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Nintendo Owns Your Soul: What That Complicated Legal Language You Don't Read Actually Means

What do those long legal agreements that you blindly agree to actually mean?

No Caption Provided

200 cardboard bricks are en route to Nintendo of America president Reggie Fils-Aime to send a message. It's part of a "Defective by Design" campaign from the Free Software Foundation calling attention to Digital Rights Management (DRM) and fighting against what it considers unfair DRM policies. The campaign generated headlines last week for pointing the finger at Nintendo's policies for 3DS.

All hardware and software comes with legal copy that most skim past, far more interested in consuming what they paid for. Hell, South Park just lampooned society's disposition towards passively accepting whatever corporations put in front of us, as long as the product is good enough. It was hard to take Defective by Design seriously, given it's an advocacy group with a clear agenda. Nintendo has an agenda, too, but is it anti-consumer? I'm someone who clicks "I agree" like most of you, but I also wanted to know more.

Defective by Design was upset for several reasons, including Nintendo claiming massive rights over content created by users on 3DS, including photos and videos. Here's the passage about copyright, lifted directly from the 3DS' End User License Agreement on Nintendo's website:

"By accepting this Agreement or using a Nintendo 3DS System or the Nintendo 3DS Service, you also grant to Nintendo a worldwide, royalty-free, irrevocable, perpetual, non-exclusive and fully sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display your User Content in whole or in part and to incorporate your User Content in other works, in any form, media or technology now known or later developed, including for promotional or marketing purposes."

User content, in Nintendo's words, means "messages, images, photos, movies, information, 3DS user names, Mii, Mii nicknames, names of creators, and other names." It's a broad scope. In laymen's terms: Nintendo has a license to the content you've created and do, well, stuff with it.

"The Nintendo 3DS is a useful target for our campaign because the Nintendo Terms of Service state so clearly what kind of power they believe they deserve to yield over a user," explained Defective By Design campaign manager Joshua Gay to me in a recent email. "This does not make them any better or worse than Apple, for instance, but, Nintendo does make our job a little easier in some ways, since we can simply quote their own Terms of Service to show the world just how awful they are. This is an important aspect of the Defective by Design campaign--making as many people as we can aware of DRM technology and presenting our case as to why we believe it needs to be eliminated."

Legalese seems scary because it's tough to understand what it means. What sounds strangely demanding may have more to do with the company in question covering their ass--and yours. Or maybe not. Maybe corporations adopt such strict and impenetrable language to allow themselves more room to enforce rules as situations call for it. I'm not an expert, just a reporter shooting from the hip. Luckily, it's not that hard to get in touch with people who know much more than I do.

== TEASER ==
When you make something in LittleBigPlanet, that creation's not entirely yours.
When you make something in LittleBigPlanet, that creation's not entirely yours.

Defective by Design is attacking Nintendo and others for many reasons, but since so many games incorporate user content, to make better sense of this, we're going to focus in on the rights of corporations over the content you create within their experiences, hardware or software. There is a significant difference between "own" and "use," as a gaming versed lawyer I spoke to clarified.

"The initial issue is separating copyright ownership from a copyright license," said Andrew Ehmke, an attorney at Haynes and Boone. "The ability to use the content (a license) is different than owning the content (the owner can stop other people from using). Most terms of service that cover user-generated content will include language that effectively states that the company can use the user-generated content--although, the extent of the use will vary significantly."

Ehmke said I'd find similar language in both Microsoft and Sony's own user agreements. And?

Yup.

What if you make stages in LittleBigPlanet...?

"In addition, you will have the option to create, post, stream or transmit content such as pictures, photographs, game related materials, or other information through PSN [PlayStation Network] to share with others (User Material), provided no rights of others are violated. To the extent permitted by law, you authorize and license SCEA [Sony Computer Entertainment America] a royalty free and perpetual right to use, distribute, copy, modify, display, and publish your User Material for any reason without any restrictions or payments to you or any third parties.

...or make a game mode in Halo: Reach's Forge mode?

"With respect to content you post or provide, you grant to those members of the public to whom you have granted access (for content posted on shared and private areas of the Service) or to the public (for content posted on public areas of the Service), and, in either case, to us, free, unlimited, worldwide, nonexclusive, perpetual, and irrevocable permission to: use, modify, copy, distribute, and display the content in connection with the Service and other Microsoft products and services; publish your name, Gamertag, or other information you supply in connection with the content; and grant these rights to others."

