Dear Nintendo,

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TheManuel
In all honesty, I don't think it's unfair for Nintendo to try to protect their intellectual property.
We all want the HBC for different purposes and there are those who would use it to pirate games.

Just want to chime in, because this is a fallacious argument and is a dangerous line of reasoning. The US judicial system has repeatedly ruled that a tool is not at fault merely for causing the potential for harm. In other words, just because you CAN pirate games with homebrew applications doesn't mean that homebrew should be eradicated.

For an analogy, we don't ban guns just because there are some who would use them to pirate games.
We don't ban cars just because some people would use them to smuggle drugs.
We don't ban reverse engineering because some people would use it to steal your secrets.

The last one was intentionally a bad example, since reverse engineering is only legal for the purposes of ensuring compatibility. However, it's more directly relevant to the issue at hand. Homebrew hacking, and the resulted ability to launch custom applications, is only allowing me to use a tool I purchased (the Wii) for a new purpose (running programs of my own and other independent developers' making). As far as I can tell, there is nothing illegal about it in the US.

That I can potentially run hacked games this way is an unfortunate side effect (FWIW, I avoid piracy, myself. My interest in Wii homebrew is mostly in the API). However, it should have no legal or, in my opinion, ethical bearing on the existence and use of homebrew in general.

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If everybody pirated games, there would be no incentive to make them so Nintendo is entitled to do their best to prevent this.

I agree with this in theory, but Nintendo's efforts to thwart piracy should never be allowed to extend to denying me my right to do what I want with my purchased hardware. I have posited before that their language that "the Wii Console or games may be unplayable" is tantamount to destruction of my private property, and is unenforceable in an EULA. I am not a lawyer, however.

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pwiggi

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TheManuel
In all honesty, I don't think it's unfair for Nintendo to try to protect their intellectual property.
We all want the HBC for different purposes and there are those who would use it to pirate games.

Just want to chime in, because this is a fallacious argument and is a dangerous line of reasoning. The US judicial system has repeatedly ruled that a tool is not at fault merely for causing the potential for harm. In other words, just because you CAN pirate games with homebrew applications doesn't mean that homebrew should be eradicated.

For an analogy, we don't ban guns just because there are some who would use them to pirate games.
We don't ban cars just because some people would use them to smuggle drugs.
We don't ban reverse engineering because some people would use it to steal your secrets.

The last one was intentionally a bad example, since reverse engineering is only legal for the purposes of ensuring compatibility. However, it's more directly relevant to the issue at hand. Homebrew hacking, and the resulted ability to launch custom applications, is only allowing me to use a tool I purchased (the Wii) for a new purpose (running programs of my own and other independent developers' making). As far as I can tell, there is nothing illegal about it in the US.

That I can potentially run hacked games this way is an unfortunate side effect (FWIW, I avoid piracy, myself. My interest in Wii homebrew is mostly in the API). However, it should have no legal or, in my opinion, ethical bearing on the existence and use of homebrew in general.

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If everybody pirated games, there would be no incentive to make them so Nintendo is entitled to do their best to prevent this.

I agree with this in theory, but Nintendo's efforts to thwart piracy should never be allowed to extend to denying me my right to do what I want with my purchased hardware. I have posited before that their language that "the Wii Console or games may be unplayable" is tantamount to destruction of my private property, and is unenforceable in an EULA. I am not a lawyer, however.

thanks for explaining all of this...

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pwiggi
snip snip snip

Well, sure, but there's a big different between the law (rules made by the people to govern the actions of the people for the good of the people) and actions of a corporation (rules made by the corporation to govern the actions of people for the good of the corporation).
Nintendo has to protect their assets from those outside of their corporation who don't have any reason to care.
The US government has to protect the people, and is enacting rules decided upon by the people, and enforces those rules on the very people who helped decide on them.

That's a very big difference. With Nintendo, the rule makers are in very different positions from those who are supposed to follow them. In government, the rule makers and the rule followers are (ideally) one and the same--making rationalization like that valid.

As far as what you can do with your purchased hardware--you're right. Nintendo actually has really nothing to say about that. Their only EULA you must agree to is for their Network Services--which they are in perfect right to ban you from--and you have a right to opt out of.

