Hacking Question Wouldnt it be violating some law to restrict access to downloading the rest of games like L.A. Noire

[smf]

Incorrect, they are obligated by law to sell a working product and if the product requires you to download missing files from their servers they are obligated by law to provide you access to download those files, there already was a case like this in EU where the publisher lost so there even is a precedent.

No, they would be obligated to refund you. You can't compel them to let you download it.

 

[Nincompoopdo]

Nintendo reasoning is: Since you already hacked your Switch, you can download a LA Noire nsp - why would you need the eShop?

 

[Aerogems]

I would like to see this actually litigated. In the US, my guess is you could take Nintendo to small claims court for the cost of the game and they wouldn't even bother sending anyone to the hearing, so you'd likely get a default judgment since it'd almost certainly cost them more than whatever you're suing them for. You could probably do the same if your console has been super banned. Sue them for $300 + tax and any filing fees. Still probably unlikely they'll send anyone to the hearing. Many states don't allow lawyers in small claims, and those that do... It'd likely cost Nintendo far more than what you're asking for to have a lawyer even just respond to the complaint. So you get your "refund" for your super banned Switch, then go out and buy a second one that you can leave stock for online play.

If someone were to take it to trial, they may well be able to get a ruling that Nintendo's terms are unenforceable and that by deliberately restricting access to paid for content infringes upon the consumer's right to make backups and modify the physical hardware of their console in any way they see fit post-sale. Nintendo was one of the companies that got a nasty letter from the FTC recently about the illegality of their "Warranty void if removed" stickers. At least as far as games you've already purchased, I'd give even money to a judge ordering Nintendo to allow you to download it even if they ban you otherwise.

 

[guily6669]

If it really needs the update then most likely that information will be on the game box cover and you know if all online services have been denied because you got banned then you shouldn't buy such game that requires internet services...

Now if they don't advertise anything in the game that it requires internet or online services, Nintendo is kinda doing something illegal, but no one knows if they would ever lose on court but would be a possibility.

However since your console should be hacked, just download everything from interwebz and forget about it, too much hassle for so little...

Now if they prevented banned consoles from actually playing games, then would be a big hassle and everyone should start suing them, other than that, don't bother...

 

[forestoz]

Bit off topic but what's wrong with LA Noire.. I'm banned so no updates but the game runs fine? unless you can only play up to a certain case and it requires additional download?

running xci

 

[DocAmes1980]

yeah it is. But the sad thing is more and more people agree with what corporations are doing and by doing so gives them even more power in the future and less power as a consumer 10 years from now. It's sad that so many do defend companies because of allegiance wich is ridiculous to even have.

Serious question. If you are so pro-consumer then why do you support Nintendo by buying their products? Do you not think that Nintendo is one of the most anti-consumer companies around?

 

[osaka35]

If that is the European boxart you shared, the warning makes no mention of the ToS violation rendering the update possible irretrievable on the front. I also found a German back cover with the warning I presume but I cannot translate the text myself.

ToS (Terms of Service) are only valid if they are legally enforceable. Even if a contract is signed, it's only valid if it does not violate any laws. So questioning the legality is the first step. ToS comes second. ToS is more of a "this is how we're going to do things, k?" than an enforceable law.

Or, put another way, ToS is only enforceable if the law allows it to be enforced.

 

[DocAmes1980]

ToS (Terms of Service) are only valid if they are legally enforceable. Even if a contract is signed, it's only valid if it does not violate any laws. So questioning the legality is the first step. ToS comes second. ToS is more of a "this is how we're going to do things, k?" than an enforceable law.

Or, put another way, ToS is only enforceable if the law allows it to be enforced.

Exactly correct. Terms of a contract can only be upheld if they are legal in the first place.

 

[sj33]

Nintendo reasoning is: Since you already hacked your Switch, you can download a LA Noire nsp - why would you need the eShop?

I'm pretty sure that's not their reasoning.

 

[kumikochan]

Serious question. If you are so pro-consumer then why do you support Nintendo by buying their products? Do you not think that Nintendo is one of the most anti-consumer companies around?

I really don't get the point of your question

 

[Song of storms]

Bit off topic but what's wrong with LA Noire.. I'm banned so no updates but the game runs fine? unless you can only play up to a certain case and it requires additional download?

running xci

You can't play the physical copy of the game unless you download 10+GB files from the shop.

