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.

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."

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."

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.

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."

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."

The "coming soon on Giant Bomb" Schedule on the front page makes a certain quest much more attainable. 
 
Interesting read, I know I'm one of those people that just agrees with terms of service without thinking twice about it because I've never suffered any negative effects from doing so. It makes me wonder what kind of gamer horror stories are linked to this; They have the right to use these things but what are they actually using, how are they using it and how is it affecting actual people?

Eh I'm gonna be ok.  Hey someone's knocking on the door I'll be right back

Never gonna get that quest

really had to quote south park, patrick?

Im going to keep clicking "agree".

great article. Its a shame such user generated content is not really owned by the user. happens with far too much stuff. 

I think the point that "yeah, companies reserve the right, but they won't actually do it" isn't very comforting. Maybe they won't, but I would feel better about it if they didn't have the right to slap my personal pictures on some billboard somewhere even if they wanted to.

This is actually a running joke for me whenever I'm helping people install things. I'll start reading the first line of the ToS and then just interrupt myself to go "YOU AGREE."  
 
Can't wait for that to bite me in the ass!

Nice article

Honestly, Nintendo using my UGC is a lot less of an issue than Nintendo reserving the right to brick anyone's 3DS with a mandatory, unnotified firmware update.

People need to temper their rhetoric to an appropriate degree. It's really hard for me to get on board with calling these companies awful and deceptive when all they're saying is "Yeah, that shit you do in our game? That's ours." That isn't surprising and isn't sinister. In fact, that's pretty reasonable. People just accept "sinister" coupled with "corporation" regardless of context.  
 
By the way, South Park is great as comedy, dogshit as social commentary. It is the basest, dumbest, least observant social commentary and it speaks to people's awareness when they point to South Park.

Wait so as a citizen of the UK I won't have these clauses in my EULA? 
  
They can't touch my photos? PLEASE GOD TELL ME THEY WON'T TAKE MY PHOTO'S!

I will continue to click agree. I think creative content I've might have made in Halo Reach of Warioware DIY isn't really valuable enough for this to matter. Any one who can make something truly valuable out of these systems can surely make it outside of those systems with no hassle. I don't think anyone makes a LBP level with intention of making money of it. 
 
The only thing that could bother me is personal details/images being taken, but this is on a par with controversy across all social networking. The only thing that has made me actually a little concerned is that business with my iPhone telling apple where I've been lately.

things like this I always imagine that they're just opening the potential to stick user created content into some kind of advertising montage to show what's possible without worrying about having to pay for any of it. 
 
so it's kind of underhanded in a way, but at the same time, how many people really expect to get money out of any kind of user created content?

Food for thought.

Seems like a non-issue to me. Don't create anything on the 3DS that you don't want "stolen" from you, I guess. Chances are, even if you do, they won't steal it from you anyway. 

This is not very surprising. It extends much further than video games, and to be honest video games is the least obtrusive aspect of this "user created rights" situation. If I create a level in Halo forge mode its somewhat implied that I never owned the level nor should I. If I personally owned all the materials to build a house and said "anyone who wants to can come build anything with these materials" it doesn't mean they own what they build. They have used my possessions to build an object, by manipulating them they don't obtain the materials for themselves. Where this situation gets really dodgy is in university and companies. Anything you design whilst studying at university belongs to the university, and its not uncommon for large corporations include terms in the contract ensuring that products designed by the employee are owned by the company. Thats a completely different situation because I'm not creating something with another's property. I'm creating something off my own steam and the factual presence of where I design it removes my ownership. Now thats scary.

so you watched southpark recently, good for you.

Don't see why this is all worthy of a huge news post.  We all know the corp crap thats put in stuff like that and 95% don't have to worry about any of it.

I think that, should this every wind up in a court, it should be required that the EULA be presented in the same manner in which it was presented when accepted.   So if it's a 3DS EULA, the judge has to read the whole thing using a 3DS.  The lawyers have to reference sections with their 3DS.  Regardless of the legality of claims made in the EULA, this would show that the terms were not presented in a fair and honest manner, but in a way that would encourage to just "CLICK ACCEPT".

Good bit of investigative journalism.  Well done, Patrick!

There was a similar hub-bub a while ago about AOL Instant Messenger. Their TOS said they had rights to save and use any bits of any conversation you had on their service. I don't know if this is still the case, or how TOS change using other clients like Trillian or Pidgin.
 
But past performance predicts future performance. I have a feeling that what this clause is usually used for is allowing online showcases. They're just using the right as "you agree that we can share it to other players." Then there's times like Trials HD's user track pack DLC. When one of your tracks is picked up and used in there, I think people usually feel good that their work got accepted.
 
This kind of clause also doesn't say that a company is forced to abuse the users. If a company wants to keep players, odds are they won't. Legalese is basically built around the premise of covering ones own ass in every and all ways. In practice, companies will want to be fair, and keep players and content creators around. Rewarding them, acknowledging them, and keeping them feeling good. That'll keep them around, generating content, entertaining other players, and basically doing work for them.
 
