Nintendo’s crackdown on all things tangentially related to potential piracy continues, but this time the company is turning its ire on its customers, rather than those who might distribute hacks or ROMs or, um, join a Reddit. According to a change in the Nintendo Account User Agreement, as spotted by Game File’s Stephen Totilo, the Mario monolith claims the right to deliberately brick your Switch if you’re caught modifying your hardware. And, look, Nintendo, none of this is going to achieve anything you’re hoping for.
In a much-expanded version of Nintendo’s previous NAUA warnings not to tamper with your Switch, the legalese now concludes, “You acknowledge that if you fail to comply with the foregoing restrictions Nintendo may render the Nintendo Account Services and/or the applicable Nintendo device permanently unusable in whole or in part.” Or, to translate, if you’re caught fiddling, the company could render your device useless. Brick it.
Now, you may say: fair enough. It’s wholly unsurprising that a console manufacturer would include a warning that if it catches customers breaking the terms of the agreement in order to pirate games, then there will be consequences. But, let’s look at some of the issues this raises.
Brewing up trouble
Firstly, and I’m not being willfully naive here, but there are legitimate reasons people might want to modify their Switches. Homebrew has always been part of console culture, most especially on Nintendo devices. It was particularly big on the Nintendo DS, during a time when indies weren’t able to sell their games on Nintendo’s handheld so instead built their own games and distributed them as ROMs. To play these, you needed a cart (the R4 was the most famous) that would bypass all the various aspects of the DS’s hardware and software that were intended to prevent such shenanigans, letting you load unofficial games.
And as I said, I’m not naive. “Homebrew” is usually the code word used by distributors of piracy methods to legitimize the tools. So of course, by exactly those same measures, you could also load ROMs of official games—that is, a file containing the game you could download from all manner of websites, then drag-n-drop onto a micro-SD card which was loaded into the R4 cart. So, basic piracy. Every Nintendo DS game was rapidly added to such sites (most of which remain online, and often provide the only means of accessing vast numbers of long-abandoned games), meaning people could just download and play things without paying. And, you might imagine, that could have very serious consequences for developers and Nintendo.
Well. The Nintendo DS and its various iterations (up to the DSi) sold 154 million units, and 949 million games. The 3DS, 2011’s follow-up to the DS and its iterations, sold 76 million units and 392 million games. The device, for which piracy was much trickier and took a lot longer to be made possible, sold half as as many consoles and only roughly two fifths the games. This isn’t proof of anything, and certainly isn’t an argument that piracy is good for gaming, but as part of a far larger trend across all of gaming history, the devices on which piracy has been simplest tend to have sold the most units and games. Make of that what you will. At the very least, we can conclude that—even if it were the case that it somehow cost Nintendo even more extraordinary sales numbers—it didn’t cause the DS to fail. At the very least. For context, the 119-million-selling Game Boy sold half as many games as the DS.
To try to communicate just how ubiquitous the use of R4 carts became (and as such, how demonstrably this use didn’t appear to impact the incredible sales), when I wrote for a national magazine dedicated to Nintendo in the early 2000s, publishers often sent us review code of their games via ROMs. They emailed us the .ds of the game they were about to launch into stores.
Do we own objects?
Secondly, it raises some enormous questions about ownership. We, as a species, have allowed ourselves to reach a place where we willingly “buy” games while acknowledging that we don’t, in any sense, own them. We are only paying for the right to license access to games, for a secret period of the seller’s choosing. That’s already happened, and it sucks beyond imagining, but it’s done. But when it comes to physical objects, there’s still time to argue back.
When I buy my PC, I have ever right to amend or change its hardware in any way I wish. I may well void a warranty in doing so, but that’s ethereal. The actual physical object is mine. If I then use my PC to perform illegal acts, that’s another matter, but it doesn’t change that the device itself belongs to me, and no one else can legally externally affect its hardware or software such that it doesn’t function. This is what Nintendo is proposing it has the right to do to your Switch, and inevitably your Switch 2.