 

[smf]

I would like to see this actually litigated. In the US, my guess is you could take Nintendo to small claims court for the cost of the game and they wouldn't even bother sending anyone to the hearing, so you'd likely get a default judgment since it'd almost certainly cost them more than whatever you're suing them for.

It would be interesting.

1. You may be suing the wrong person. At least in the UK, it's the store you bought the product from that is legally liable to make sure it's fit for purpose.

With the disclaimer on the back of the box that modified systems may render it permanently unplayable.

https://www.reddit.com/r/NintendoSwitchBoxArt/comments/7eukco/la_noire_box_art_without_banner/

If you were banned after buying the game, then it's likely you don't have any recourse against anyone. The game worked when you bought it, there was a warning on the box and your actions stopped it working.

If you were banned before buying the game, then you could argue that you didn't get to read the warning before purchasing and get a refund. But you'd have to show proof that you tried to get a refund from the store and you were denied. In this case you should probably sell the game second hand and sue for the difference, otherwise you haven't done enough to mitigate your losses.

2. By taking part in the class action you would be disclosing a crime, https://neurogadget.net/2016/06/24/jailbreaking-the-ps4-and-xbox-one-consoles-is-illegal/34026, which nintendo would certainly turn up to seek damages for. Bringing a case against them would save them a whole lot of time and money.

You can't play the physical copy of the game unless you download 10+GB files from the shop.

There is a scene release that includes the NSP, so you can just grab that if you need it.

Bit off topic but what's wrong with LA Noire.. I'm banned so no updates but the game runs fine? unless you can only play up to a certain case and it requires additional download?

running xci

If you bought the game and played it before being banned then you're ok as the necessary "update" was downloaded from eshop already.

If you downloaded the scene release of la noire, then that comes with the XCI and NSP, you need to have installed it but I guess you did.

I have a vague feeling that originally the bans nintendo were dishing out still allowed updates, but now they don't. So you may have been able to download it anyway.

Serious question. If you are so pro-consumer then why do you support Nintendo by buying their products? Do you not think that Nintendo is one of the most anti-consumer companies around?

Arguably by banning modified systems they are protecting actual consumers online against cheaters.

I agree their track record on people who buy their consoles and then try to pirate the shit out of all the games is poor.

What specifically did you have in mind for their anti-consumer practices?

 

[Aerogems]

It would be interesting.

1. You may be suing the wrong person. At least in the UK, it's the store you bought the product from that is legally liable to make sure it's fit for purpose.

With the disclaimer on the back of the box that modified systems may render it permanently unplayable.

https://www.reddit.com/r/NintendoSwitchBoxArt/comments/7eukco/la_noire_box_art_without_banner/

If you were banned after buying the game, then it's likely you don't have any recourse against anyone. The game worked when you bought it, there was a warning on the box and your actions stopped it working.

If you were banned before buying the game, then you could argue that you didn't get to read the warning before purchasing and get a refund. But you'd have to show proof that you tried to get a refund from the store and you were denied. In this case you should probably sell the game second hand and sue for the difference, otherwise you haven't done enough to mitigate your losses.

2. By taking part in the class action you would be disclosing a crime, https://neurogadget.net/2016/06/24/jailbreaking-the-ps4-and-xbox-one-consoles-is-illegal/34026, which nintendo would certainly turn up to seek damages for. Bringing a case against them would save them a whole lot of time and money.

With games like LA Noire and Wolfeinstein it may get a little more murky, but for the majority of games... If you buy a game from the eShop and Nintendo then takes deliberate steps to prevent you from being able to access that game, Nintendo would be the selling merchant.

Obviously if you get a copy of some game off of CDNSP or wherever else, and you try to sue Nintendo because they make it intentionally difficult for you to use it, you're not going to have a case. However, say I use SX OS because I want to have digital backups of my physical games, and Nintendo then bans me because of that. I did absolutely nothing illegal, at least under US law, and probably EU law since you lot tend to be quite a bit more consumer friendly. Also, in the US, we have the legal right to do basically anything we want to the physical hardware of a game console once we buy it. Nintendo could refuse to service it if I try installing an internal payload injector and bridged a bunch of connections because I suck at soldering. However, using something like SX OS or any other CFW is not illegal in any way. Some of the things SX OS allows you to do could be illegal, but they could also be used for very legitimate purposes--thank you Sony for trying to get the VCR banned.

