,429
that that particular provision allows for civil
rights of action, I e, you can sue for damages,
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00:23:55,750 --> 00:23:59,109
and whatnot, which Nintendo could use in the
future if they felt so inclined.
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00:23:59,269 --> 00:24:01,990
It also includes criminal penalties.
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00:24:02,070 --> 00:24:07,335
If you are seen as someone who is willfully and
otherwise violating that particular section,
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00:24:07,335 --> 00:24:12,855
you're talking about years in prison, hundreds
of thousands of dollars in fines, and that can
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00:24:12,855 --> 00:24:18,214
be something that evidences, again, that The
United States cares enough about this concept
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00:24:18,599 --> 00:24:23,000
that Nintendo feels that they can say, we can
shut down this software, and a court is gonna
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00:24:23,000 --> 00:24:25,000
back them up at the end of the day.
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00:24:25,000 --> 00:24:28,440
I can't promise that one way or the other,
neither can the lawyer in the room for
397
00:24:28,440 --> 00:24:29,240
Nintendo.
398
00:24:29,240 --> 00:24:33,265
But if they were to pursue this remedy, they
see there's some piracy, they're gonna shut
399
00:24:33,265 --> 00:24:37,585
down access to the online store or maybe even
brick the system in its entirety, they are
400
00:24:37,585 --> 00:24:42,545
doing it on the premise that the circumvention
of a technological measure to prevent piracy,
401
00:24:42,545 --> 00:24:47,390
to prevent copyright infringement is something
that The US cares enough about that a court in
402
00:24:47,390 --> 00:24:50,349
The US is going to backstop their ability to do
these kinds of things.
403
00:24:50,349 --> 00:24:56,109
Now on the other side of the coin, there are
cases relatively recently, this is from 2017,
404
00:24:56,589 --> 00:25:04,055
that talk about companies that try to hard lock
their ecosystem of products and not being
405
00:25:04,055 --> 00:25:04,855
allowed to do so.
406
00:25:04,855 --> 00:25:09,174
This is a patent case that's pretty famous in
the patent world called Impression versus
407
00:25:09,174 --> 00:25:12,934
Lexmarks that talks about toner cartridges.
408
00:25:13,494 --> 00:25:18,259
Respondent Lexmark International designs,
manufactures, and sells toner cartridges to
409
00:25:18,259 --> 00:25:20,099
customers in The United States and abroad.
410
00:25:20,339 --> 00:25:25,619
Companies known as remanufacturers acquire
empty Lexmark's toner cartridge, including
411
00:25:25,619 --> 00:25:30,659
return program cartridges from purchases in The
United States, refill them with toner, and then
412
00:25:30,659 --> 00:25:31,379
resell them.
413
00:25:32,545 --> 00:25:36,305
Lexmark argues that because it expressly
prohibited reuse and resale of these
414
00:25:36,305 --> 00:25:40,545
cartridges, Impression Products infringed the
Lexmark's patents when it refurbished and
415
00:25:40,545 --> 00:25:41,424
resold them.
416
00:25:41,505 --> 00:25:45,025
Impression Products moved to dismiss on the
grounds that Lexmark sales both in The United
417
00:25:45,025 --> 00:25:47,859
States and abroad, exhausted its patent rights
in the cartridges.
418
00:25:47,859 --> 00:25:50,339
So Impression Products was free to refurbish
and resell them.
419
00:25:50,340 --> 00:25:54,820
Spoiler alert, the court's gonna side with
Impression and say that Lexmark exhausted its
420
00:25:54,820 --> 00:26:00,204
patent when it sold the good into the line of
commerce and then Impression can take their
421
00:26:00,204 --> 00:26:04,605
toner cartridges in a different market, refill
them, and sell them against Lexmark.
422
00:26:04,605 --> 00:26:07,964
This is a little bit like an antitrust case
that we might have discussed in virtual
423
00:26:07,964 --> 00:26:13,789
legality before, but it's important to note
that there are kind of threads of court cases
424
00:26:13,789 --> 00:26:18,509
in The United States that are looking a little
bit more askance at the way these companies
425
00:26:18,509 --> 00:26:25,095
operate and take broad rights to prevent
potential competition in these spaces in
426
00:26:25,095 --> 00:26:26,454
context like patent law.
427
00:26:26,454 --> 00:26:27,734
We're not talking about patents again.