That all sounds awfully intimidating. No one could blame you for not knowing what the hell the above statements actually means, wondering for a moment if game companies are tricking you into giving up your rights, and deciding to just move on and play the game you just bought.

"How often do terms of service that address UGC [user generated content] then also include language giving the company the ability to use that UGC?" asked Ehmke. "The answer is almost all of them."

Still sounds scary, but as Defective by Design suggests, are companies taking advantage of you?

"I agree also that the contractual language within the ToS [terms of service] of not just the 3DS but most gadgets are somewhat scary when translated into laymen terms," said Electronic Entertainment Design and Research analyst Jesse Divnich. "However, some of the suggested implications made in regards to the 3DS ToS are pretty farfetched. Nintendo is not going to steal your pictures for their own use. I don’t care what the language says, Nintendo won’t conduct in such a manner."

Kyle agreed to way more than he bargained for (like getting stitched to another human) via iTunes.
Kyle agreed to way more than he bargained for (like getting stitched to another human) via iTunes.

Naturally, Defective by Design holds a slightly more sinister view of the situation.

"The 3DS is not all that different from other mobile devices that rely upon a combination of legal and Digital Restrictions Management technology to force users to give-up control of their device," said Gay.

You've run the gauntlet with me, reader.

What are we to make of this? It's complicated. In Europe, for example, the laws do not allow companies licensed rights to user content--photos, movies, whatever. That's not the case over here, but that doesn't implicitly mean every company that includes what's obviously boilerplate legal language is up to something sinister. Little of the evidence points in that direction, but I have to imagine Defective by Design would take issue with such a cavalier response.

There's little reason for status quo change unless consumers demand it. That doesn't tend to happen until a company grossly crosses the line. Campaigns like Defective by Design hope to call attention before bad things happen. If South Park's right, though, we'll all keep clicking "I agree."

Patrick Klepek on Google+

138 Comments

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danielcampbell

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Edited By danielcampbell

Ummmm. It damn well should NOT be your property. It's like people who sell their WoW characters. Sure you put in the work to level the character, but did you model that character? Rig it with animations? Code the world? Model the gear? Script the AI? ETC? No? Then it is not yours to sell! Same with LBP. You did not create the tools or assets, so it is not your property. 

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TechnoHermit

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Edited By TechnoHermit

Great article! I think most companies use wording like the above because they generally own the right to the software the user creates content on. They don't want people thinking the users have any rights of ownership over anything involving their software.

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sweep

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Edited By sweep  Moderator

Well... who here read the Terms Of Service on Giant Bomb? Because I sure as fuck didn't...

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SpudBug

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Edited By SpudBug

Honestly don't care. 
 
If anyone expected to make millions off creating levels in little big planet they are clearly mistaken. User generated content tools are there only to enhance your experience with the game, not as a tool for creation like photoshop or Illustrator. 
 
Even Student Licenses for Photoshop and Illustrator don't give you license to sell the content you create with them. Expecting a videogame to give you such is foolish. 
 
This group is a joke and they just focus on the "problems" with popular devices to get attention. 

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phish09

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Edited By phish09
@AcidCrashX said:
great article. Its a shame such user generated content is not really owned by the user. happens with far too much stuff. 
Well, to be fair, most "user generated content" is just people messing around with content provided by the publisher.  It's not like users are ever involved in any aspect of the coding or developement of the game.  In Little Big Planet and Halo: Reach you are using tools generated by the developers to "create" levels, but you're not really "creating" anything, you're just modifying things with the tools provided to you.  It's like in Fallout 3 your decisions can shape that world (ie. Blowing up Megaton or not), but that doesn't mean that you created the Fallout universe and have any right to sell that game as your own.
 
I agree that if you make a game from scratch you have should and will own the rights to that game, but if you're just using assets and tools that you did not develop on your own then you shouldn't really have any right to own that content.
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FacestabMan

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Edited By FacestabMan

Well, if Nintendo wants to listen to my collection of classic rock, why not!

