Nintendo loses German court case regarding digital pre-order cancellation policy

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Though Nintendo may currently be winning the state-side court case regarding Team Xecuter, they're not doing as well in Germany. A legal dispute that has been ongoing since 2018 has reached a conclusion, and while Nintendo initially won the case, the ruling has been overturned. The court case was centered on Nintendo's eShop pre-order policy; originally, customers were completely unable to cancel any pre-orders made on the Nintendo Switch eShop. Two European regions--Norway and Germany--didn't find the policy agreeable, due to the fact customers weren't protected after making irreversible pre-orders of a product that wouldn't be immediately usable.

In 2020, following the legal complaint, and despite its victory in court, Nintendo changed its policy to allow customers to refund a pre-order so long as the game is set to launch in more than 7 days. However, both the Norwegian Consumer Council and Germany Consumer Organizations appealed the decision, resulting in the court changing its ruling in their favor. The fact that customers can purchase and receive a pre-load of a game that is unusable until launch, is what the German court took issue with. It's currently unknown as to when or whether Nintendo will be changing its pre-order policy following this ruling.

Nintendo had already offered video games for download in its e-shop before the official release date. The download usually included a software-comprehensive "pre-load" of the game as well as an icon displayed on the game console. The unlocking of the game took place via update only on the official start date. Such online purchases can usually be revoked within 14 days without giving reasons.

However, Nintendo had excluded the right of withdrawal and relied on a legal exception. However, the prerequisites for the right of revocation were not met, as the download made available after the pre-order did not yet contain any usable game. Until the release date, the game is worthless for the buyers and the contract of Nintendo is not fulfilled in any way.

...The Regional Court of Frankfurt am Main had dismissed the vzbv's action at first instance. With their appeal to the Higher Regional Court of Frankfurt, the consumer advocates have now been successful. At the hearing, after discussing the legal situation, the judges had advised Nintendo to recognise the vzbv's claim for injunctive relief as justified. The company complied with this. In the acknowledgment judgment, the court upheld the vzbv's action in its entirety. As is customary in such judgments, the acknowledgment judgment does not contain any grounds for decision.

:arrow: Source (Translation courtesy of NintendoLife)
 

jumpman17

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But poor Nintendo has to restock their shelf with your cancelled digital pre-order now.

With Nintendo's painfully slow adaption to the internet, I like to assume a cancelled digital pre-order for them involves printing out the cancellation, taping it to a brick, and then putting that brick on a shelf so they know how many copies they have left.
 

Stwert

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They should be forced to change their archaic ways. As far as I’m concerned it should be the same with digital stores as it is brick & mortar. You should be allowed to cancel any order until it has actually shipped, for arguments sake, let’s say 24 hours before actually releasing.

We already (in the U.K.) lose our distance selling rights with digital purchasing, that is unless the company doesn’t explicitly inform you of that fact.
 

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The fact that customers can purchase and receive a pre-load of a game that is unusable until launch, is what the German court took issue with.
This isn't a win
This implies that if Nintendo simply removes pre-loading, this debacle is over.

It looks like the German and Norwegian courts are specifically miffed over the fact that users pay money for something that is arbitrarily unusable for a period of time, RATHER than any actual consumer right to refund. Surely they could dance around this technicality and disable pre-loading in those regions - bam, worse service for those users and Nintendo still gets to keep your money because European courts don't understand how technology works.
 
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TomSwitch

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This isn't a win
This implies that if Nintendo simply removes pre-loading, this debacle is over.

It looks like the German and Norwegian courts are specifically miffed over the fact that users pay money for something that is arbitrarily unusable for a period of time, RATHER than any actual consumer right to refund. Surely they could dance around this technicality and disable pre-loading in those regions - bam, worse service for those users and Nintendo still gets to keep your money because European courts don't understand how technology works.
It is not really about preloading, it about refunding money that Nintendo might have already spend and there for a default risk for the company. Whether the company have money or not is besides the point. If they commit to refund then they have to set aside some money.
 

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A very anti-consumer behavior to say the least from Nintendo, they're crippling them here, and it shouldn't be complicated specially for a digital purchase.
 

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Hagel Deutschland!

Finally Nintendo gets fucking owned in court for something.
At least there's hope in Europe from the tyrannical pieces of shit Nintendo are, if this was in Japan or US, they would have won, because fuck the consumer, money comes first.

Nintendo, being as infamously petty as Sony, will just straight up block releases from the region out of spite.

Against such a company, piracy is not just a solution, it's a moral right.

From what I read, they moved it from Norway to Germany because that's where NoE is located.
From that, we can gather that this is effectively an Europe court case and not solely Germany.

If they end up blocking the region, they would be pretty fucking childish to say the least.
But then again, it's Nintendo, their mentality is no better than that of a selfish 4 year old.
 