Regardless of the software installed on the system, you can still do what you want with the hardware. The software, of course, can impede your progress towards that goal, and Nintendo has no obligation to provide end users with homebrew code execution capabilities.

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tona

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pwiggi
snip snip snip

Well, sure, but there's a big different between the law (rules made by the people to govern the actions of the people for the good of the people) and actions of a corporation (rules made by the corporation to govern the actions of people for the good of the corporation).
Nintendo has to protect their assets from those outside of their corporation who don't have any reason to care.
The US government has to protect the people, and is enacting rules decided upon by the people, and enforces those rules on the very people who helped decide on them.

Right, fair enough. What interests me are two things. First, where these two things overlap, i.e. where Nintendo's actions cross the boundary of legality. The other is whether Nintendo's actions are ethical. I am using legal precedent to establish what is ethical in this case. That's not an approach I would normally take - I have ethical objections to plenty of existing US legislation. But in this case legal precedent matches my own ethical model, hence my legal examples. I really only meant for the legislative examples to be just that - examples; that wasn't worded very clearly in my first post.

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That's a very big difference. With Nintendo, the rule makers are in very different positions from those who are supposed to follow them. In government, the rule makers and the rule followers are (ideally) one and the same--making rationalization like that valid.

As far as what you can do with your purchased hardware--you're right. Nintendo actually has really nothing to say about that. Their only EULA you must agree to is for their Network Services--which they are in perfect right to ban you from--and you have a right to opt out of.

The crux of my concern is whether Nintendo can legally disable my Wii for any reason whatsoever. It seems to me that no matter how they dress it up, they are destroying my private property. I know that you cannot legally grant someone the right to commit criminal acts against you - the act remains criminal no matter what the circumstance. Can you legally grant someone the right (via contract) to destroy your property? Maybe you can, and thus the EULA is enforceable. I'm not certain here.

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Regardless of the software installed on the system, you can still do what you want with the hardware. The software, of course, can impede your progress towards that goal, and Nintendo has no obligation to provide end users with homebrew code execution capabilities.

But they have an ethical obligation to act in good faith toward their customers. This includes not intentionally destroying their systems. I would further argue that, as the software installed on the system is necessary for the system to function, disabling that software does effectively destroy the system.


While I'm on the subject in general, let me draw a very closely related analogy. Say you install a new application from Microsoft on your Windows PC. The EULA of this application, that you click through when you install it, contains a clause that says:

"If we damn well feel like it, your access to this application's online content may be disabled and/or the Windows PC or other software on it may be unusable."

I've modelled this clause after Nintendo's language in their EULA. I've replaced 'If we detect unauthorized software, services, or devices' with 'If we damn well feel like it' because, as far as I can tell, the justification makes no difference for what follows.

My question is this: can Microsoft now legally disable your computer? Yes, you've only been granted a license to use their software. But you've paid for that license; can they just revoke it (and render it unusable) without compensating you? Can an EULA's scope extend beyond the application to which it applies? What happens when the applications are more closely coupled (as on the Wii, where WC24 and the System Menu are bundled together)?

Anyone out there have experience with contract law?

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pwiggi

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Their only EULA you must agree to is for their Network Services--which they are in perfect right to ban you from--and you have a right to opt out of.

The crux of my concern is whether Nintendo can legally disable my Wii for any reason whatsoever. It seems to me that no matter how they dress it up, they are destroying my private property.

Nintendo is not destroying your private property. "Destroy" does not apply here.

As stated before the EULA you are accepting only applies to their Network Services. If you do not like that contract, than do not accept it. (you have the right to say no!)
Than your Wii will continue to work the way you want it.
But you can't force Nintendo to let you use their services!

You as the end user are well aware of that, you are not kept uninformed.

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pwiggi
more snip

Are you suggesting that Nintendo would actually "brick" Wiis with an update?
Your arguments are valid on this point, but I'm pretty sure Nintendo is following those rules of "ethical obligation" as you put it.

I would guess that most of the time they take between updates is testing things to make sure NOTHING breaks--which includes making sure that customers' Wiis don't die, regardless of what kind of crap they have installed. This would be a good argument for why they have not started deleting fakesigned installations and whanot (What is IOS30/50 was fakesigned? Or the System Menu?)

