Nintendo Bricks Wii U Consoles Unless Owners Agree To New EULA

from the console-yourselves dept

Nintendo: it protects what it believes it owns with great vigor. The company has rarely missed an opportunity to make sure that other people are not allowed to alter or mess with the stuff Nintendo insists is Nintendo’s. In an apparent effort to maximize the irony combo-meter, Nintendo also has been known to make sure that customers don’t mess with or alter the properties those customers actually own, such as online support for games that Nintendo decided to alter long after purchase… just because.

But the cold grip of Nintendo’s control over its customers’ property is apparently no longer limited to games. Nintendo recently released an update for the Wii U that forces you to “agree” to a new end-user license agreement, or else it simply bricks the console altogether.

This is how Nintendo’s update to its end-user license agreement (EULA) for the Wii U works, as described by Youtube user “AMurder0fCrows” in this video. He didn’t like the terms of Nintendo’s updated EULA and refused to agree. He may have expected that, like users of the original Wii and other gaming consoles, he would have the option to refuse software or EULA updates and continue to use his device as he always had before. He might have to give up online access, or some new functionality, but that would be his choice. That’s a natural consumer expectation in the gaming context – but it didn’t apply this time. Instead, according to his video, the Wii U provides no option to decline the update, and blocks any attempt to access games or saved information by redirecting the user to the new EULA. The only way to regain the use of the device is to click “Agree.”


It immediately brings to mind Sony’s similiar move with their Playstation 3 product, in which the company unilaterally pushed out an update that would strip the console of serious functionality, including the ability to run other operating systems. It was something users had specifically wanted when they bought the console, and an update was pushed out to then take it away from them, but at least the update could be refused. There were consequences to refusing the update, but it didn’t brick the console. Nintendo, in other words, is now officially worse than Sony when it comes to screwing with the console property of their customers.

As the EFF post notes, this represents the latest step in a very troubling trend for consumer rights. It’s a practice no longer even limited to the digital world, with physical products now including different kinds of DRM or methods to break the product if any payment issues arise. This also only continues to happen as long as customers put up with it. Nintendo may end up learning that lesson the hard way.

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Comments on “Nintendo Bricks Wii U Consoles Unless Owners Agree To New EULA”

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142 Comments
Violynne (profile) says:

Uh… XBox does this too, folks. Have been since I’ve been a user going on two years now.

Oh, and Samsung’s latest policies also prevent you from using a Galaxy phone unless you agree (though the actual phone itself can be used, contacts stored on Samsung’s servers are inaccessible).

But hey, look on the bright side! If we don’t like this bullshit, we can always take them to arbitration since suing them is out of the question thanks to these new “agreements” (I love how the definition changed).

Rikuo (profile) says:

Re: Re:

Can you provide citations for that about Xbox? And which Xbox are you talking about? Original, 360 or One (or some or all of them?)
Just to clarify, do you understand what this video is talking about, that if the owner of the physical Wii U machine doesn’t accept the new EULA terms, the machine is effectively useless to him (since he more than likely cannot reprogram or install an alternative operating system; such an action may be viewed by Nintendo as circumvention of DRM, which is a no-no in the DMCA)

That One Guy (profile) says:

Re: Re:

Unless they changed something, I’m pretty sure refusing to agree to a new EULA when using an XBox doesn’t actually brick the system though, it just prohibits you from using the XBox Live service.

You can refuse to the new terms, it just means your system is now a single-player only one until you change your mind.

Compare this with what Nintendo is doing here, where if you want to use the system in any way, you are forced to agree to the new terms.

Violynne (profile) says:

Re: Re: Re:

You can refuse to the new terms, it just means your system is now a single-player only one until you change your mind.
This makes the assumption everyone who owns an XBox console has a library of disc-based games, and while I did have about 9 in my collection, the rest of my games were digital downloads.

When users disagreed to the EULA, access to those games, which have no direct ties to XBox Live, were no longer accessible.

Microsoft recently separated digital downloads from XBox Live accounts, but this sure as hell wasn’t the case last year, when I declined the EULA because I wasn’t going to accept the bullshit arbitration clause.

As a matter of fact, I wrote Microsoft stating that since I did not accept the EULA, and they’re blocking my games not associated with the XBox Live service, that it justifies a class action lawsuit.