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CosmicQueso

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Edited By CosmicQueso
@MattyFTM: So wait... Anime Vice AND Nintendo own my soul?? OMG.  Hopefully Norman Chan doesn't want to put it through a coffee grinder.
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Sin4profit

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Edited By Sin4profit

Good stuff Patrick. But, yeah, it's no doubt something they have to put in to cover their asses.  
Could you imagine one guy suing Nintendo because he saw a generic looking Mii in a first party Nintendo game that looks EXACTLY like his generic looking Mii? 
I can see that happening much sooner then Nintendo making Wario Ware games out of user's pictures.

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Getz

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Edited By Getz

Guys, this kind of thing has been happening for ages now. Youtube has owned the rights to your shit since it's inception. It's their right to enforce a contract that YOU sign; so if you have a problem with it then you don't buy or use the device. Boohoo, I can't sue Media Molecule for the rights to my LBP space invaders clone! If they were doing anything that violated your civil rights then you bet your ass there'd be lawsuits up the ass, but they're just protecting their investments. They spent the money creating the product; they want to maximize the profit on that product. 
 
Now, if fruity loops started confiscating the rights to songs made using the software, that'd be pretty fucked up.

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BlazeHedgehog

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Edited By BlazeHedgehog

It's definitely a tough thing to think about. On one hand, I can see why these companies would have clauses like these in their Terms of Service; it gives them easy access to promote cool things users make with their tools, but it's also a lot of power that's ripe for exploitation.
 
What frustrates me more is EULAs. EULAs frequently like to claim that you are only licensing software, not owning it outright. And a lot of proprietors of these scary EULAs are the same guys writing these Terms of Service agreements, proving that these corporations are willing to abuse power given to them.
 
And that's generally what happens, isn't it? These companies take whatever extreme measures to ensure the highest profit margins, even it means treating the consumer like a door mat. There have been too many examples of this happening. Any sufficiently large company always cares about money more than they do the rights of a few consumers that manage to get trampled in the fray. Period.
 
If there's legislation in the UK to prevent this kind of exploitation, why can't we adopt it? Shouldn't the fact that it was already apparently exploited in the UK prove that it could happen again here? I think that's all the reasoning I need.

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Sin4profit

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Edited By Sin4profit
@Sweep: Apparently @MattyFTM: did.
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DeF

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Edited By DeF

I agree.

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patrickklepek

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Edited By patrickklepek

Hah! I never even thought of Whiskey's own ToS. Good point, guys.

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Legend

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Edited By Legend
@MattyFTM said:

It really doesn't bother me. Every company does it. Just look at this quote taken from the Whiskey Media Terms & Conditions:

When you post or transmit content on or through the site, you grant Whiskey Media and our affiliates and partners a nonexclusive, perpetual, irrevocable, worldwide, sub licensable, royalty-free license to use, store, display, publish, transmit, transfer, distribute, reproduce, rearrange, edit, modify, aggregate, create derivative works of and publicly perform the content that you submit to the site for any purpose, in any form, medium, or technology now known or later developed. You also grant us a license to use your name, city and state in connection with our use of any content you provide to us. You also consent to the display of advertising within or adjacent to any of your content.

That is remarkably similar to Nintendo's statement. The legalese is almost identical, and the "You also grant us a license to use your name, city and state..." clause makes it sound even more sinister.

They tricked us into agreeing on this.. LET'S BURN THIS 'EFFING PLACE DOWN!!!
 
:P
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mnzy

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Edited By mnzy
@Wuddel said:
This being the World Wide Web and all, I would be interested in the situation in Europe. Don't be so US-focussed ...
I read that alot of those user agreements are basically worthless here in Germany, because the terms are against the law. They usually are based on US-law where you can abuse users alot more.
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vigorousjammer

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Edited By vigorousjammer

I don't think there's any problem with these restrictions on user-generated content in games.
 
The real problem is with DRM.  When we purchase something and only have a license to use that product.  I'd much prefer something that says I actually own it, and can use it as I please, as long as it's not for public display, like the FBI warnings at the beginning of DVDs.
 
Why should anything change for the digital download market? Keep the legal terms like it has been for years on Cd's and DVD, VHS and Vinyl.

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DG991

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Edited By DG991

Whiskey Media, stop this horrible abuse! I want my city back!