428
00:26:27,734 --> 00:26:30,375
We're talking about copyrights in this
particular instance.
429
00:26:30,375 --> 00:26:37,494
But it is worth noting that if Nintendo were to
shut down some switches, then part of what the
430
00:26:37,494 --> 00:26:42,099
argument would be against their ability to do
so would be that Nintendo is trying to cut off
431
00:26:42,099 --> 00:26:44,019
competition in some important way.
432
00:26:44,019 --> 00:26:46,019
And certainly, has a history of doing that.
433
00:26:46,019 --> 00:26:50,259
If you look at the Galoob cases in Game Genie
in the past that really gave rise to modern
434
00:26:50,259 --> 00:26:55,384
emulation software law in The United States,
Nintendo may be pushing too hard on this
435
00:26:55,384 --> 00:27:00,984
particular question if they were to shut down
switches in regards to potential infringements
436
00:27:00,984 --> 00:27:03,065
even with the DMCA sitting out there.
437
00:27:03,305 --> 00:27:08,799
So I do wanna point out that this is a
complicated point of law even right now in The
438
00:27:08,799 --> 00:27:12,719
United States with the DMCA sitting out there,
and Nintendo knows that.
439
00:27:12,720 --> 00:27:16,799
This is a lawyer saying we wanna have this
provision, but that is entirely different from
440
00:27:16,799 --> 00:27:19,775
Nintendo itself saying we're gonna execute on
that provision.
441
00:27:19,775 --> 00:27:22,974
So I think there are a lot of reasons to
believe that Nintendo won't execute on that
442
00:27:22,974 --> 00:27:26,734
provision, that you do own your Switch two for
all practical purposes, and that there isn't a
443
00:27:26,734 --> 00:27:28,095
lot to worry about here.
444
00:27:28,255 --> 00:27:33,579
But one of the bigger items that would lead me
to that notion is that everybody else has a
445
00:27:33,579 --> 00:27:35,019
provision like this, folks.
446
00:27:35,019 --> 00:27:39,259
I know GameSpot says you don't really own your
Switch two, but that's only true to the extent
447
00:27:39,259 --> 00:27:44,940
that you don't own any piece of technology that
uses a software operating system as of 2025.
448
00:27:44,940 --> 00:27:48,205
So let's take a look at the PlayStation Network
terms of service and user agreement to have
449
00:27:48,205 --> 00:27:49,005
that discussion.
450
00:27:49,164 --> 00:27:52,924
First, we note that this agreement that I've
pulled up right now is with respect to access
451
00:27:52,924 --> 00:27:54,365
to the PlayStation Network.
452
00:27:54,525 --> 00:27:58,605
Again, Nintendo kind of collapses all of its
software concepts into that one agreement for
453
00:27:58,605 --> 00:27:59,005
the most part.
454
00:27:59,419 --> 00:28:00,940
Sony doesn't do that.
455
00:28:01,500 --> 00:28:05,659
Sony actually has terms of service for the
PlayStation Network where you buy games through
456
00:28:05,659 --> 00:28:11,980
their digital platform interface, and they also
have a system software license agreement where
457
00:28:11,980 --> 00:28:15,954
when you talk about bricking systems and things
that are gonna really scare you, they probably
458
00:28:15,954 --> 00:28:17,234
more rightly belong.
459
00:28:17,234 --> 00:28:21,634
But since the Switch doesn't appear to have
that dividing line, you get everything baked
460
00:28:21,634 --> 00:28:26,034
into the same agreement and you get headlines
like they say they can break your system when
461
00:28:26,034 --> 00:28:28,480
maybe they're claiming that, maybe they're not.
462
00:28:28,640 --> 00:28:31,440
Because when we look at the how PlayStation
describes these things, this is different
463
00:28:31,440 --> 00:28:32,799
lawyers for different companies.
464
00:28:32,799 --> 00:28:36,880
You see they describe the PlayStation Network,
and then if we go a little bit further on, we
465
00:28:36,880 --> 00:28:39,839
get the same language that says it's a licensed
concept.
466
00:28:39,839 --> 00:28:40,880
It's not sold to you.
467
00:28:40,880 --> 00:28:42,400
Every piece of software is licensed.
468
00:28:42,775 --> 00:28:49,095
And then importantly, it says in section 1.6,
top line item, first section, breach of these
469
00:28:49,095 --> 00:28:55,014
terms may result in the temporary or permanent
suspension of your console or your account.