On our side of the table, too, we've been trying to prevent our software from bricking Wiis. The banner creation toolkit (which is certainly not perfect) is not public. My tools also try to prevent many brick situations.
We also try not to introduce anything that would have the possibility of causing bricks given a Nintendo update--e.g. modifying content without updating metadata (cough cough), or nonstandard boot environments (region bricks, etc.)

Of course, Nintendo has to do their best not to brick anyone's system, and we are trying to help them in that respect.
I don't really think Nintendo would release an update that would actually disable a system.

And I'm pretty sure you don't consider a "network ban" or anything silly like that to be "damaging your property"

Ugg... I do Wiibrew and Wii hacking to get away from politics... I am taking Poly Sci as a Major... and campaigning (Libertarian)

But, I guess the combination of the 2 is kinda cool...

Very interesting read...

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DrLucky
Ugg... I do Wiibrew and Wii hacking to get away from politics... I am taking Poly Sci as a Major... and campaigning (Libertarian)

But, I guess the combination of the 2 is kinda cool...

Very interesting read...

This is really more ethics than politics...
Philosophy of "Right Action"

I think we can all agree it is ethically wrong...

If you ask me, Nintendo can learn something from homebrew! It's no secret that we are already churning out apps that are better than some of Nintendo's! Our emulators, especially! Every VC game has an emulator and a ROM. Each emulator is specially designed to run a specific game. This means that for every VC game you download, it downloads a different emulator, eating up space! The solution: Use one of Wiibrew's emulators!

I can't believe Nintendo would be blocking homebrew when they can use some of our contributions!

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strongfan
I can't believe Nintendo would be blocking homebrew when they can use some of our contributions!

What kind of business sense would it make to pay the author of an emulator for every game that gets downloaded in the virtual console when they can program their own?

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TheManuel
What kind of business sense would it make to pay the author of an emulator for every game that gets downloaded in the virtual console when they can program their own?

Well, in my point of view, when you buy a VC game at Shop Channel, you're not paying only for the game (ROM), but also for the emulator itself. And IMHO, although using an homebrew emulator is good, it's even better to have a cool channel for your favorite old-school game on Wii Menu.

Still, paying 500 points in, uhh, Super Mario Bros for NES, looks kind of... Abusive. So I use emulators for... Well, that "yarr-yarr" stuff with the skull flag :P. Wait, that's why Nintendo is stopping homebrew? Weird!

that's the equivalent of $5. But what I mean is, each game comes with a different emulator. Ocarina of Time comes with a different emulator than Mario 64. This wasts memory. Nintendo COULD have one emulator on the consol(per system) and then each VC game would be just a ROM, but they suck so much at emulation that each emulator can only play one game!

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person
Yarr Yarr thing

Do what you want cause a Pirate is free!
YOU are a pirate!

Yarr harr fiddle dede!
Being a Pirate is okay to be!
Do what you want cause a Pirate is free!
YOU are a pirate!

Wii got us a map
to lead us to a hidden box
that's all locked up with locks
and buried deep away!

We'll dig up the box;
We know it's full of precious booty!
Burst open the locks
and then we say hooray!

Yarr harr fiddle dede!
If you love to sail the sea,
YOU are a pirate!

Yarr harr fiddle dede!
Being a Pirate is okay to be!
Do what you want cause a Pirate is free!
YOU are a pirate!

Arr yarr, ahoy and avast!
dinky-dink-dink-a-dinkadefast!
Hang the black flag at the end of the mast!
YOU are a pirate!

We're sailing away!
Adventure waits on every shore!
We set sail and explore!
And run and jump all day!
We float on our boat!
Until its time to drop the anchor,
Then hang up our coats
Until we sail again!

Yarr harr fiddle dede!
If you love to sail the sea,
YOU are a pirate!

Yarr harr fiddle dede!
Being a Pirate is okay to be!
Do what you want cause a Pirate is free!
YOU are a pirate!

(spoken)Yarr! harr!
wind at your back, lads,
Wherever you go!

(singing)Blue sky above and blue ocean below,
YOU are a pirate!



Edited 1 time(s). Last edit at 11/28/2008 02:43PM by strongfan.