Even if, hypothetically, I pirate some game, and Nintendo super bans me for it, by preventing me from being able to access legally acquired content, Nintendo could still be on the hook. They're completely justified in trying to thwart any and all efforts to use illegally obtained software, but if I buy Octopath Traveler from the eShop and Nintendo then takes steps to make it impossible for me to download it again if I have to reset my console for whatever reason, it would not be as clear cut.

Also, at least in the US, if you took Nintendo to small claims court, it would cost them more than whatever you're likely suing for to send someone to represent the company. So you may win simply because Nintendo doesn't show up for court.

 

[Vieela]

Nintendo's ToS pretty much grant them to do whatever they want with your console if you mod it. Apparently, they can even brick your console, from what i've heard? Though i doubt they will ever do it because it's quite extreme and they'd probably receive massive backlash in case it's indeed true.

 

[MikaDubbz]

I don't see how, Rockstar/Take Two aren't even obligated to release the game to the public at all anyway. You can't sue a company for providing a luxury with an extra barrier to entry. (Well I mean technically you can sue over anything, you just wouldn't win, as there is no real law being broken)

 

[Axido]

Nintendo's ToS pretty much grant them to do whatever they want with your console if you mod it. Apparently, they can even brick your console, from what i've heard? Though i doubt they will ever do it because it's quite extreme and they'd probably receive massive backlash in case it's indeed true.

ToS < national law

And I can't think of any nation the law of which tolerates rendering devices useless on purpose.

Though... if it's a very big local company with economical impact, politics might intervene trying to ease the punishment (looking at you, Volkswagen).

 

[Vieela]

ToS < national law.

Though it's true, it's pretty much common sense. Everyone that mods their console knows that they are doing something that Nintendo is against. I know law doesn't work like that necessarily, but Nintendo stated literally everywhere that it's wrong of doing it. I just don't think anyone that'd sue Nintendo or any other party for such thing would have the slightest chance of winning. Nintendo is a very big business after all, they probably have a whole sector dedicated only to law stuff of sorts. They wouldn't risk themselves doing such thing knowing they could be sued, at least that's what i think.

 

[Axido]

Though it's true, it's pretty much common sense. Everyone that mods their console knows that they are doing something that Nintendo is against. I know law doesn't work like that necessarily, but Nintendo stated literally everywhere that it's wrong of doing it. I just don't think anyone that'd sue Nintendo or any other party for such thing would have the slightest chance of winning. Nintendo is a very big business after all, they probably have a whole sector dedicated only to law stuff of sorts. They wouldn't risk themselves doing such thing knowing they could be sued, at least that's what i think.

Actually, over here Sony is close to being sued, because the ToS of their PSN contain a few phrases that are objectively anti consumer. Like PSN credit expiring after a certain period of time.

There's already other cases where companies had to change their behaviour due to law being applied to their business practices. Steam for example now has a (limited) refund policy because of that. And let's be real, those are small examples compared to bricking devices.

 

[smf]

I did absolutely nothing illegal, at least under US law, and probably EU law since you lot tend to be quite a bit more consumer friendly. Also, in the US, we have the legal right to do basically anything we want to the physical hardware of a game console once we buy it

No, absolutely not. SX OS is illegal in both the US and all of the EU. It violates the DMCA in the US and the EUCD in all of the EU. Even if you are using backups of games you own, although in this case the damages awarded to nintendo would be negligible.

Jailbreaking consoles in the US is illegal, you have no right to perform those modifications. Multiple court cases have been brought to over turn that decision but the courts have up held that it is illegal. They have decided that jailbreaking phones is fine but jailbreaking consoles is not.

If you bring a case against nintendo on the basis of being banned due to using SX OS then you are exposing yourself to court action.

Nintendo successfully sued a lot of companies over DS flash cards, the defendants raised the possible legitimate use of them for running homebrew and it was rejected. Customs were seizing the cards and then passing the details onto nintendo. I assume the switch dongles will need to become bigger business before customs pick up on them. In the meantime nintendo can safely ban anyone they discover is using them.

First sale doctrine doesn't apply to digital licenses, instead you are entering into a contract that involves you agreeing not to hack the system. A court is unlikely to force Nintendo to honour a contract in your favour that you have already broken.

So you may win simply because Nintendo doesn't show up for court.

Or they counter sue for DMCA violations and get their high costs paid by you because of your unreasonable and vexatious claim. You would need to disclose enough details for them to investigate why you were banned, they can turn up in court with a list of what you did.