470
00:28:55,095 --> 00:28:59,679
They specifically reference your console there
in the Sony terms of service.
471
00:28:59,679 --> 00:29:05,679
Now they also talk about suspension rather than
bricking anything or permanently disabling, but
472
00:29:05,679 --> 00:29:12,105
permanent suspension and permanently disabling
are not concepts that are different enough
473
00:29:12,105 --> 00:29:16,265
under my eye to say that they're different
concepts for this purpose.
474
00:29:16,265 --> 00:29:19,545
Now if we scroll a little bit further in this
particular license agreement, we'll see that
475
00:29:19,545 --> 00:29:22,505
suspension does sound a little bit different
when we get there.
476
00:29:23,519 --> 00:29:28,640
But as a top line item, Sony reserves the right
to do very bad things to your PlayStation five
477
00:29:28,640 --> 00:29:33,839
if they determine that you've breached some
aspect of this very long license agreement,
478
00:29:33,840 --> 00:29:37,085
including aspects related to community.
479
00:29:37,085 --> 00:29:37,325
Right?
480
00:29:37,325 --> 00:29:41,805
User generated content and how you interact
with the Sony community overall, which we've
481
00:29:41,805 --> 00:29:45,085
covered in virtual reality as a potential
problem because you shouldn't lose access to
482
00:29:45,085 --> 00:29:49,164
everything that you've spent money on because
somebody doesn't like a bit of language that
483
00:29:49,164 --> 00:29:53,160
you've used in chat at some point on your
PlayStation.
484
00:29:53,480 --> 00:29:55,960
But that's what this license agreement says.
485
00:29:55,960 --> 00:29:58,200
It says we can suspend you for all these very
bad things.
486
00:29:58,279 --> 00:30:01,240
You bear all risk of loss for the things that
you buy from us.
487
00:30:01,799 --> 00:30:05,845
You may not do any of these bad things that we
talked about with respect to the Switch terms.
488
00:30:05,845 --> 00:30:08,565
You may not reproduce or transfer content.
489
00:30:08,565 --> 00:30:13,684
Use the content for resale, public performance,
display, except as stated in this agreement.
490
00:30:13,684 --> 00:30:18,130
You may not create any derivative works, and
that becomes important for these conversations
491
00:30:18,130 --> 00:30:22,289
because when you are on Twitch, when you are
otherwise broadcasting on YouTube or wherever
492
00:30:22,289 --> 00:30:26,929
else you're playing your video games and having
people watch you, that is in all likelihood
493
00:30:26,930 --> 00:30:32,884
creating a derivative work under the law that
the various licenses that you've entered into
494
00:30:32,884 --> 00:30:37,845
when you purchased your license to your video
game probably didn't allow for expressly.
495
00:30:37,845 --> 00:30:40,884
Now there are some exceptions to that I've
talked about in virtual reality before, like
496
00:30:40,884 --> 00:30:46,230
Minecraft has a very broad piece of language
that says you can absolutely stream this, under
497
00:30:46,230 --> 00:30:47,589
some specific rules.
498
00:30:47,670 --> 00:30:53,190
But for the most part, the baseline rule when
you buy a video game is that you don't have the
499
00:30:53,190 --> 00:30:55,029
right to put it out there into the world.
500
00:30:55,029 --> 00:30:56,470
You don't have a right to do these various
other things.
501
00:30:56,470 --> 00:31:01,484
That's one of the reasons why you see things
get struck on Twitch when when you see things
502
00:31:01,644 --> 00:31:03,724
become an issue on YouTube.
503
00:31:03,724 --> 00:31:07,805
The limited license granted herein and all use
or access to the content is expressly
504
00:31:07,805 --> 00:31:10,605
conditioned on your compliance with these
agreements terms.
505
00:31:12,250 --> 00:31:16,170
Except for the rights expressly granted herein,
Sony, its affiliates, and everybody else that
506
00:31:16,170 --> 00:31:19,369
it's has an interest in reserves all of its
rights.
507
00:31:19,450 --> 00:31:23,609
Upon termination of this agreement, your
account or license to any content will
508
00:31:23,609 --> 00:31:24,569
immediately cease.
509
00:31:27,024 --> 00:31:30,384
Continuing on a little bit further, again, very
long document here.
