You know where all those hacks (and all software entry points currently being worked on) open a browser window?
Nintendo, doesn't allow you to get access to the browser anymore, if you are not on the most current firmware. Instead you get a popup that tells you to update.
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By all intents and purposes Nintendos behavior should be illegal, if they are pulling it off in Europe as well. US customers, as always are out of luck, because their rights can be sold away on a virtual piece of napkin, that no one has to read.
First: Here are the different "license agreements" for both regions:
The european one does not even have to be read, you can skip it in the setup progress without acknowledging that you have read it. Nintendo simply asks you to, but you don't have to - so you are not entering into an interpersonal contract with them at that point.
Also - the european text doesnt remove their responsibility to inform you of the update or to ask for your consent. Nintendo should also have a hard time arguing, how what they are doing is covered by any of the reasons they list for being allowed to update software automatically -
and as they are putting up another usage restriction, and are not "removing content" (they are flipping a bit, adding a 1), no potential action of theirs is covered in the last paragraph. Also "may render the Software unplayable" is stated passively and should not cover them "hacking into your console" and adding a usage restriction.
So by any of the quasi legal texts they include with the platform in Europe, they shouldn't be allowed to do what they are currently doing.
US users on the other hand are effed, because they dont have consumer protection laws, that wouldnt allow any EULA to sign away their rights. EULAs to them are literally laws, as in that they cant negotiate them, and that to them they are legally binding even if they dont really read them, and whats inside conflicts with their state law.
Other interpretations are welcome.
Would be interesting to know if some of the known bit switches happened for european customers as well.