The difference between "using" and "owning" can mean a lot here. Because the creators maintain ownership, even if a company is using it somehow, that doesn't prevent the owner from using it in his own ways. Griffball has been picked up and distributed to all Reach players, but then there's the Griffball hub website(s? I'm not checking anything here, btw) that let the creators follow up, maintain a lot of control over their work and the community surrounding it.
 
Just looking at what's been done before, I can't really think of anything particularly egregious that companies have done user created content. The worst I could even imagine is use without credit. But if something made is spectacular enough, the company may want to track down and pick up the creator, and not just what they created.

No Nintendo, I own YOU!

Kind of seems like a non-issue to me. Sure the agreements are broad, but it's not like Nintendo is going to show up at your house, seize your 3DS and publish the photos you took of your junk. It just seems like something they put in to cover themselves if someone happens to make a really cool level in a game, and they want to use that in a promotional way. In my opinion they should have that right. Until they do abuse it I have no reason to believe it's a problem.

It should also be noted that EULAs have widely been found to be unenforceable. Any product that you buy without having to sign a licensing agreement (ie- a shrink-wrap license or click-wrap license) is almost completely unenforceable.
Please reference Klocek v. Gateway and Brower v. Gateway for defining cases. Since one basically 'agrees' to the Nintendo (and Sony and Microsoft) licensing conditions simply by buying the product (with no prior notification of said contract at time of purchase), they are likely to be completely unenforceable (see also Specht v. Netscape Communications Corp.).

Thank yo for bringing this to attention Patrick. This is the kind of stuff that everyone needs to be aware of and that people need to vigorously fight against. Glad to see a group like Defective by Design out there.

I don't really think i'd really care about this if they claimed something I actually thought was worth selling on my own. 

I know it's a business and companies need to make money to continue to make games, but why can't more companies do the "right thing".  Instead of just always fucking people over and listening to the god damn lawyers.  Fuck lawyers.
Do the right thing and people will buy your shit.  As long as your shit isn't shit and you're not a fucking asshole about it.  At least that's what I'd like to believe.

If user generated content being submitted to the holders is not legally bound to them then that is inviting a whole lot of potential trouble. From a legal point of view you cannot cover your bases enough from the potential for a noisome fellow that suddenly feels entitled and thinks they have a right to be compensated for the content that they made, and voluntarily submitted.
 
In short, Nintendo is not in the business of being a evil bully, that would ultimately be bad for business, just click agree.

Ugh, shit, the formatting on those quotes is fucked. The bold is just...wrong.

Sounds like the Fee Software Foundation's argument is more defective than anything.

Yeah, hey, guess what? You can't sell your Miis or the levels you make in Little Big Planet as standalone products.
 
Are people really surprised to learn that?

There's legal premise as well protecting consumers from complicated legal language buried in EULAs and TOSs. 
 
I'd also say that if you have an idea and are thinking you'd like to make money on that idea, you should consider how much of that money will also go to legal costs, or your own education.

An interesting topic for sure. It's scary that the language used seems to just a blanket statement saying: "we can use any user content and/or information for any reason no matter what."

This being the World Wide Web and all, I would be interested in the situation in Europe. Don't be so US-focussed ...

Don't see why this is all worthy of a huge news post.  We all know the corp crap thats put in stuff like that and 95% don't have to worry about any of it.

Patrick, your articles are awesome.

So many other corporations own my ass, that it really doesn't matter anymore. I wonder if the Unabomber's house is still up for sale.

This IS complicated.
 
They're probably just making sure some knuckle-head out there doesn't sue em for somethin stupid.

Even better, most of Nintendo's market is children. In most states, minors can't agree to any legally binding contracts.  The entire EULA is mostly useless. When real legal issues arise they are quietly settled out of court by expensive lawyers.

Looks like this one just made the FUD Tracker over at the TM Repository. 
 
http://tmrepository.com/fudtracker/fsf-claims-nintendo-wants-your-soul/

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. That doesn't mean you guys are evil or are going to misuse content I submit to the site, it's just covering your ass so someone can't sue you for a dumb reason. These things have to exist.

Yes, it's stupid that companies have to do it, but as long as a suing culture exists in the world it's going to continue. It's not Nintendo's fault and it's not Whiskey Media's fault that they have these agreements. It's the fault of idiots suing everyone left, right and centre to try and make a quick buck, and it's the fault of governments for not providing legislation to stop idiots suing everyone left right and centre to make a quick buck.

Well written article.
 
I think it will take a court room to decide if Nintendo has jurisdiction to own content created by a minors. The use of and ownership of pictures of children is just one example where this type of language could creep up and backfire on them.

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 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. That doesn't mean you guys are evil or are going to misuse content I submit to the site, it's just covering your ass so someone can't sue you for a dumb reason. These things have to exist.

Yes, it's stupid that companies have to do it, but as long as a suing culture exists in the world it's going to continue. It's not Nintendo's fault and it's not Whiskey Media's fault that they have these agreements. It's the fault of idiots suing everyone left, right and centre to try and make a quick buck, and it's the fault of governments for not providing legislation to stop idiots suing everyone left right and centre to make a quick buck.

This is the reason why Velocity Girl never prospered on consoles.