510
00:31:30,464 --> 00:31:33,584
Console suspension with or without notice.
511
00:31:33,664 --> 00:31:38,304
We may restrict, suspend, or terminate your PSN
account and PlayStation device, your console,
512
00:31:38,799 --> 00:31:43,119
or indefinitely restrict, suspend, or
discontinue your access to or use of certain
513
00:31:43,119 --> 00:31:47,279
PSN content offerings, features, products,
services if you violate this agreement.
514
00:31:47,279 --> 00:31:49,680
Again, we can basically make that claim.
515
00:31:49,680 --> 00:31:49,839
Yes.
516
00:31:49,839 --> 00:31:53,774
You can sue us about the reasonability of that
claim, but that's really gonna be a problem for
517
00:31:53,774 --> 00:31:54,894
you more than us.
518
00:31:54,894 --> 00:31:57,374
With or without notice, we can turn your stuff
off.
519
00:31:57,534 --> 00:32:01,934
If we have a reasonable belief such a violation
has or will occur, again, there's that future
520
00:32:01,934 --> 00:32:05,614
looking thing, we think that you might violate
this agreement in the future.
521
00:32:05,694 --> 00:32:06,974
We have that reasonable belief.
522
00:32:07,109 --> 00:32:09,990
You have to prove it wasn't reasonable in order
to win your rights back.
523
00:32:09,990 --> 00:32:14,789
It's a whole problem for you if you have a
PlayStation five, but it looks the very same as
524
00:32:14,789 --> 00:32:16,710
what we are seeing in the Switch documentation.
525
00:32:16,710 --> 00:32:20,309
This has been the Sony documentation for a very
long time now.
526
00:32:20,474 --> 00:32:25,194
Upon termination of your account, you will not
receive a refund for items, value accumulated,
527
00:32:25,194 --> 00:32:30,874
or any unused balance in your wallet except for
some specific rules in specific jurisdictions.
528
00:32:30,954 --> 00:32:35,049
And upon suspension of your PlayStation device,
you will not be able to use that console to
529
00:32:35,049 --> 00:32:40,250
access PSN, play any games or game modes
requiring online access, or access any content
530
00:32:40,250 --> 00:32:41,609
purchased from the PlayStation Store.
531
00:32:41,609 --> 00:32:46,329
Now that honestly sounds a little bit less
problematic than what we see in the broad
532
00:32:46,329 --> 00:32:50,904
language used in the Switch document, but again
that's because Sony separates out its
533
00:32:50,904 --> 00:32:54,984
PlayStation Network account license from its
system software license.
534
00:32:54,984 --> 00:32:59,464
So if we go and we look at that document, which
we will right now, we can see some of the more
535
00:32:59,464 --> 00:33:02,424
scary language that you might be concerned
about if you're a Sony PlayStation player.
536
00:33:02,730 --> 00:33:06,650
This agreement applies to any system software,
firmware, and Internet browser software and
537
00:33:06,650 --> 00:33:08,970
other application included in your PS five
system.
538
00:33:10,490 --> 00:33:14,329
All rights to use system software are granted
by license only, and you are not granted any
539
00:33:14,329 --> 00:33:16,009
ownership rights or interest in system
software.
540
00:33:16,009 --> 00:33:16,569
Now that's normal.
541
00:33:16,835 --> 00:33:17,234
Right?
542
00:33:17,234 --> 00:33:21,954
You don't think that by buying a PlayStation
five, you suddenly have the right to the system
543
00:33:21,954 --> 00:33:25,714
software that's operating that PlayStation five
insofar as you could pull it from the
544
00:33:25,714 --> 00:33:27,794
PlayStation five and then sell it to someone
else.
545
00:33:27,875 --> 00:33:28,674
You don't have that right.
546
00:33:28,849 --> 00:33:33,250
Nobody's really confused about having that
right when you buy a console, but they have to
547
00:33:33,250 --> 00:33:37,650
put it in a license like this one so that it's
clear for the law if it ever came up in court.
548
00:33:38,049 --> 00:33:44,154
Continuing on, if SIE, Sony, determines that
you have violated this agreement's terms, Sony
549
00:33:44,154 --> 00:33:49,755
may itself or may procure the taking of any
action to protect its interests such as
550
00:33:49,755 --> 00:33:53,355
disabling access to or use of some or all
system software.