I eventually broke down and “accepted” the EULA because, to me, my console was bricked when it wouldn’t play the games I legally purchased.

The only reason I had a Live account was because it was required to buy games in the first place, something I didn’t know prior to purchasing my console (Live came free for 3 months and there’s absolutely no indication Live was required for purchasing games).

So the definition of “brick” seems to vary between who you ask and what services are broken.

That One Guy (profile) says:

Re: Re: Re: Re:

Ah, good catch, I forgot about that.

Yeah, some digital purchases do indeed require you to be logged in to the service due to the DRM infecting them(and of course the only way to learn which are infected and which aren’t is to buy them and try and play them without being logged in), so refusal to sign in would indeed keep those games from being playable, even if the rest of the system was still usable.

Lurker Keith says:

Re: Re:

(It’s been a week or 2 since I saw that EULA, at least. I’m surprised it took Techdirt this long to cover it.)

Well, you can still take Nintendo to Small Claims Court. That was in the new EULA. I’ve read both the old EULA (whenever that last one was released) & the new, & for the life of me can’t figure out why they released a new one. I think they just changed the wording. That might’ve been pointed out in the new EULA.

The new EULA also says you are entitled to a refund if you refuse the new terms (I noticed that in the terms when I first bought mine, almost a year ago), though I’m not sure if Nintendo told retailers to provide such refund if/ when people return the console.

Regardless of the above, this kind of crap (changing terms once agreed to) ought to be illegal. Any terms that say they can be changed unilaterally, w/ or w/o notice, should be void on the grounds that it isn’t a proper contract. This should apply to all contracts. Credit Cards love this kind of one way changeability, which is but one reason why I’ve never had even one.

The only reason I have a Wii U is because I’m a Zelda fan (I also can’t afford to get 2 consoles, so I have to get the one my favorite series is on). Though, there are many other games on the console I enjoy. However, I am somewhat disappointed Ubisoft is pulling Mature game support for the Wii U after they release Watch_Dogs for it. I really liked the Splinter Cell games (have only played the ones that released for a Nintendo console), & got hooked on Assassins Creed IV. Hopefully, Bayonetta 2 & Devils Third changes things.

F_Harbord (profile) says:

Re: Re: Nintendo enjoys "testing" customers memories

According to this video the terms have not changed from Nov 25 2012 https://www.youtube.com/watch?v=g9BezzBM_Js (Play at 7:32 of the video) you may have to run it at 0.25 speed and freeze frame key parts, but from what I can tell it’s one to one and even includes that there never was a decline button(other than this If you do not agree to the terms of this agreement, you may return your Wii U for a refund in accordance with the applicable return policy.), it looks identical to me, but you can take a look for yourself check the video above then you can hi-light what’s different.
http://www.nintendo.com/consumer/info/en_na/docs.jsp
I’ve also took screenshots of the parts in the above video link that AMurder0fCrows had hi-lighted in his video.

https://www.youtube.com/watch?v=jujEuatMHEA

The part where it says returning your product is only option if you don’t agree:
http://prntscr.com/4we8yq
Software License:
http://prntscr.com/4we3nt
http://prntscr.com/4we4im
http://prntscr.com/4we579
http://prntscr.co m/4we5mg
http://prntscr.com/4we6f1

Nintendo, Making customers actually read their eula since 2014

G Thompson (profile) says:

Re: Re: Re: Nintendo enjoys "testing" customers memories

Ok.
You have posted this exact text comment three(3) times now. Also looking at your profile this has been the ONLY article that you have ever commented on under this moniker and every single one of your posts is absolutely confirming a bias towards Nintendo giving myself (and most likely others) the impression that either you are No 1 Fan in USA! or you have an explicit or third party relationship with them either by specifically commenting for them here or through external work (either for them or a PR company etc).

Which is it?

Oh and Posting something 3 times doesn’t make it any more correct in fact it’s just thought of as propaganda after a bit and generates the questions I have just asked.

F_Harbord (profile) says:

Re: Re: Re:2 Nintendo US customers don't read their eula

Who says I live in the US?

And I have never said if it was right or wrong, I’m stating the fact that there are no notable changes and that no US customer really reads their eula (especially AMurder0fCrows which his one video https://www.youtube.com/watch?v=jujEuatMHEA started this) or this would have come to light in 2012. I’m also not telling any that they have to completely obey the eula as you can what ever you want as long as remember to disable auto updates.

