While it may be true that they can potentially use basically any and all UGC, does anyone actually have a single example of them doing this? I sure as hell don't.
 
The most likely reason is to cover their asses. We live in a world where people can spill coffee on themselves at McDonalds and sue them... and WIN, or drink Red Bull and jump off a roof and sue because they didn't get wings. That's why companies have to be so extremely thorough in their warnings, ToS's, ToU's, etc. Its better to have some legal scapegoat writing to avoid a multi-million dollar lawsuit then risk losing a ton of money by not having it.
 
So, while its kind of sketchy, we haven't seen any cases of companies using anything covered in that legal text for any purposes thus far, and until we do, I'll continue not worrying about it.

good thing I decided to skip on Nintendo / Sony handhelds this time around.

actually, if you want your name and avatar to be visible online to other people when you have a top score or whatever, then they need to have their asses covered with something like this, otherwise some a-hole could post a top-score and then sew nintendo/sony/microsoft for using "his" name or avatar without his permission or some such bullsh!t. All those neet little things you all love that xboxLive does would be "legally dangerous" for the company if they didn't have their asses covered. So stop wining.

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

The one thing about this that does genuinely bother me is where Nintendo says that your warranty is instantly voided if your 3DS is bricked by any means. Including a firmware update. Which your 3DS (in theory, at least) is required to accept.
 
Considering Nintendo has a bit of a track record of bricking unmodified systems with firmware updates (see the WII), this means you're stuck with a handheld that Nintendo may randomly brick with a firmware update no matter what you do, and you're stuck with the repair bill for it even if it happens the day after you bought it.
 
No points for guessing what the first thing the homebrew community is going to try and remove is.

@VilhelmNielsen said:

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

The judge refers to the stacks of cash and finds that adequate evidence to rule in favor of the corporation.  Anyway, since no negotiation in good faith between both parties took place EULAs should not be valid contracts.  Unfortunately some of them have been found valid in the courts.  Disturbing and filthy.

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.

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. 

Nice article, Patrick.

A lot of people here are being all "oh Nintendo would never do something like that to me!"  Wait until one of these companies do start using your shit, see how non-chalant you are then. Companies don't exist to be nice to you, and if they see it as being in their best interest, they'll fuck you raw. Just because it may not have happened yet doesn't mean it'll never happen.

Lameness all around, but is this really news to anyone?

Thank you for writing this up. 

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

Corporations will corporations.  :/

I agree with arguments defending our rights against some companies' ToS. 
We've heard from the consumers' perspective. Now I want to hear what the companies' defense is in all of this.

Hmmm... Very interesting Patrick. 
Does anyone know what it is that Apple has done that is so awful in their terms and conditions? 
 I own a macbook and I'd like to know, as I have accepted plenty of their terms without reading. I also saw that South Park episode and thought it was hilarious (as most of them are). It did cross my mind that these terms and conditions should be kept an eye on. After reading this That SP episode doesn't seem like such a ridiculous exaggeration anymore. 
BTW does this apply to a Nintendo DSi XL? I own one. I'm assuming it does.

 @Xeridae said:

You must be joking. The second they start abusing consumer info like this that's the moment they've decided to commit corporate suicide because no one will trust them again. As someone else pointed out this is more to cover and protect themselves.

Yep, because that whole rootkit thing killed Sony stone dead, didn't it. Consumers will forget virtually any corporate transgression as long as the products still push the right buttons.

If I legitimately buy something, I am not going to let a TOS get in my way from actually using it. Also, even if you agreed to one of these TOS's, those companies won't violate any serious ethical boundaries in regards to user created content. The worse they will do is what Bungie has done with certain game-types, and I see no objection to their actions so all is well.

you don't really have a choice... either agree to the Terms of Service or don't use there product... I just click agree, i have other things to worry about than whether or not Nintendo is going to publish the 3D photo of a plant to took to show off the 3D camera to a friend...

actually, if you want your name and avatar to be visible online to other people when you have a top score or whatever, then they need to have their asses covered with something like this, otherwise some a-hole could post a top-score and then sew nintendo/sony/microsoft for using "his" name or avatar without his permission or some such bullsh!t. All those neet little things you all love that xboxLive does would be "legally dangerous" for the company if they didn't have their asses covered. So stop wining.

Who gives a fuck? This is just making a storm in a teacup, Nintendo is doing this to combat piracy and legally cover their asses but they won't fuck you over. 
 
It ain't  like Nintendo is going to use the stupid photo of your fucking dog or your dumb face that you took with your 3DS for a billboard. If Nintendo needed a photo of a dog or a dude they would get the prettiest dog and dude in the planet and take photos of that for use in their whatever they might be doing. Not only that but  even if an official update bricked some systems it would happen to multiple systems and Nintendo would acknowledge it and fix it, it would just be bad business for them to do otherwise.

Good thing this doesn't apply to Europe, though.

Trying to care, failing.  
 
LittleBigPlanet, Halo and any other game with user-generated content would not be able to exist at all if every asshole that used the creation tools had the right to assert ownership over his creations. 