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Kyreo

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Edited By Kyreo
@Atramentous said:
Im going to keep clicking "agree".
Yeah I've  got no problem with agreeing to shit like this.  No skin off my nose.
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selbie

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Edited By selbie

The fact is, Nintendo and all the other companies mentioned have creative license to the platforms/software that players use (after all it was the hard work of people in those companies who created it in the first place). Obviously there are also laws that protect people's creative work from being hijacked by said companies because, for instance, that person used a DS to produce it. Yes the company can claim a certain amount of credit for the hardware/software the person used, but it does not give the company the moral rights to the player's creation itself. Companies like Nintendo are just making sure their own side of the creation is protected from misuse. So when you accept their agreement, you are simply agreeing to let Nintendo take credit for their own IP and use the publicity you get from your creation to show how amazing their product is.
 
I think DbD is going a little too far with this. Sure their motive is admirable, but they are not seeing the forest for the trees.

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lavaman77

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Edited By lavaman77

I sold my soul to Microsoft a long time ago so the joke's on you Nintendo!

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Goldanas

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Edited By Goldanas

The idea behind these clauses is that the companies can then have marketing material with your product in it along the with user's handle. It's also to prevent the situation where some users might go and claim, I made this, so I should get money for it, and file a claim for it. Games have non-commercial licenses associated with them.
 
If an issue of personal information or devious behavior ever came up, regardless of what the clause says, any company would catch a ton of heat for it, could even be sued, despite legal contracts. Just look at the fiasco with Sony.

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polyorpheus

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Edited By polyorpheus
The basic fact is that copyright in the network/general computing age is broken. The same standard that is put on companies is put to individuals. Why do we have to agree to a licensing agreement anytime we want to use a product? And why can't we negotiate the terms of agreement? A great remedy would be to have a standard for terms of service akin to Creative Commons. When I see a Creative commons license that describes in a couple of words (e.g. Attribution-Share Alike-Noncommercial) what I can and cannot do, it means I don't have to read the entire license. It would be great if ToSs were standardized in the same way.
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TadThuggish

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Edited By TadThuggish

The lesson here is: Pick your battles.

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semicolon1twlev2

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Edited By semicolon1twlev2

This isn't all that surprising.  Of course making shit in their games using their tools and publishing it on their servers will have some legal agreement beforehand explaining that they own all the rights.  It's to be expected that they could do that.  How do you think Zombies became a gametype in Halo?  Or Grifball?  The point is, they're not going to ask for your permission to advertise something you made when it's in their game in the first place. 

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Zelnox

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Edited By Zelnox

Don’t Facebook have a licence to people’s photos that they upload to? That is a much popular service than any of the game consoles.

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Shaanyboi

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Edited By Shaanyboi

Oh no... Nintendo has the rights to the dumb photos I've taken of my cat.  What diabolical, sinister things are they going to do now?! 

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vilhelmnielsen

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Edited By vilhelmnielsen

How does ToS' hold up in court? There's no verbal or physical contract to refer to.

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StingerMK2

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Edited By StingerMK2

i HATE the idea that anyone owns anything when it comes to creative content, the fact of the matter is, if someone did claim ownership over it, what is stopping anyone else creating exactly the same thing in there own game? its knit picky western commercial bullshit laws, 
 
its like saying Gibson own the guitar riff to sweet child of mine, and whilst i appreciate GnR (or more likely sony or whoever their record label is) do own the commercial rights to the song, there is absolutely NOTHING stopping me sitting here and playing it on my guitar. except, you know... ability

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Vexxan

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Edited By Vexxan

Great article :)

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MudMan

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Edited By MudMan
@VilhelmNielsen said:
How does ToS' hold up in court? There's no verbal or physical contract to refer to.
Poorly, especially in Europe. In practical terms it's more ass covering to prevent YOU from suing THEM for freely distributing what would otherwise be your IP or from demanding royalties for it. And even that, depending on where you are, would not make for a compelling case. 
 
For instance, where I am, authorship is considered an intrinsic right, and a corporation can't hold it. They just hold the copyright. But authorship of an audiovisual piece gives you a right to a percentage of the income it generates. That's law, and you can't override it in a contract. Of course you don't want to do that, because then everything from Youtube to Nintendo would have to back away from the country and I'm pretty sure congress would overturn the regulation as it is right now.
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Mcfart

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Edited By Mcfart

....I'd like Nintendo to try to find a use for my ugly mug and the crap I don't bother creating in games like DIY and LBP...