551
00:33:53,515 --> 00:33:58,599
Now it doesn't say it in as bright line in
black letter here, but if they disable access
552
00:33:58,599 --> 00:34:02,039
to your system software for your system, your
system is not gonna work.
553
00:34:02,039 --> 00:34:03,160
That is bricking a system.
554
00:34:03,160 --> 00:34:07,559
This is the same concept as what everybody is
worried about with the Switch as what GameSpot
555
00:34:07,559 --> 00:34:09,719
put up and said you don't own your Switch.
556
00:34:10,135 --> 00:34:13,735
I'm saying this so that we understand the
ecosystem, not that you have to be happy about
557
00:34:13,735 --> 00:34:17,175
what's in the Nintendo license agreement or
what's in the Sony license agreement.
558
00:34:17,175 --> 00:34:20,695
Just to note that this is happening across
technological devices.
559
00:34:20,695 --> 00:34:23,015
It's not limited to game consoles in any
respect.
560
00:34:23,015 --> 00:34:28,079
I used as an example earlier Medical devices,
this is a big issue with respect to whether or
561
00:34:28,079 --> 00:34:32,320
not the provider of medical devices can turn
those things off if they feel that somebody is
562
00:34:32,320 --> 00:34:36,239
violating the terms of service that they've
entered into to operate that particular device.
563
00:34:36,239 --> 00:34:39,744
And that's obviously more important than
whether or not you can play the latest Call of
564
00:34:39,744 --> 00:34:43,105
Duty, whether or not the MRI scanner can
actually be used on your patients in the
565
00:34:43,105 --> 00:34:43,664
hospital.
566
00:34:43,744 --> 00:34:47,585
But that's where these legal questions get
answered is with really serious, really
567
00:34:47,585 --> 00:34:50,385
important stuff, and they haven't been answered
yet.
568
00:34:50,465 --> 00:34:53,710
So Sony reserves the same right that Nintendo
now claims.
569
00:34:53,710 --> 00:34:58,750
Nintendo was already reserving that right in
their earlier terms of service, and yet we do
570
00:34:58,750 --> 00:35:03,950
not see a universe in which PlayStations and
Switches are just being bricked willy nilly
571
00:35:03,950 --> 00:35:05,950
because the companies decide that they don't
like you.
572
00:35:06,264 --> 00:35:06,744
Why?
573
00:35:06,744 --> 00:35:08,184
Because that's bad business.
574
00:35:08,425 --> 00:35:09,945
They wanna sell you Switches.
575
00:35:09,945 --> 00:35:11,625
They wanna sell you PlayStations.
576
00:35:11,704 --> 00:35:16,184
And because they wanna do those things, they
are unlikely to engage in just crazy bricking
577
00:35:16,184 --> 00:35:21,144
of systems, and you can consider yourself the
owner of the hardware that you have purchased
578
00:35:21,429 --> 00:35:26,150
even though there is this right that these
companies have established for themselves in
579
00:35:26,150 --> 00:35:30,309
their contracts and are likely to be upheld
because they have to be able to control their
580
00:35:30,309 --> 00:35:35,269
software and copyright prevents people from
infringing on that software in general.
581
00:35:35,269 --> 00:35:40,465
Now Microsoft is a little bit more confusing
here because Microsoft again is primarily a
582
00:35:40,465 --> 00:35:45,025
software company and they draft their licenses
primarily about their software overall.
583
00:35:45,025 --> 00:35:49,344
So they use a kind of broad umbrella agreement
to talk about all the software they might sell
584
00:35:49,344 --> 00:35:49,585
you.
585
00:35:49,585 --> 00:35:54,139
That includes everything from Windows to Xbox
operating software, and you have to kinda dig
586
00:35:54,139 --> 00:35:58,300
through various documents to get to what might
be of most interest to you, we can see an Xbox
587
00:35:58,300 --> 00:36:03,659
section here that says the Xbox online service,
Xbox Game Studio games, application
588
00:36:03,659 --> 00:36:08,015
subscriptions, and content provided by
Microsoft are only for your personal and
589
00:36:08,015 --> 00:36:09,135
noncommercial use.
590
00:36:09,135 --> 00:36:10,414
They're licensed in general.
591
00:36:10,414 --> 00:36:12,015
They're not sold to you, etcetera.