Most websites also in their Terms and Conditions also make you give license to the site to do what it wants with your user content... Including our very own Whiskey Media. So it isn't like Nintendo is doing anything out of the ordinary here.

"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."

Anyone hear of these things being challenged in court?  I know that accident waivers and stuff have been challenged and don't always hold up.

"...said Gay"

I don't really know why people get hung up on these blanket legal agreements. All these paragraphs do is protect the company from suits when they use user-created content in promotional materials.  That's their clear purpose.
 
As one of the creators chosen to create a level for the GOTY edition of LittleBigPlanet, I was compensated for my work on the disk. The point of that content was to show offline customers an example of what the community was doing with the game's level-creation tools. Therefore, even with the above language in their user agreement, SOE did not simply take user-created levels and sell them. On the other hand, they do put user-created levels in their game trailers, something I don't think they ask permission for (directly). So in practice, I think that SOE is respecting the creators time and effort, even if this bit of legalese implies that they don't have too.   

In my opinion, the language of an agreement alone is fairly meaningless. Nintendo is not going to turn around a copyright your original characters because you named your Miis after them, and then later sue you when you when try to publish your first novel. Maybe legally they could, but it would be pretty silly for them to throw their weight around like that, and if a company did do that you would start to see customer take notice about these agreements. Until then, the text before the agree button may as well be Lorem Ipsum.

How is the EULA in any form DRM? All I see there is Nintendo making sure it's alright if they publish your user-made levels/content without asking you first.

Taking ownership of created game content and taking ownership over personal images and information are hugely different because one is something you expect to be public and the other you would assume be private and live solely on your handheld. 
 
I think people with kids would understand the importance of this difference and it's made me think twice about getting my son a 3ds. 
 
And yes, I understand Nintendo isn't going to plaster pictures of my kid around the world, but that data unknowingly living anywhere else but his handheld isn't something I agree with.

god i hate those "defective by design" whiney dickholes

I'm pretty sure this just means the videos and pictures people took with there ds and 3ds are beamed to nintendo through magic, which they them put into their press conference videos ;)

I think it's a greed factor at play somewhat. These companies can cover their asses from distribution of user content without claiming automatic rights to such content. With gaming networks so vast, I don't see why Sony/Microsoft/Nintendo can't just find the UGC they want, and submit a request to the owner of the content for its use. 99.9% of all content that these companies 'own' will not be used, so why make a clause that makes a claim to it. (Living in Europe this is obviously not a problem for me)  
 
I just don't think it's right that in order to enjoy new technologies, you have to give up such basic things (like the ownership of your own content.) Perhaps with, say, LBP, where the UGC is reliant on the content creation tools put forward by the developers, I would make an exception. 

I wish people (including and especially the FSF) would read the entire EULA before going off on hysterical tirades.

"User Content" means comments, messages, images, photos, movies, information, data and other content (which include the Nintendo 3DS user names, Mii, Mii nicknames, names of creators, and other names) which are created by, or licensed to Nintendo 3DS users including you, which will be used by Nintendo 3DS users including you in connection with the Nintendo 3DS Service.

See that part there that I bolded?  Nintendo isn't saying it has the right to dive into your SD card and vacuum up your personal photos, Nintendo is saying that it can use anything that you actively choose to upload to its service.  Which is bad how?
 
Now if you want to talk about a genuinely evil EULA, look no further than the one for the Starcraft II map editor, which says (in part):

YOU ACKNOWLEDGE AND AGREE THAT ALL MAPS, LEVELS AND OTHER CONTENT CREATED OR MODIFIED USING THE MAP EDITOR (COLLECTIVELY, “MODIFIED MAPS”) ARE AND SHALL REMAIN THE SOLE AND EXCLUSIVE PROPERTY OF BLIZZARD. WITHOUT LIMITING THE FOREGOING, YOU HERE BY ASSIGN TO BLIZZARD ALL OF YOUR RIGHTS, TITLE AND INTEREST IN AND TO ALL MODIFIED MAPS, AND AGREE THAT YOU WILL EXECUTE FUTURE ASSIGNMENTS PROMPTLY UPON RECEIVING SUCH A REQUEST FROM BLIZZARD.

That's not merely claiming a right to use maps created with the map editor, that is a claim of copyright ownership over maps created with the map editor.  Guess what will happen when the next DotA comes along?  Blizzard will claim to own it outright, and if the creator jumps ship to, say, Valve (hi Icefrog) to make a commercial version, they will try to sue his ass into oblivion.  I think that's truly scary, and that's why I refuse to use the SCII editor.

@Jbird

That isn't entirely accurate.

If I create a cartoon character in minecraft, I own the copyright to that character, but not the 3d geometry that was made to build it.

Your house analogy need another layer, that of copyright. If I design a fantastic house out of someone else's materials, the design of the house belongs to me, but the actual physical house doesn't.

Also, if you're hired by a company to design a product, you're not creating something "off your own steam", you're hired labour, being compensated for your work. This kind of contract has been abused, but it isn't all that common and it certainly isn't the scary part about copyright, there are way worse things to worry about.