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Tuesday, September 30, 2014

Nintendo Network Services Agreement And You

By LUDWIG VON KOOPA - "You own your User Content."

Quite a few people in the land of Miiverse are concerned that Nintendo suddenly owns them. Why? Because yesterday Nintendo re-forced Wii U and 3DS users to agree to the Nintendo Network Services Agreement (Nintendo NSA — suspicious acronym, though) which you can and should read here. For reference, you can read the Miiverse Code of Conduct here.

Apparently, according to some people on Miiverse, this new NSA allegedly allows Nintendo to own your content. And own you. They believe that everything ever on Miiverse is owned by Nintendo.

Jammy Miiverse Nintendo Network Services Agreement JammyDW
Jammy is a great user, but back in 2014 she was dead-wrong about the agreement.

I will disprove that with one quote, the first sentence of Section 3 of the new NSA:
"You own your User Content."
Definitive, yes? But I have more to say for this article.

Nintendo Network Services Agreement Miiverse you own your user content
Fortunately, my post got more Yeahs than her's, but there were many echoing the misinformation than THE TRUTH.

How could such a simple statement be missed by so many people? It devolved into a joke; a meme on Miiverse, sure, but this is the generation that gets its information from Comedy Central. When they're done joking around, do they really know the truth?

Here's the truth: Ever since Miiverse was opened in November 2012, the following has been in its Code of Conduct:
"Nintendo may use your publicly available posts, comments, drawings, and other contributions to Miiverse as set forth in the Nintendo Network Services Agreement."
As for the claims that Nintendo's rules are unenforceable on copyright grounds:
"Because you can make handwritten posts, you can also make sketches. Please post only your original works or works to for which you have been given permission to use.
As long as you follow the Miiverse Code of Conduct, you can use Nintendo's copyrighted works within Miiverse."
For the past year, Nintendo has had in its NSA that they can have:
"a worldwide, royalty-free, irrevocable, perpetual, non-exclusive, and sublicenseable license to use, reproduce, modify, adapt, publish, translate, distribute, perform, and display your User Content that you post or provide in whole or in part and to incorporate your User Content in other works, in any form, media or technology now known or later developed, including for promotional or marketing purposes."
What does that mean? It means you still OWN all of your User Content, but it also means that by providing that content on Miiverse, you give Nintendo a license to use that content for any means they see fit, including for-profit. Since they do not own that content and only have a license to use it, they're not liable for whatever you do post there. (And they state such right after the above quote.) Why do they get a license to use it? Because they're giving you the license to use their service to begin with, and the NSA makes very clear that it is only a license to use Miiverse and other aspects of their Nintendo Network service and not a right or ownership of that service.

For something that you might understand, take two examples.

Remember Pogs? They were all the rage in the 1990s, at the same time Pokémon was. Well, turns out that Nintendo licensed the Pokémon franchise (character designs, names, and the brand name) to the Pogs folk.

Pokémon pogs! From Ben Reed (whoever he is).

In other words, Pogs could produce Pokémon Pogs and sell them, but Nintendo still owns the Pokémon brand. That production was governed by a contract, like the contract you digitally signed to accept Nintendo's Nintendo Services Agreement.

Example 2: Franchisee-franchisor relationship. The franchisor is the company that grants a franchisee the license to use the company's trademarks, brands, and other processes to help spread that business around in different areas. A very common example is in the restaurant chain industry, where companies like McDonalds, Wendy's, and Burger King have used franchises very successfully to spread all over America. To oversimplify things a bit (in business, licensing and franchising are considered related but different), a franchise is a type of licensing agreement. The manager of your local and privately-owned McDonalds does not own the rights to the Hamburglar. (Where has he been lately? Jail?) McDonalds HQ does.

Similarly, when you post content on Nintendo's services, you are granting them a license to reuse that as they see fit without them having to pay you for it. One very important note here: The license you give them is non-exclusive. That means that other entities can also use your content if you so choose, because you own the content and can choose who to license it to. That includes, of course, yourself. Examples of things Nintendo has reused content for are Miiverse art galleries shown in Nintendo Directs.