I’m just saying that US Nintendo customers should have brought this up along time a go and he has already fell into their “trap” (This is an agreement between you and Nintendo of America Inc. (together with its affiliates “Nintendo” or “we” or “our”) and provides important information about your Wii U. Please read this agreement carefully before using your Wii U. By using your Wii U, you are agreeing to be bound by the terms of this agreement. If you do not agree to the terms of this agreement, you may return your Wii U for a refund in accordance with the applicable return policy.)

Wii NETWORK SERVICES USER AGREEMENT (EULA)
Last updated: June 22, 2010

You understand that the Wii Console specifications and the Wii Network Service are constantly evolving and that we may update or change your Wii Console or the Wii Network Service in whole or in part, without notice to you.

NINTENDO DSi SERVICES USER AGREEMENT

Last updated: April 5, 2009

You understand that the Nintendo DSi System specifications and the Nintendo DSi are constantly evolving and that we may update or change your Nintendo DSi System or the Nintendo DSi in whole or in part, without notice to you.

Nintendo 3DS End User License Agreement

Last Updated: December 9, 2013

The Nintendo 3DS handheld video game system and accessories, the Software, and any services available using the Nintendo 3DS (collectively, the “Nintendo 3DS System”), are constantly evolving, and we may update or change your Nintendo 3DS System, in whole or in part, without notice to you.

(Wii U) End User License Agreement

The Wii U console and accessories, the Software, and any services available using the Wii U (collectively, the “Wii U System”), are constantly evolving, and we may update or change your Wii U System, in whole or in part, without notice to you. Such updates or changes may be required for you to play new Wii U games, enjoy new features, or continue to access Wii U services.

Nintendo US Costumes don’t read!

P. S. if you think Nintendo’s bad, I believe Nintendo’s pretty tame compared to some companies, their are worse ones I’ve seen, but I could be wrong. V

1. http://www.blackberry.com/legal/soft_lic_agree.shtml
2. https://www.apple.com/legal/internet-services/itunes/appstore/dev/stdeula/
3. http://us.blizzard.com/e n-us/company/legal/wow_eula.html

Nintendo, remind how foolish American customers truly are!

G Thompson (profile) says:

Re: Re: Re:3 Nintendo US customers don't read their eula

You still haven’t answered the question and instead have tried to blame the customers for the problems they may see.

In actuality whether they had the term of the agreement changed back in 2012 to reflect the same as what current changes are is irrelevant under law & Nintendo themselves by constantly bringing it into the light do so knowingly and with intent to keep the same unconscionable terms at each revision. This then stupidly on Nintendo’s behalf negates any defense under laches they might of had in ANY jurisdiction way back in 2012 (or before even)

As for ‘agreeing to be bound’ that is a standard boilerplate statement and has been so many times destroyed by courts for too many reasons and precedents to list here that it to most lawyers just raises a smile, an eyeroll, and a chuckle. IT HAS NO MEANING!

Also whether you are American or not doesn’t worry me, though if it does you. Here let me rephrase my question:

giving myself (and most likely others) the impression that either you are No 1 Fan in World! or you have an explicit or third party relationship with them either by specifically commenting for them here or through external work (either for them or a PR company etc).

Which is it? [emphasis added]

F_Harbord (profile) says:

Re: Re: Re:4 I don't obey the eula, I do what I want.

Then I guess ignorance of the law by one and or both parties is not an excuse.

And I guess Nintendo are in a no win situation then, they can’t change their eula by adding a decline option as that would variate their eula (unless they say its a completely new I guess) and they can’t enforce the eula with its current terms.

I think Nintendo considers the hardware and OS to be one and the same and treat as such (be it right or wrong) you do own the hardware but not the OS as Nintendo is licensing the OS to you and I believe (right or wrong) that unless you agree with eula you can’t use the OS in whole or in part.

Also, whether or not I am their biggest fan is irreverent, as long as either the law or the enforcement of the law remain unchanged, we can’t just single out one company like Nintendo, Apple, Blizzard Entertainment, Microsoft, Sony and probably many others and hold them above the rest, I guess we need to attack the industry as a whole (and the government).

