Homebrew Companies (Like Nintendo) Might have just been put up against a wall.

[RedBlueGreen]

There's also that one case in Europe (I think it was the UK) where Nintendo tried to sue people who soft modded their Wii. The court said if they can't prove it's being done to pirate then legally there's nothing they can do.

 

[Foxi4]

That's not at all how this works. You own the physical console and you can do anything you please with it. The software on the console however is subject to a license, as all software is. You're never an owner of software unless you hold the rights to it, you're a licensee. Breaking the terms of said license can lead to legal repercussions, but that's in no way connected to issues of ownership. The case you're referencing concerns patents, which are a whole different issue yet again. You own a physical product, you don't own the design and you cannot reproduce and redistribute it under your own name as you didn't come up with it - that's what patents protect. As for online services, they're a separate matter altogether, subject to terms of service. If you break the terms of service, your access can and should be restricted - doing so in no way violates your ownership of the physical goods, in this case a console. To summarise, you own the goods - a physical piece of electronics with which you can do whatever you want. You're a licensee of the software built into the system, you agree to the terms of said license through the EULA. You're a recipient of the online service, subject to the terms of service with its respective agreement.

 

[Redferne]

The issue I have is there is now justification for the ban. All we have is an error code and a different explanation depending on where look for it (nintendo.com, .co.uk, .fr and so on).
If I received a message saying you've been ban for using "this software" I would be perfectly fine with it.
But without justification I could argue that I'm wrongfully banned and that it is Nintendo that breaks the EULA.

 

[Osakasan]

The issue I have is there is now justification for the ban. All we have is an error code and a different explanation depending on where look for it (nintendo.com, .co.uk, .fr and so on).
If I received a message saying you've been ban for using "this software" I would be perfectly fine with it.
But without justification I could argue that I'm wrongfully banned and that it is Nintendo that breaks the EULA.

Not this shit again

You used any homebrew software while being online, no matter wich one it is, you violated the ToS, ergo you broke the EULA.

That's how it is, there's no other way around.

 

[Redferne]

Not this shit again

You used any homebrew software while being online, no matter wich one it is, you violated the ToS, ergo you broke the EULA.

That's how it is, there's no other way around.

Take a deep breath and try to understand what I wrote.
This is purely rhetorical. Well, not entirely but still. EULA are not legally binding. If any clause in a EULA is judged (by a court) illegal or abusive it is voided. I'm pretty sure that a lawyer could argue in court that a ban without justification is abusive, even if it is the case in most EULA of that type and to my knowledge nobody did.
The reason Nintendo doesn't give any explanation is very likely to protect its detection process.

Anyway, as I said this purely rhetorical. If you ever want to go to court you'll have to present a clean 3DS which definitively not our case

 

[Hopalongtom]

Their TOS also says you wave the right to refund, which is an illegal practice in the EU!

 

[Foxi4]

The issue I have is there is now justification for the ban. All we have is an error code and a different explanation depending on where look for it (nintendo.com, .co.uk, .fr and so on).
If I received a message saying you've been ban for using "this software" I would be perfectly fine with it.
But without justification I could argue that I'm wrongfully banned and that it is Nintendo that breaks the EULA.

You broke the terms of service and your access for the service was revoked, do you expect them to have specific codes for each homebrew app? The ban doesn't affect your ability to use the console that you've purchased, it only affects your ability to connect to Nintendo servers, which is entirely fair.

Their TOS also says you wave the right to refund, which is an illegal practice in the EU!

A refund on what? Access to Nintendo Network is free of charge.

 

[Hopalongtom]

You broke the terms of service and your access for the service was revoked, do you expect them to have specific codes for each homebrew app? The ban doesn't affect your ability to use the console that you've purchased, it only affects your ability to connect to Nintendo servers, which is entirely fair.
A refund on what? Access to Nintendo Network is free of charge.

A refund on anything bought on the Nintendo Network!

 

[Disco Inferno]

Once you buy something it's yours, but a company can still refuse to do business with you if you violate their terms of service, just like a store can refuse to sell you things if you're not wearing a shirt.

 

[Foxi4]

A refund on anything bought on the Nintendo Network!