592
00:36:12,335 --> 00:36:16,815
And then the bit of language that's the closest
to what we're looking for here, for any device
593
00:36:16,815 --> 00:36:21,400
that can connect to Xbox services like an Xbox,
we may automatically check your device for
594
00:36:21,400 --> 00:36:26,119
unauthorized hardware or software that enables
cheating or tampering in violation of the code
595
00:36:26,119 --> 00:36:31,320
of conduct or these terms and download Xbox app
software updates or configuration changes,
596
00:36:31,400 --> 00:36:36,574
including those that prevent you from accessing
the Xbox services or from using unauthorized
597
00:36:36,574 --> 00:36:38,734
hardware or software that enables cheating or
tampering.
598
00:36:38,734 --> 00:36:42,894
Now that probably strikes most of you as a
little bit less controversial than what we were
599
00:36:42,894 --> 00:36:47,135
reading in the Switch license agreement because
this is only talking about cheating or
600
00:36:47,135 --> 00:36:47,614
tampering.
601
00:36:47,614 --> 00:36:52,119
But from a legal perspective, when you talk
about Microsoft deciding what tampering even
602
00:36:52,119 --> 00:36:56,840
means, that could easily be including the
concept of pirating software and the various
603
00:36:56,840 --> 00:36:59,240
other things that Nintendo now expressly calls
out.
604
00:36:59,320 --> 00:37:04,005
And you have to ask yourself whether you prefer
a bit of language here that probably covers the
605
00:37:04,005 --> 00:37:07,684
same same things that you're concerned about
but isn't as clear, or whether you prefer
606
00:37:07,684 --> 00:37:14,244
Nintendo being very brightly worded in what
it's saying it can do and at least having the
607
00:37:14,244 --> 00:37:18,170
fight now before the fight would really be a
problem in the future.
608
00:37:18,889 --> 00:37:23,769
My argument would be that I prefer that kind of
bright line, line in the stand, say what you
609
00:37:23,769 --> 00:37:25,449
mean in these kinds of provisions.
610
00:37:25,449 --> 00:37:30,464
Microsoft having this bit of language here
suggests to me as a lawyer the very same rights
611
00:37:30,464 --> 00:37:35,824
being claimed as what Nintendo's claiming and
what Sony's claiming, but reasonable minds can
612
00:37:35,824 --> 00:37:37,425
differ even on that score.
613
00:37:37,425 --> 00:37:43,140
The point is that this is basically the same
kind of license concept that you see across all
614
00:37:43,140 --> 00:37:47,059
systems, all pieces of technology that you
would buy in 2025.
615
00:37:47,059 --> 00:37:47,940
You don't have to like that.
616
00:37:47,940 --> 00:37:50,820
You can think that there are laws that should
be put into place that maybe prevent this or
617
00:37:50,820 --> 00:37:53,460
require you to go to court to enforce these
various things.
618
00:37:53,460 --> 00:37:55,059
I would be open to that conversation.
619
00:37:55,059 --> 00:37:59,615
Certainly, when we talk about bricking systems,
when we talk about cutting off system software,
620
00:37:59,775 --> 00:38:05,535
that sounds a lot like what we would talk about
in legal parlance as self help.
621
00:38:05,775 --> 00:38:06,335
Right?
622
00:38:06,414 --> 00:38:10,130
If you've sold something to somebody and they
didn't pay what they were supposed to pay, if
623
00:38:10,130 --> 00:38:14,610
there's some other reason that you have to go
onto their property and take back what is
624
00:38:14,610 --> 00:38:20,530
yours, then for the most part, the law looks
poorly at just going in, breaking and entering,
625
00:38:20,530 --> 00:38:23,890
and getting something even if it is rightly
yours under the law.
626
00:38:23,890 --> 00:38:24,849
We call that self help.
627
00:38:24,905 --> 00:38:30,505
Instead, we require you to go to the sheriff
and actually get the state or the jurisdiction
628
00:38:30,505 --> 00:38:34,905
that we're talking about to go and do that for
you so that we have some mechanism to prevent
629
00:38:34,905 --> 00:38:39,010
people from just being vigilantes and doing
whatever they feel is right because that's a
630
00:38:39,010 --> 00:38:43,170
kind of anarchic, not terribly useful way to
function as a society.
631
00:38:43,409 --> 00:38:48,449
And you can definitely argue that the way that
these licenses operate in real time is to allow
632
00:38:48,449 --> 00:38:53,444
these companies to have all this self help, and
we maybe need to have some protection against
633
00:38:53,444 --> 00:38:53,844
that.