I wouldn't risk it & why would you bother anyway? If you're already pirating then you don't need eshop.

Actually, over here Sony is close to being sued, because the ToS of their PSN contain a few phrases that are objectively anti consumer. Like PSN credit expiring after a certain period of time.

Credit expiring is common for pay as you go mobiles & also for gift cards/vouchers. It sucks, but I'm not sure it's illegal.

 

[Aerogems]

No, absolutely not. SX OS is illegal in both the US and all of the EU. It violates the DMCA in the US and the EUCD in all of the EU. Even if you are using backups of games you own, although in this case the damages awarded to nintendo would be negligible.

Jailbreaking consoles in the US is illegal, you have no right to perform those modifications. Multiple court cases have been brought to over turn that decision but the courts have up held that it is illegal. They have decided that jailbreaking phones is fine but jailbreaking consoles is not.

If you bring a case against nintendo on the basis of being banned due to using SX OS then you are exposing yourself to court action.

Nintendo successfully sued a lot of companies over DS flash cards, the defendants raised the possible legitimate use of them for running homebrew and it was rejected. Customs were seizing the cards and then passing the details onto nintendo. I assume the switch dongles will need to become bigger business before customs pick up on them. In the meantime nintendo can safely ban anyone they discover is using them.

First sale doctrine doesn't apply to digital licenses, instead you are entering into a contract that involves you agreeing not to hack the system. A court is unlikely to force Nintendo to honour a contract in your favour that you have already broken.

Or they counter sue for DMCA violations and get their high costs paid by you because of your unreasonable and vexatious claim. You would need to disclose enough details for them to investigate why you were banned, they can turn up in court with a list of what you did.

I wouldn't risk it & why would you bother anyway? If you're already pirating then you don't need eshop.

If you actually read the text of the DMCA, it is vastly overblown in terms of what it actually covers. It requires two elements to violate the law. First, you have to defeat some kind of encryption or copy protection, second you have to distribute it for commercial gain/profit. Sure, if the entertainment industry wanted to buy sufficient legislators to change an "and" to an "or" it would make most of this moot. However, they haven't done that... as yet.

You can modify the hardware all you want once you physically own the console. The US FTC recently sent a nasty letter to a bunch of companies, including Nintendo, saying how their "warranty void if removed" stickers were illegal. People have a legal right to repair their own electronics or make modifications to it. There's nothing Nintendo can do about it legally. And at least with how I understand the RCM hack to work, there's no breaking of any encryption, it's a means of bypassing the encryption completely. The US Supreme Court decision involving Sony, I forget the actual case name, means that as long as there are at least some legal uses of a device, it cannot be considered illegal. Of course these days, the legal system in the US has become politicized like everything else, and people are appointed to judgeships based on the political ideology, not respect for the law, and all the things people generally agree they want in a judge.

Also, contracts are only valid so long as the terms of the contract are legal, as has been pointed out in this thread I believe. We could sign a contract where you agree to be sold into slavery by me if I buy you a Nintendo Switch. No court is going to uphold that contract in the US or EU where slavery is illegal. It's getting a bit too far off-topic, but there are a number of ways you could attack those click-wrap licenses.

I am also talking about small claims court for a couple hundred dollars. The costs of countersuing would again probably be more than it would cost if they just didn't show up in the first place. It'd probably cost them $2-$3k (roughly £1.5-£2.5k) just to pay a lawyer to draft a complaint, go down to the courthouse, file it, and then serve you; all for what might be case for £350. Maybe if hundreds of people all started doing it they might find it worth the investment, but the first few people to do it likely would win by default. I would be very interested if someone with the means and the inclination were to actually put some of the larger issues to the test. It's not me, and with a GameFly subscription there's little need for me to pirate anything. If I did, hypothetically, I would use it as a "try before you buy" sort of arrangement. If I liked the game, I would go out and buy it some time when I saw it on sale. I also think that if Nintendo had a service like Microsoft's All Access, where every single Switch game was available for a flat monthly fee, they would practically print money. If Netflix should have taught the business world anything, it's that people are willing to pay a reasonable fee if they get convenient access to quality content.

BTW, wanted to say I appreciate someone who can present a reasoned argument. All too often by this point, someone has been compared to Hitler, and the debate, as it were, has devolved into little more than petty insults. It's nice to be able to have an actual discussion with someone.

 

[zaku]

Even if it is what are you gonna do about it? Challenge Nintendo in court?