That'd be the eShop, another wholly different service which, by the way, is unaffected by the ban waves, so I don't know why you're bringing it up. As for refunds for digital content, it's a messy situation on just about any service, including Steam which features the most fair refunds system. Nintendo isn't alone on this one, but yes, they have some catching up to do. The law you're referring to is the Right of Withdrawal which gives you 30 days to back out of a transaction, this right is however nullified the moment the software is provided, which in the digital realm is instantaneous. The only other refunds concern faulty goods which just don't occur in the digital realm and goods that are sold under false pretenses, meaning not as advertised. This is all only vaguely connected to digital games as again, you don't ever actually own them - what you're purchasing are licenses to use the software.

 

[retrofan_k]

A ban is a ban and N are not going to do shit about reversing them either.

More than anything else, 2nd and 3rd ban waves like the last one are mostly likely in the pipeline, once they have gathered more user data. They have lost the war with piracy and the recent sighax, so all they can do now is ban every console that flags on their server as unauthorised use.

 

[StarTrekVoyager]

Technically, that means they can't directly or indirectly cause bricking of modified software. But they actually never did that, Gateway ninja'd them.

 

[Redferne]

You broke the terms of service and your access for the service was revoked, do you expect them to have specific codes for each homebrew app? The ban doesn't affect your ability to use the console that you've purchased, it only affects your ability to connect to Nintendo servers, which is entirely fair.

Seriously? Before jumping on people try to read...

I broke the ToS? Prove it. If you can't or won't, you're the one breaking the EULA by not giving a service we agreed on. But it is completely rhetorical as I said because the EULA specify that Nintendo reserve itself the right to ban whoever they want whenever they want. That's the part that I would consider abusive. Of course to play that card you'd better not have broken the ToS or EULA because obviously Nintendo can prove you used unauthorized software.

Yes, I expected a code that specifically says that I'm banned because I used unauthorized software instead of a generic code which explanation differs from a country to another.

And just to be even clearer, I'm not contesting the ban. I perfectly knew what I was doing when I hacked my consoles (1 banned, 1 not... yet).

 

[StarTrekVoyager]

Seriously? Before jumping on people try to read...

I broke the ToS? Prove it. If you can't or won't, you're the one breaking the EULA by not giving a service we agreed on. But it is completely rhetorical as I said because the EULA specify that Nintendo reserve itself the right to ban whoever they want whenever they want. That's the part that I would consider abusive. Of course to play that card you'd better not have broken the ToS or EULA because obviously Nintendo can prove you used unauthorized software.

Yes, I expected a code that specifically says that I'm banned because I used unauthorized software instead of a generic code which explanation differs from a country to another.

And just to be even clearer, I'm not contesting the ban. I perfectly knew what I was doing when I hacked my consoles (1 banned, 1 not... yet).

If they were able to ban consoles, they have proof. i.e. most likely the illegitimate CIAs used.

 

[PrincessLillie]

Technically, that means they can't directly or indirectly cause bricking of modified software. But they actually never did that, Gateway ninja'd them.

*cough* Wii *cough*

 

[StarTrekVoyager]

*cough* Wii *cough*

Yeah. But law isn't retroactive, at least here in Europe. I don't think, even in the US, that you can be sued for doing something that wasn't illegal at the time you did it.

 

[BORTZ]

All of a sudden, everyone on gbatemp is a lawyer

 

[Redferne]

If they were able to ban consoles, they have proof. i.e. most likely the illegitimate CIAs used.

In that case, yes but it's not like they never made a mistake before either.

*cough* Wii *cough*

It was not intentional...

 

[PrincessLillie]

It was not intentional...

Are you sure? I recall reading somewhere that the Wii had bricking code in one of it's updates specifically targeting users of The Homebrew Channel. It did get some non-homebrew users though...

 

[StarTrekVoyager]

All of a sudden, everyone on gbatemp is a lawyer

Actually, the only thing I said is common sense in modern democraties (and even most dictatorships today). You can't sue for something legal at the time it was done.
But the funny thing is that rulings/jurisprudence aren't technically lawful in most countries in Europe. A judge can easily decide the exact contrary with a similar case.