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BigOnYa

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Updated console with Daybreak, then tried to legitimately install a game update - that's my reason. Oops.
My train of thinking was that updates (and DLC) downloaded on sysNAND don't carry over to emuMMC, so how else was I supposed to update my game? Not one for piracy, but I've been forced into it ever since; great job there, Ninty.
I did the same accidently! Got the Ban hammer, and have been forced to be pirate ever since!
 

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It still baffles me that if your console is banned, you lose access to the eshop. What about the games you bought already? I'm pretty sure European law has something that prevents a company from revoking access to things that you have bought previously. There was a thread on reddit about a guy that lost access to humblebundle, and after threatening them with EU court, they backed off. US laws don't apply anywhere else in the world lol
 
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Esdeath

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The fact that customers can purchase and receive a pre-load of a game that is unusable until launch, is what the German court took issue with.​
now they just need to use some brackets around "a pre-load of" and "until launch" so they can succesfully remove 99% of what EA produced from the storefront
 

console

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That's great news!

Nintendo need learn own big mistake lessons. If people buy digital games like pre-order or normal then if they don't like games then full refund to get money back. Must be same like Steam and GOG which have policy like hassle free to refund your money back. That's how make life more easier for all people to get their money back. B-)

I know all digital download are always worse happen later in the future when servers are closed down or internet is going to broke down anytime.

I always stick with physical copies of games forever then don't have to worry about internet broke down in the future. No digital for me. ;)
 

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This isn't a win
This implies that if Nintendo simply removes pre-loading, this debacle is over.

It looks like the German and Norwegian courts are specifically miffed over the fact that users pay money for something that is arbitrarily unusable for a period of time, RATHER than any actual consumer right to refund. Surely they could dance around this technicality and disable pre-loading in those regions - bam, worse service for those users and Nintendo still gets to keep your money because European courts don't understand how technology works.
No when there is nothing delivered you can anyway cancel. For digital goods there is an exemption, if it is delivered just after order. (Can't buy a digital item, use it 14 days and return it). Nintendo basically wanted to say "the pre-load is the delivery" and the court said: "Uhm no, customer can't use it, that's not what an excemption was made for. Please comply willingly or we will drag this on with a huge fine"
 
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Kwyjor

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I always stick with physical copies of games forever then don't have to worry about internet broke down in the future.
Except the physical copies don't have the fixes for all the major game-breaking bugs the developers didn't manage to find until after launch.
 
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chrisrlink

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Now, if only Nintendo realised that banned consoles means no eShop revenue - and preventing banned consoles from updating their games means less chance of physical sales too...
That never made sense to me; sure, stop them from using Switch Online for multiplayer, but revoking eShop access?
it's the fact banned consoles prevent (or at least curb) eshop piracy cause hacked consoles can dump nsp's or did you forget?
 

RichardTheKing

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it's the fact banned consoles prevent (or at least curb) eshop piracy cause hacked consoles can dump nsp's or did you forget?
I did, because I've never seen the need to dump NSPs, or otherwise download and install them - until I got banned. The eShop was just way more convenient, and legitimate, so there was no desire to bother with illegitimate means
 

chrisrlink

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I did, because I've never seen the need to dump NSPs, or otherwise download and install them - until I got banned. The eShop was just way more convenient, and legitimate, so there was no desire to bother with illegitimate means
they don't know that and they don't care either if you hack (and get caught) you pay the price that's why a 2nd virgin switch comes in handy
 

Kwyjor

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Now, if only Nintendo realised that banned consoles means no eShop revenue - and preventing banned consoles from updating their games means less chance of physical sales too...
That never made sense to me; sure, stop them from using Switch Online for multiplayer, but revoking eShop access?
Wait, what!? Why would someone who mods their console for the purpose of getting games for free suddenly be inclined to start buying games from the eShop?

I suppose the response is that people mod their games for purposes other than piracy, but that is a very hard sell for people who are trying to set corporate policy. One could easily make the case that if someone's modded a console for the purpose of playing legitimate homebrew, then that person's probably spending their time playing legitimate homebrew instead of eShop games anyway.
 
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HarvHouHacker

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I never pre-order, so I wouldn't know about Nintendo's "no cancellation" policy, but think of this - suppose you pre-order a game, and then it gets delisted for whatever the reason (legal issues, too lewd, etc.). What then? Is Nintendo supposed to give you your money back? If they don't, then it's more of the Great Games, Bad Service bull that we're accustomed to from Nintendo.

TBH, I hope German and Norwegian courts are able to make Nintendo do what it should have done always. It's not great that it takes world governments to enforce better business practices, but here's hoping that all turns out well in the end.
 
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