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Jazz_Lafayette

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Edited By Jazz_Lafayette

Hey, Patrick? Whatever credit you get for these long, in-depth tangents into the corners of the gaming world isn't enough. I fucking love this stuff, man.

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FourWude

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Edited By FourWude

I'm sick of the man. 

The man needs to be taken down once and for all.

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Brackynews

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Edited By Brackynews

One of these days some developer is going to get ballsy and let people attach a Creative Commons to UGC.
Oh, wait...

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CharlesAlanRatliff

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I'm not bothered by stuff like this at all. Great article, though. 
 
Oh, and South Park is great.

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Example1013

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Edited By Example1013

As long as they don't own my usernames, I'm fine. Also, since this is a ToS agreement, I can terminate it by just not using their service anymore, I'd imagine.

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dvorak

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Edited By dvorak
@TadThuggish said:
The lesson here is: Pick your battles.
Exactly. 
 
It's not like anyone can actually leverage what the larger corporation is going to do, most people simply don't know enough to care, or just flat out don't. It's just not a significant enough thing to waste this much time over. There's a million more important things to get up in arms about, if you are so inclined.
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TheMustacheHero

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Edited By TheMustacheHero

So they can make games that use our Mii names and photos? 
 
Neat. 

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FCKSNAP

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Edited By FCKSNAP

This is trying to prevent someone suing Nintendo for making something someone may also have made using UGC tools. That's the way I've seen these things in the past.

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fox01313

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Edited By fox01313

Interesting read though I'm glad I often point the camera at myself, so Nintendo can't have my soul when it's stolen by a camera and/or future girlfriend.

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xpgamer7

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Edited By xpgamer7

This is the question of holding power versus using it. Nintendo(/other companies) holds the power but won't use it unless they feel they need to. We rely on groups such as defective by design to read and interpret these texts because we won't ourselves. Otherwise we'll keep clicking agree because we paid for our devices.

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reddjoey

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Edited By reddjoey

Great read Patrick.  

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pekoe212

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Edited By pekoe212

This actually reminded me of a case a few years ago where the photo of a girl was uploaded by the photographer to Flickr, an ad agency saw it, and put it in a Virgin Mobile billboard campaign in Australia which used her image in a rather mocking way. This isn't the same as game ToS agreements, but perhaps a bit worse since the girl herself didn't agree to anything except having her photo taken. However Flickr data is public domain, so just by uploading photos you give up rights to them. It's disturbing to think of having no legal control over how your image is used, and having others possibly make a profit from it.

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MisterMouse

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Edited By MisterMouse

cool little feature post.

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geirr

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Edited By geirr

So why do the US agree to this again?

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Siphillis

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Edited By Siphillis

Hate to agree with Mark Zuckerberg, but few people these days care about privacy.  Gets in the way of Internet stardom, probably.

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DonPixel

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Edited By DonPixel

I just don't like Nintendo everything they do.. ughhhh 

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gogobomb

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Edited By gogobomb

some of these legal contract  things do seem a little absurd, but i dont think that they are a reason to freak out about them this much

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pickassoreborn

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Edited By pickassoreborn

Interesting article, Patrick.
 
Just wondering if these words I'm typing now belong to me or to Whiskey Media, though...

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Xeridae

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Edited By Xeridae

As someone who grew up with Nintendo and had a NES as soon as they became available in the US, I feel that Defective by Design are not only being completely ridiculous but ungrateful as well. Nintendo has NEVER misused my personal information or tried to use anything I have created using their products without my consent (to my knowledge which really that is all that matters because if they put my mii or something else I made on a billboard I would know and quit frankly they never would, this is definitely CYA terminology). As far as I am concerned, I don't even want to think about what the state of the video game industry would be like without Nintendo so for any of these Defective by Design assholes to suggest that Nintendo is "awful" is just hyperbole especially if any of them are gamers. I am not absolving Nintendo of any wrong doing in their history I am just simply saying that they are not "awful" and they were the true pioneers that championed great games we all love/loved. Atari gets my respect but the NES made Atari look like a complete joke.