I could be wrong about all of this, so forgive me.

Here’s Blizzard Entertainment’s world of warcraft eula:
http://us.blizzard.com/en-us/company/legal/wow_eula.html

Blizzard may replace this Agreement with new versions (each a “New EULA”) over time as the Game and the law evolve. This Agreement will terminate immediately upon the introduction of a New EULA, and you will be given an opportunity to review and accept the New EULA. If you accept the New EULA, and if the Account registered to you remains in good standing, you will be able to continue playing the Game subject to the terms of the New EULA. If you decline to accept the New EULA, or if you cannot comply with the terms of the New EULA for any reason, you will no longer be permitted to play the Game. New EULAs will not be applied retroactively. Blizzard may change, modify, suspend, or discontinue any aspect of the Game at any time. Blizzard may also impose limits on certain features or restrict your access to parts or all of the Game without notice or liability.

Here’s Sony’s which I have say is better worded:
http://www.scei.co.jp/ps4-eula/ps4_eula_en.html

(US) PLAYSTATION®4 SYSTEM SOFTWARE LICENSE AGREEMENT (Version 1.0)

SCE reserves the right, from time to time, with or without notice to you, to change the terms of this Agreement. The most current version of this Agreement will supersede all previous versions.

SCE may provide you with certain System Software updates, upgrades or services. Some updates, upgrades or services may be provided automatically without notice to you when you sign in to PSN and others may be available to you through SCE’s website or authorized channels.

Lurker Keith says:

Re: Re: Re:3 Nintendo US customers don't read their eula

Debunked! I am proof that some US Nintendo fans do read the EULAs. I have read the Wii U’s at least 3 times now. My memory of the specific phrasing/s may be off a bit, since those readings were spaced out quite a bit & my memory isn’t as good as it was a few years ago. But this might’ve been triggered by recent maintenance, since I do remember the last time I read it was only 2 or 3 months before it popped up this time, & I vaguely remember scheduled maintenance around that time, too.

I also read other contracts before I sign them, which annoys those who ask me to sign stuff (many tend to span multiple pages, & no time is ever allocated for someone to read the whole thing), & on a few occasions, I’ve not initialed areas that say I was given something I was not given.

& something that doesn’t make sense, how does Nintendo ensure kids don’t just click agree (especially since that’s the only thing you can do)? Yes, the thing tells kids to get a parent to read the thing, but I doubt any ever do. I know when I was a kid (back when we still had game cartridges), if I had to ask my dad to read & agree to one, even once, much less repeatedly, he’d be annoyed & just tell me to do it.

F_Harbord (profile) says:

Re: Re: Re:4 Nintendo US customers don't read their eula

I should apologise, I should of written Some Nintendo US customers don’t read their eula, some don’t care, some see the “update” in the wording and take at literal truth, some reads parts to find anything they consider anti-consumer in the text not knowing what had actually changed, some upload a video that could unintentionally damage a company’s repetition.

And I apologise if I am overbearing.

Also what is your view point on AMurder0fCrows and his video https://www.youtube.com/watch?v=jujEuatMHEA which started all this?

Lurker Keith says:

Re: Re: Re:5 Nintendo US customers don't read their eula

I have a few comments on his video.

1) It appears he didn’t read the EULA when he first bought the console (or a subsequent change to the terms, if there ever was one), if he’s that outraged about the terms. People have said it’s the same as before, & even if it isn’t, there were no real changes to the provisions that I noticed. All software that gets auto-updates has a “changes w/o notice to you” provision, & the Wii U was no different out of the box when I got mine, but you can usually find a way around that.

2) I didn’t like the “changes w/o notice” bit either (in the terms I had to agree to out of the box). But I got around it when it became possible to have changes w/o some kind of notice. A few months into my “owning” my Wii U, Nintendo pushed out an update that allowed the convenience of System changes even while the console is “off” (so impatient gamers didn’t have to wait for the download & installation of the updates before they could play a game). I quickly disabled that (when an update is d/ling, the OS says so, & a Download Management tool is active (Nintendo’s latest update even made that D/L Management Tool more visible); don’t want the update, delete the download & disable automatic downloads… that won’t stop updates from game discs, though), but mostly because my internet occasionally goes down for brief periods (usually once a month; it’s usually just a few minutes, & I may not even have to do anything to get it restored; I’ve been told people stealing cable messed up the centralized outside hardware somehow, & I have seen people stealing cable… because it directly affected my signal strength & I went to check), that could cause problems if something was being installed while I was asleep (ie. there’s a small chance of the console actually getting Bricked if the power fails during an update). Later, not too long ago, Nintendo sent an update that created the Quick Start Menu seen in that video. Unfortunately, it’s tied directly into the offline updates, so I had to disable that, too. I do, kinda, like the Folders that the most recent update provided, though. It let me put all the Free to try, Pay to Play (technically not Demos) games into one folder, until I decide to delete them.