That said, if you draw a picture of your original creation that you have the rights to, Nintendo has the license for the picture. Not the creation itself. See what Nintendo defines as "User Content":
""User Content" means text, images, audio, video, reviews or other content that you create or is licensed to you and that may be accessible and viewable by the public or other Network Service users;"
That is different than "intellectual property." Nintendo states in the last section of their NSA that they respect the intellectual property of other people, and if you feel it is being infringed, you are welcome to file a complaint. Nintendo also states that you are not permitted to post intellectual property that you do not have the rights to. (Besides copyrighted Nintendo content, which you are licensed to use for non-commercial purposes while on Miiverse.)

To reiterate, all of these conditions have been part of Nintendo's Network Service Agreement from the beginning. It is very important to see the truth regarding those matters, because leaving the matter as a joke can be very dangerous. People might even leave because they feel disincentivised to stick around on the basis of believing that Nintendo owns all of your content. Of course, these people probably SHOULD go. After all, if they actually read the NSA, they would know that Nintendo doesn't own your content. And lying about reading it should be grounds for expulsion. Especially if you are under 18 and you click "I agree" without having a parent present. After all, minors cannot enter legally binding contracts, which Nintendo's Network Services Agreement is. Imagine if Nintendo banned the 99% of under-18 year olds who broke that. Miiverse would lose a substantial amount of its user base, but the quality would probably skyrocket!

No one reads Nintendo Network Services Agreement Miiverse terms of service
As of publishing time, people STILL don't get it. (Also stop telling the world you didn't read it.)

By the way, this is far from a Nintendo-only thing. Pretty much most services out there have these types of clauses, ranging from Facebook (which I am still seceding from) to YouTube to deviantART  to KoopaTV. (KoopaTV's actually state that your comments are our property, so you're giving us ownership rights, not just a license.) These all use very similar, if not exact language to the terms on Nintendo's NSA.

Nintendo's NSA has one special feature though:
"Separate and apart from User Content, you can generally submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Nintendo and the Network Services ("Feedback"). Feedback, whether submitted through the Network Services or otherwise, is non-confidential and shall become the sole property of Nintendo. We shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you."
That part has also been there since the beginning. Basically that means that if you submit feedback to Nintendo, they own it. Not just a license. This means all of your feedback web forms, phone calls, and "Nintendo you should do THIS!" statements are Nintendo's property. Why do they do this? Because if they implement your feedback into action, they do not want to credit you for it or pay you anything for it. And if you're giving feedback out of love, just the implementation of your idea should be enough for you! If you look at the Terms of Use for Nintendo's site in general, they state that they do not accept ideas from you. But if you do submit any, they become Nintendo's property. Funny part about that link is that they also state:
"Nintendo claims no ownership or control, takes responsibility for, or assumes liability for any User Content posted, stored or uploaded by you"
How many times will Nintendo have to state that they do not own and never will claim to own your content?! That's because you own it!

You own your User Content. Nintendo claims no ownership.
This summarizes the whole article. You own your User Content. Nintendo claims no ownership of your User Content.

Why was it necessary for KoopaTV to correct this misinformation? Because Ludwig got pissed off at it. Because KoopaTV believes in telling you the facts and giving you the truth. We are not devoid of humour here! (Come on, you can't make that claim! Look around the site!) But humour should not come at expense of the truth. We believe that life is really funny enough that you don't have to make things up to get your laughs! There's humour to be found in everything, and we intend to draw that out with the truth.


Ludwig tells the truth on Miiverse on a daily basis while having a smile. If you Follow him at NNID PrinceOfKoopas, you'll be the first to know any new Miiverse posts he makes! He uses Miiverse every day, so even if he does not make a new post, you can be sure he's SOMEWHERE! He reads Terms of Services for fun instead of opening Fire Emblem: Awakening.


Let's read the Windows 10 and AOL Instant Messenger agreements and compare... 

4 comments :

  1. Thanks for writing this informative article! I'm going to cite it for my paper on EULAs, if you don't mind.

    ReplyDelete
  2. "Essentially, the new agreement states: You post it on Miiverse=Nintendo Owns It." Yes, because Nintendo definitely wants to own low-quality things from 8 year olds.

    ReplyDelete
    Replies
    1. Nintendo can't even keep track of what they already own, what makes 'em think they can keep track of what they get from Miiversers?

      Delete

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