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Well, in my point of view, when you buy a VC game at Shop Channel, you're not paying only for the game (ROM), but also for the emulator itself. And IMHO, although using an homebrew emulator is good, it's even better to have a cool channel for your favorite old-school game on Wii Menu.

What I meant is that it makes no business sense for Nintendo to use somebody else's emulator and have to pay for that when they can program their own. This was in response to strong fan's post.

@TheManuel
O.K. (note almost all Wii emulators are open-source)

@strongfan

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srtongfan
that's the equivalent of $5. But what I mean is, each game comes with a different emulator. Ocarina of Time comes with a different emulator than Mario 64. This wasts memory. Nintendo COULD have one emulator on the consol(per system) and then each VC game would be just a ROM, but they suck so much at emulation that each emulator can only play one game!

It's not really that. It's easier to program an emulator just for ONE game of a specific console than a general emulator. N64 emulation, in particular, it's not piece of cake. I can agree with you about the memory wasting... But Nintendo wants 100% accurate emulation, and Project64 - for example - , it's the best emulator for PC avaiable and still have problems to emulate some games.

EDIT: As I know, copyright laws are crazy... So a idea like this could never be true:
Nintendo releases a full-blown emulator for "X" console, costing 3000 points (sounds a bit expensive, but keep reading). The emulator can read every single ROM avaiable to the "X" console. You can freely download the ROMs from Shop Channel, on a special and encrypted container file (not WAD). This file will come with the game, cover art, manuals, and special instructions to the emulator. While you download the ROMS, the progress screen show you some ads. And to play the games, you access a special channel, a true Virtual Console, like a SNES channel, and you browse your games in a 3D environment (dreaming a bit), choosing the "virtual cartridges". You should never pay for a ROM again, but just for the emulator (although access to these ROMs should be vinculated to the purchase of the emulator).



Edited 1 time(s). Last edit at 11/29/2008 11:25AM by DanielHueho.

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tona
Are you suggesting that Nintendo would actually "brick" Wiis with an update?
Your arguments are valid on this point, but I'm pretty sure Nintendo is following those rules of "ethical obligation" as you put it.

I was, in fact, suggesting just that. I was suggesting further that they would brick Wiis *intentionally* with an update.

Why would I accuse Nintendo of this? Because they have written an EULA that explicitly gives them this right:

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If we detect unauthorized software, services, or devices, your access to the Wii Network Service may be disabled and/or the Wii Console or games may be unplayable.

The language in those last eight words seems pretty clear: use homebrew, and we reserve the right to brick your machine. This explicitly goes beyond simply disabling access to the Wii Network Services.

So, whether or not the contract is enforceable, it IS in the language of the contract. If there are any lawyers around who can explain how this means something else, legally, please share.

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tona
Of course, Nintendo has to do their best not to brick anyone's system, and we are trying to help them in that respect.
I don't really think Nintendo would release an update that would actually disable a system.

Nintendo has reserved the right to do so, however, if you use homebrew software. This worries me.

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tona
And I'm pretty sure you don't consider a "network ban" or anything silly like that to be "damaging your property"

This is correct. My statements were made explicitly regarding the section in the EULA discussed above.

it is quite simple... as long as you agree to this new EULA, then they have the legal rights to do whatever is in the agreement.

Well, the enforceability of EULAs is debatable, so it might still be possible to sue them in court, but that doesn't help if your Wii is bricked. I still find it unlikely that Nintendo would do that, but then I don't think anyone expected them to go after homebrew for so long, and now every firmware update is just for closing some holes that homebrew uses.



Edited 1 time(s). Last edit at 12/04/2008 04:49AM by iofthestorm.

I think once Nintendo starts updating 3.4 Wiis whenever they want, someone here will find out how they are doing so, and find a way to block Nintendo...

Nintendo have no reasons to brick a softmodded Wii. They "just" will block homebrew, but their commercial software will continue to work. Homebrew is important to us, but most Wii owners doesn't care with it at all, just with their games, and so Nintendo...

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I think once Nintendo starts updating 3.4 Wiis whenever they want, someone here will find out how they are doing so, and find a way to block Nintendo...

Block NUS IP on your router. Only unblock when using some Patchmii-based application. Just that simple.