3) I don’t think the EULA has legal backing, since I can’t not agree to it. & some of the provisions may not be permitted under Law (says so in the EULA). There is also no way for Nintendo to prove a kid didn’t click Agree to get into the games, which will probably work against Nintendo, even if the EULA is legally enforceable (one way they could get around this is if only certain profiles can be used to agree to the terms, which I doubt is the case currently).

4) I can still sue Nintendo for what I may be out in the unlikely event I have to, despite it having an Arbitration Clause barring a law suit. It doesn’t cover Small Claims (it says so), & I don’t think I’ll ever have enough stuff for my console to exceed the limits for Small Claims.

5) Nintendo isn’t likely to make any changes that affect me, since I never got into the Homebrew stuff, so these EULA popups are just a bit annoying.

6) I buy all my games on disc, because I don’t trust any company not to eventually pull support for the digital/ downloaded games. I also can’t put digital games in a friend’s console. Probably being paranoid on this, but Amazon’s pulled this crap w/ eBooks, so not that paranoid. This does put me in a conundrum regarding DLC; I finally have a game I’m tempted to pay for some DLC (Hyrule Warriors), but don’t know if I should bother w/ it… it isn’t like it being stuck on my console will be an issue (I still have my SNES… even the NES, though it doesn’t work now), I’ve just never liked the idea of DLC.

6) I bought a game console & games for said console. If at some point I can’t use it for the intended reason (very unlikely), I would have a case against Nintendo. See point 4.

7) If it really is the same terms as before, w/o change, then a recent change to the OS (the Folders) or the recent Miiverse or eShop Updates just triggered the machine into thinking the EULA hadn’t been agreed to. Something Nintendo probably should fix, but not a big deal. It isn’t a bad thing to remind people about the terms they’ve agreed to (assuming they’re even enforceable to any degree). The fact I couldn’t agree to them (nor even was informed of them) prior to purchase works against Nintendo (& did bug me a bit, but I’m a Zelda fan, so either it was a Wii U or no console this Gen.).

8) I usually inform myself on what the changes updates do before letting them install (once one’s downloading I have time to look online; there’s a separate step for it to install, & I could prevent the install, if I had reason, by deleting the download & disabling automatic downloads). Usually, there are a few websites that list the changes.

F_Harbord (profile) says:

Re: Re: Re:6 Nintendo US customers don't read their eula

As he tells me that it’s not the “changes” he doesn’t like, it’s the eula its self that he doesn’t like, “it also doesn’t matter if I agreed in the past (i wouldn’t have in my present mindset, and as i mentioned, it remains to be seen as to who actually agreed to this thing. In the here and now, the system is in my possession and no one else is using it).” and the fact that the eula clearly states that “By using your Wii U, you are agreeing to be bound by the terms of this agreement.” shouldn’t apply to him even if the terms haven’t changed.

John Fenderson (profile) says:

Re: Re: Re:4 Nintendo US customers don't read their eula

I carefully read all contracts, and I scan EULAs. But I’ve adopted a new criteria for software and hardware: if it requires some sort of phone-home mechanism to function, then I don’t install it (and so I don’t bother reading the EULA). Everything else gets heavily firewalled to stop any sneaky phoning home. I don’t allow anything to autoupdate, ever, period.

Mason Wheeler (profile) says:

Where are the lawsuits?

It’s long been understood that copyright infringement is not theft, because it doesn’t involve taking anything away from the owner, and that it’s silly to conflate the two.

but you know what actually is theft? This is! Forcibly taking away functionality that the console owner paid for. That is theft, pure and simple. Using the threat of loss of access to the console entirely as leverage to force the user to do something against their will qualifies as extortion. And since all of this security related stuff requires encryption, and (as a recent Techdirt article reminds us) encryption technology is officially classified as munitions, there may even be a case for calling it armed robbery.