634
00:38:53,844 --> 00:38:57,844
But it's important to know that Nintendo isn't
doing anything terribly odd here.
635
00:38:58,085 --> 00:39:04,660
It is in fact just drafting their document in a
more direct way by a lawyer that seemingly is
636
00:39:04,660 --> 00:39:09,219
more concerned about getting all of the
specifics on the page rather than leaving
637
00:39:09,219 --> 00:39:13,219
things to your own kind of imagination as
Microsoft and maybe even Sony to a little bit
638
00:39:13,219 --> 00:39:13,940
do.
639
00:39:14,180 --> 00:39:17,164
But that's what I wanted to say about this
topic.
640
00:39:17,164 --> 00:39:18,204
I think it's important.
641
00:39:18,285 --> 00:39:23,164
I really do think it's good that people are
taking more interest in what is in the licenses
642
00:39:23,164 --> 00:39:24,125
that they're entering into.
643
00:39:24,125 --> 00:39:26,364
That's one of the reasons that virtual legality
exists.
644
00:39:26,364 --> 00:39:30,765
And as I pointed out earlier, there are
headlines and articles about the fact that the
645
00:39:30,269 --> 00:39:34,030
end user license agreement language differs in
The United States and other jurisdictions.
646
00:39:34,030 --> 00:39:38,349
Part of that is because of the existence of the
DMCA and the circumvention of technological
647
00:39:38,349 --> 00:39:40,750
security measures provision that we talked
about earlier.
648
00:39:40,750 --> 00:39:42,030
Some of it is not.
649
00:39:42,190 --> 00:39:46,945
We can't really take anything as certain until
we know exactly what Nintendo wants to do with
650
00:39:46,945 --> 00:39:50,945
that provision, and we are unlikely to know
that in all reality because they're unlikely to
651
00:39:50,945 --> 00:39:53,105
do anything with that provision in my view.
652
00:39:53,184 --> 00:39:57,585
That said, if you enjoyed this content, if you
like hearing about things like the law and
653
00:39:57,585 --> 00:40:01,239
business of video games and other pop culture
items that you might be interested please
654
00:40:01,239 --> 00:40:04,920
consider supporting VirtuaLegality and this
channel on the whole through Patreon, through
655
00:40:04,920 --> 00:40:06,200
memberships to the channel.
656
00:40:06,200 --> 00:40:09,960
We do livestreams a lot and through super chats
on those livestreams.
657
00:40:09,960 --> 00:40:11,480
I appreciate every little bit of support.
658
00:40:11,480 --> 00:40:15,160
I can't do it without you, and I think we're
doing good work here to get this information
659
00:40:15,160 --> 00:40:15,960
out to more people.
660
00:40:16,464 --> 00:40:20,144
Otherwise, if you don't wanna do any of those
support mechanisms, that's totally fine.
661
00:40:20,144 --> 00:40:20,704
I get it.
662
00:40:20,704 --> 00:40:21,744
It's hard out there.
663
00:40:21,824 --> 00:40:25,264
Just subscribing to the channel for free,
telling your friends that we're having these
664
00:40:25,264 --> 00:40:27,664
conversations, every little bit helps.
665
00:40:27,664 --> 00:40:29,105
And please do check out Gamefile.
666
00:40:29,105 --> 00:40:32,550
I think Steven Tutello is doing good work over
there, and I very much appreciate him
667
00:40:32,550 --> 00:40:37,349
identifying these things even if I think some
of the websites, like GameSpot in particular,
668
00:40:37,349 --> 00:40:39,750
went a little bit too far with what he
identified.
669
00:40:39,829 --> 00:40:41,349
That's been Virtual Legality for today.
670
00:40:41,349 --> 00:40:44,070
Thank you so much for joining me, and I will
see you on the next one.
671
00:40:47,164 --> 00:40:52,684
Virtual legality is a YouTube video series with
audio podcast versions presented as commentary
672
00:40:52,684 --> 00:40:55,724
and for education and entertainment purposes
only.
673
00:40:55,965 --> 00:40:59,885
It does not constitute legal advice and does
not create an attorney client relationship.
674
00:40:59,880 --> 00:41:04,759
If you have legal questions about the topics
discussed, please consult your own legal
675
00:41:04,759 --> 00:41:05,239
counsel.
