Does Nintendo have the right to block your Switch if you use pirated games? With the Switch 2 set to be released in less than twenty-four hours in France, we wanted to revisit this case, which has caused quite a stir in the United States. In mid-May, the American press reported a change to the Japanese company's user agreement: the latter now reserves the right, for its American customers, to "brick the console," to render it completely inoperable, in the event of improper use. This has put its users, fans of a thousand and one "hacks," namely: pirated games, applications unavailable on the eShop, and alternative operating systems, on their toes.
Since the first Switch was released, gamers have found a flaw in the console's architecture that allows them, among other things, to play (pirated) Nintendo games without having to pay for them. Since then, the Japanese giant has been trying, as best it can, to plug the breach. And the latest measure, taken last May, is part of this effort: Nintendo has tightened the terms of use for its consoles and online services in the United States, going so far as to provide—and this is a first—for the remote deactivation of devices.
On the French side, the contract that covers your use of Nintendo's services—a sort of general terms of use—is not as categorical. It does stipulate that the player must comply with the "Nintendo Code of Conduct." This text specifies that "any use or execution of unauthorized copies of games, applications, software" as well as "any use of cheats, automated software (robots), hacking tools (hacks), mods or any other unauthorized device or software (…)" are prohibited.
What happens if you do not strictly comply with these conditions - which is the case when using pirated games? Nintendo "may terminate this agreement or any part of it at any time without notice." This means that all online services offered by Nintendo could be cut off. So goodbye to online games, but not to single-player games: the player will be able to continue using their console, but offline, unlike American users. Why this difference in treatment between the two countries?
First, "flood the market," and then possibly control more strictly
If deactivation is not (yet) provided for in French contracts, it is primarily for reasons of "corporate strategy," explains Eric Barbry, IT and Data lawyer at the Racine firm. A manufacturer of connected devices like consoles can say to itself: "OK, I know there is abnormal behavior, such as the use of illicit content (pirated, editor's note). But I turn a blind eye, because my priority is to sell my equipment and flood the market with my products." So first of all, "you're not going to start bricking your device."
Especially since legally, one might wonder if "it's not risky to deactivate the device, to do something intrusive. Blocking access, a box or a console could have the consequence of demonstrating to a judge that I am able to control what happens with my equipment. And so the fact of not doing so (of not exercising this control) could incur my liability," emphasizes Mr. Barbry.
This question has actually been on the table for years: the debate took place "at the very beginning of the Internet with websites and sales platforms like eBay. For the latter, the question was: should we control and therefore demonstrate that these platforms are capable of doing so, with the risk of seeing their liability incurred when they do not do so, or when they do it badly?", continues the specialist.
For all these reasons, "many players hesitated for a long time to implement real coercive control measures - or even blocking." We see this with Netflix and the account sharing that was tolerated for a while, Google "which took a very long time to police things," and which "only does it from time to time, like when you realize that a certain site is inaccessible because it violated a certain number of rules. It's the same for social networks today," emphasizes the lawyer associated with the Racine firm. But this control is not systematic: "They don't do it all the time, but they do give themselves the possibility of removing such illegal content."
Initially, the priority of manufacturers of connected devices like consoles was to sell their products, even if it meant being lax. "Then the question that arose was, OK, now we've sold our device, we have millions of subscribers or millions of users, what should we do? Should we regulate or not, control or not, disable or not in the event of improper use? Knowing that if we don't regulate, we risk getting our knuckles rapped, because we don't regulate. And if we regulate, we risk getting our knuckles rapped, because we could be held liable," explains Mr. Barbry.
Disabling the Switch, a violation of property rights?
Besides this legal "risk," would Nintendo absolutely have the right to remotely disable your Switch in France? To answer this question, "we must distinguish: first, there is access to an online service. When I'm a Nintendo user and I play with other people online, for example, I'm on a service that doesn't belong to me. I'm allowed to use it, but under certain conditions. So if you don't respect the rules of the game, you risk being removed from the game," emphasizes Mr. Barbry.
And a priori, "in France or in Europe, excluding people from an environment (of an online service) because they don't respect the rules of the game, that doesn't seem abnormal to me."
But where things are less clear-cut is "when you deactivate a piece of equipment, because in fact the person bought this equipment. You own this equipment, and you're prevented from using it. But we must not forget that it is a connected object, there is a connectivity part and a network part that effectively escape the user."
Which would allow the manufacturer to remotely deactivate the device? "This still needs to be clear in the contracts," says Eric Barbry. "When you buy a Switch, there are actually three elements: the hardware component, the online uses, and the software and connection to the rest of the world. And that's not yours. It's made available to you because you bought the Switch, but you pay for it as part of a service. And if at that point, the contracts are written in that way, saying, "if you don't respect the rules of the game, I will effectively deactivate your console remotely," then it won't be a violation of your property rights since I would have warned you. And what's more, I would have warned you that you're only buying part of the hardware."
A manufacturer like Nintendo could then, in theory, brick its connected devices in the event of improper use. "From a legal perspective, it could hold water,but with a lot of legal engineering and a lot of customer information," insists Mr. Barbry.
Understand: such deactivation would therefore be possible, but not in the current state of affairs. Nintendo has not (yet) included this type of provision in its general conditions of use for France — the famous user contract. But the Japanese company, which has just made this deactivation possible in the United States, could eventually extend the measure to users on the Old Continent.
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