…or maybe not, but the first two crimes are pretty solid. Nintendo and Sony have committed felonies against millions of customers. Where are the legal consequences?

Anonymous Coward says:

Re: Where are the lawsuits?

Probably their previous EULA’s make you agree not to participate in a class action lawsuit against Nintendo, which would make any lawsuit far more expensive then the actual cost of the console and all the games on it. When it comes to US law anyway.

You can thank the idiots on the Supreme Court for this, where they ruled in favor of a cellphone company that advertised ‘free’ phones then charged over $30 in taxes for the phone on customer’s first monthly bill. That cellphone company got away with it by having a no class action suit clause in their terms of service.

Jay (profile) says:

Re: Re: Where are the lawsuits?

Exactly this. The rules are changed to arbitration so it’s less likely for the lay person to have a chance in a fair and public trial which could change rules and precedents.

This effectively hurts the customer while locking in Nintendo’s model of business, forcing them to be more conservative about risks taken as money bleeds.

John Fenderson (profile) says:

Par for the course

We’re talking about Nintendo here, and they have a very long history of doing bad things.

I do take issue with this article characterizing what they’re doing as “bricking,” though. Unless I misunderstand, the devices aren’t bricked at all (“bricking” means that the device can no longer even start up). They work just fine — you just can’t use them until you click the “agree” button.

Anonymous Coward says:

Re: Re: Re: Par for the course

Effectively bricking is the same as actual bricking from this view point.

Tell you what… if someone put another in an induced coma against their will until they are dead from old age, would you consider it murder? Or just good old fashion kidnapping?

The end result for them & their family is pretty much the same no matter what stupid label you argue about it over.

Anonymous Coward says:

Re: Re: Re:3 Par for the course

Caught you… I said they were placed in an induced coma. I just asked if you consider it murder.

I am not a sociopath, but it did reveal that you lack intellectual honesty.

Regardless of the circumstance the end result is the same. Nintendo is preventing their use of the device.

Your outrage against my method is simply you hating that I proved your intellectual dishonesty. You are the one in need of perspective in life.

John Fenderson (profile) says:

Re: Re: Re:2 Par for the course

“Effectively bricking is the same as actual bricking from this view point.”

I understand what you mean, but I take issue with it nonetheless. “Bricking” means something very specific, and it’s not this.

Also, it’s not really effectively the same as actual bricking, because the block that Nintendo put into place can be removed by the user at any moment by clicking the button. If the thing were actually bricked, then that wouldn’t be possible.

Philosopherott (profile) says:

Re: Re: Re: Par for the course

I am not sure of the technical aspect of the EULA prompt but if I can’t get into a game then the device doesn’t fully start. If I brick my Phone, it still turns on, it just isn’t usable. So if bricking means not useable again then I guess this is not bricking, but if words have meaning and “‘bricking’ means that the device can no longer even start up” you are muddying the conversation. Or you are being nit picky and I am doing it back.

Anonymous Coward says:

Re: Re: Re:2 Par for the course

If you brick your phone, it turns on, it isn’t usable, and there’s no way to make it become usable without fully flashing the firmware.

They’re not the same thing at all. You’re not being nit-picky, just ignorant. Again, words have meaning.

And next time try using some fucking quotation marks.

Anonymous Coward says:

Re: Par for the course

“They work just fine — “

No, they are not working “just fine”.

An electronic “brick” is a device that is no longer useful as an electronic device and might as well be a brick, although it may still power-up. A bricked device can sometimes be de-bricked. This is different from a “dead” device that cannot even power-up.

Anonymous Coward says:

Re: Re: Par for the course

If i vent my anger at said bricked device by forcefully impacting it into a structural brick wall – there by imparting many of the normal duties of a brick to the bricked device….. does this overcome your objection to calling it bricked?

Alternatively…. If I smash it with a physical brick after the device ‘bricked’… can I not truly describe it as bricked?
(tongue in cheek)

Jeff Green (user link) says:

English Law

I don’t remember the case but I’m pretty sure the English Courts (means England and Wales but not necessarily Scotland and Northern Ireland) have ruled that an EULA has no effect if there was no option to decline, and stopping the machine working would definitely count as no option. So will be interesting to see how this plays out outside the “land of the free”

G Thompson (profile) says:

Re: English Law

This is also bordering on Criminal offenses under the Australian Consumer Laws as they currently now stand.