And let’s get something else incredibly clear: Switch piracy is nothing compared to that on the DS. Switch piracy is far more complicated, most methods don’t work on anything but the earliest Switches, it requires jailbreaking devices, and most people involved seem to resort to buying pre-hacked devices. It’s risky, you can end up bricking your Switch yourself. And given the Switch has so far sold 1.2 billion games in just eight years, not least thanks to the eShop providing a better experience than piracy, it doesn’t appear to be having a major impact. Of course, though, for Nintendo this is meaningless, because more sales would have meant more money, and they’re not interested in how little that lost amount might have been, just that it might have existed at all.
Pay these people
Obviously Kotaku is not advocating and would never advocate for piracy. We want game developers to get paid, and in an industry where publishers are laying off developers in the tens of thousands in pursuit of the impossible need for exponential growth, we want to see more ways for developers get the money they deserve.
The argument here is whether sacrificing basic freedoms, like being allowed to install software on a physical object you bought and own, so you can enjoy a homebrew game made by a friend, has any meaningful impact on anything. The Switch is one of the biggest success stories in all of gaming history, selling over 150 million units (conservatively $45 billion in revenue). The Switch 2 is expected to outsell it.
Be better than piracy
So do I have a practical suggestion? Yes! Very much so. Piracy has never been usefully addressed by punitive actions, ever-growing threats, or half-baked attempts at DRM that only hurt the legitimate customers. It is addressed by offering an equal or better service at a reasonable price.
You want proof? Spotify. For all its evils, before Spotify, the music industry was as Nintendo-like as you can imagine, flailing around in its mistaken belief that Napster, Limewire and the rest were hurting their sales. However, physical album sales spiked each time a new, popular music piracy method emerged, then flattened when they were shut down.
The growth of music industry sales began to slow in 1995, and in 1997 they fell for the first time. But in 1998 Winamp was released and mp3 sharing became a thing, and sales suddenly went up 12.5 percent. In 1999 Napster appeared, and sales increased another 10.8 percent. An industry was dying, and then suddenly recovered with the advent of file sharing. In the year 2000, at the peak of Napster, the record industry broke the record for the numbers of albums sold. (Sales dropped again in 2002, but when I investigated this at the time, I discovered the RIAA was achieving these numbers by including the drop in cassette and vinyl sales! By the next wave of file sharing in 2003, single sales reversed a 74.1 percent drop to become an 85.5 percent increase!) Oh, and we shouldn’t forget that throughout this entire period, the FTC ruled that the big five music publishers were alleged to be price fixing!
Then in 2006, along came a service that offered access to all those mp3s but for a reasonable subscription, and who could be bothered downloading music files any more? Years later, when internet speeds made TV and movie piracy more viable, we saw the rise of torrenting, until Netflix came along and said, “This is a far nicer UI for all that.”
The irony is that Nintendo already offers this. The eShop on the Switch might be utterly dreadful in terms of performance and curation, but it is a way to access vast numbers of games, and buy and play them immediately. I’ve never even thought about learning how to jailbreak my Switch, because I already have access to vast numbers of excellent indie games that I can buy for a few dollars and then play them right away. And, because they’re right there, I’m far more likely to splash out $60 on a first-party title, even though I should know better and go buy the physical cart.
If Nintendo really cared about battling piracy, and the energy it puts into it in the most bizarrely ineffective ways suggests it does (the company may have ruined every remaining day of Gary Bowser’s life, but I’m pretty sure there are no fewer hacking groups out there as a result), then it would have made the tiniest scrap of sense for the company to have addressed the eShop’s performance issues at any point over the last eight years. Instead, it has just been left as it is, struggling to load on the system it’s pre-installed on, cluttered by slop and infuriatingly slow to navigate. If Nintendo wants to see fewer Switch 2s jailbroken, it’ll stop attempting to jail a small handful of people who are involved in such things and will instead invest far more into that device’s eShop, making it swift, satisfying, and brilliant for discoverability. Because that will make a tangible difference.
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