If Nintendo is doing this in Australia then they are about to be in a world full of shit. Though it looks this is only for SE.Asia (including Japan), North America (Canada Included), and South America. It seems the EU (including the UK) as well as Aust and New Zealand has a totally different way of doing things.

A stint in gaol (and YES that is an actual situation that could occur) by the directors of Nintendo Aust Ltd might of made them sorta sit up and do something different.

PaulT (profile) says:

Re: Re: Re: English Law

“How so? All the sheep will click Agree without even thinking twice about it.”

This is true. but, if they are in direct criminal violation of the law, they will hopefully be punished to the extent of that law.

“We violated the consumer rights of 100,000 people but only 100 complained” will hopefully not be a valid defense in court.

Rekrul says:

Re: Re: Re:2 English Law

This is true. but, if they are in direct criminal violation of the law, they will hopefully be punished to the extent of that law.

“We violated the consumer rights of 100,000 people but only 100 complained” will hopefully not be a valid defense in court.

I’m not familiar with Australian law, but will the authorities really take the time to go after a company for something that only a tiny percentage of the people will complain about?

In the past I’ve sent complaints to the US Federal Trade Commission about blatant cases of false advertising that I encountered, but they will only investigate if they receive a very large number of complaints about a particular company.

Anonymous Coward says:

I don’t agree with this practice and I’d love to be up in arms about it, but in reality I just blindly click accept to those and this update would be no different.
If there’s anything in the EULA that would bring harm to me or otherwise try to bind me to anything illegal, it would be enough for a legitimate lawsuit. Otherwise, it’s mostly unenforceable.

Anonymous Coward says:

Re: Re: Re:

Hello idiots… you say that now until some law makes them enforceable by being attached to a bill you never read about.

Go ahead… play the game of roulette, they are the house you are the idiot bad at math.

You will get it… and because of your current attitude… you will deserve it!

Anonymous Coward says:

Re: Re: Re: Re:

This has been tested in court time and time again, and believe me, it’s not going to get changed in a bill “that I haven’t read”. But by all means keep calling people idiots when just upthread you’re comparing a console softlock to forcing someone into a coma until they die.

(You’re a psychopath).

Rekrul says:

Re: Re:

Another reason why I stick to PC games, and why I refuse to use Steam.

I agree with you. However, did you ever notice that all computer software, games included, comes with a nice little disclaimer in the EULA which says that the company is not responsible for any damage that their program might do, even if it’s due to a bug in their software? So if you uninstall a game and it deletes everything on your hard drive, it’s not their fault.

In fact, the EULA says that it’s not their fault if the software doesn’t even work at all.

F_Harbord (profile) says:

I’ve looked into this very seriously and after looking at all the current or up to date Wii, DSi, 3DS and Wii U eula’s, video’s (pre 2013) before this “updated” eula and compared many other eula to the terms presented in the Wii U’s eula and have found nothing personally wrong with them or even anything misleading about them.

I have found out that first issue is definitely a non issue as many eula’s have this statement “software is licensed to you not sold.” The second is in regards to “we may update or change your Wii U System, in whole or in part, without notice to you.” And I just found out that this too should be a non issue as they “may update” (automatic update) the system unless you change your settings which I do believe you can do after you agree, from the Wii U Menu, select “System Settings.” Using the Left Stick, select the “Internet” icon and press the A Button. Scroll down and select “Automatic Software Downloads.” (which should include system updates) Select “Yes” to enable automatic downloads or “No” to disable automatic downloads, if it still updates Automatically then you have legal grounds for court action as you should have the ability to disable automatic downloads.

G Thompson (profile) says:

Re: Re:

Now scroll down the EULA to where they state Applicable Law.. then read the all too familiar line of “This EULA is valid only whilst it does not invalidate any existing regulations, legislations, or consumer rights in YOUR jurisdiction”

You see for the rest of the planet that is not the USA what you paraphrased from the EULA (which is very much a laypersons legalspeak) is actually NOT lawful and can in some jurisdictions be illegal (ie: the ‘without notice’ part)

G Thompson (profile) says:

Re: Re: Re: Re:

ah there is the problem. Consent in these instances actually requires explicit consent not implied like you are stating since the terms are changed and therefore a new instance of the contract visa vis the acceptance/consent element has to be re-entered into.

If they do it in anyway without your explicit consent, whether based on silence, previous responses or because they stated so in a EULA (which is an unconscionable conduct term and therefore breachable) then the contract is invalid and no further dealings with that EULA can or shall be entered into. The whole agreement is nullified.

F_Harbord (profile) says:

Re: (just in case no one saw this earlier)

The EULA has not changed since launch (all but the font idk)

The EULA has not changed (as far as I know), a video from Nov 25 2012 https://www.youtube.com/watch?v=g9BezzBM_Js (Play at 7:32 of the video) you may have to run it at 0.25 speed and freeze frame key parts, but from what I can tell it’s one to one and even includes that there never was a decline button(other than this If you do not agree to the terms of this agreement, you may return your Wii U for a refund in accordance with the applicable return policy.), it looks identical to me, but you can take a look for yourself check the video above then you can hi-light what’s different.
http://www.nintendo.com/consumer/info/en_na/docs.jsp
I’ve also took screenshots of the parts in the above video link that AMurder0fCrows had hi-lighted in his video.

https://www.youtube.com/watch?v=jujEuatMHEA

The part where it says returning your product is only option if you don’t agree:
http://prntscr.com/4we8yq
Software License:
http://prntscr.com/4we3nt
http://prntscr.com/4we4im
http://prntscr.com/4we579
http://prntscr.co m/4we5mg
http://prntscr.com/4we6f1

Nintendo, Making people actually read their eula since 2014

Anonymous Coward says:

Since it is a license and not sold, I wouldn’t really be buying anything would I? I’d be renting it.

I gave up on consoles long ago and much prefer the PC. I won’t be going back to consoles ever. They can quit making games for the PC but that will not change I won’t go back.

They can keep their licenses and all the things they decide to change after you purchase something. I will keep my money away from ‘deals’ like this.

Gwiz (profile) says:

As the EFF post notes, this represents the latest step in a very troubling trend for consumer rights. It’s a practice no longer even limited to the digital world, with physical products now including different kinds of DRM or methods to break the product if any payment issues arise.

It’s already moved into the automobile lending world. Miss a loan payment by a few days and your car gets disbled:

http://dealbook.nytimes.com/2014/09/24/miss-a-payment-good-luck-moving-that-car/

Anonymous Coward says:

Re: Re: Re: Re:

Because a lot of software, like, oh, I don’t know, the Nintendo software mentioned in this very article, does not have any feasible open source equivalent and there’s basically no chance of someone developing one?

Because there’s vast networks of computers that rely on proprietary software to process basically the entire global economy, and maintaining and upgrading those networks relies on proprietary software out of the necessity of compatibility?

Because we’re not all neckbearded virgins raging about closed source software instead of doing useful work for society?

I don’t know, man, pick one.

Anonymous Coward says:

Re: Re: Re:2 Re:

“Because we’re not all neckbearded virgins raging about closed source software instead of doing useful work for society?”

I’m fairly sure that an inferior person such as yourself won’t grasp this, but pretty much all “useful work for society” happens with open source software.

Take, for example, oh…the Internet.

Now there are still isolated backwaters populated by philistines who cling to their closed source software out of ignorance and incompetence, but they are diminishing in both size and importance. They are obsolete and the people responsible for them are disposable.

This incident simply highlights yet another problem with closed source software: if you are idiotic enough to buy something that runs on it, then you don’t really own it. Of course that simple point will likely elude gamers — as I’ve said many times here, gamers are stupid — and they will obediently bow down before Nintendo AGAIN because they lack the self-control, the discipline, the will and the organization to actually do something meaningful about it.

So while this is a dick move by Nintendo, it does show once again that they’re WAY smarter than gamers. Maybe they’ve been learning from EA.

John Fenderson (profile) says:

Re: Re:

There is a lot of proprietary software that is excellent and not at all obnoxious. There’s no reason not to support that.

The real question isn’t so much whether or not it’s proprietary, but whether or not it’s good, fit for purpose, and free of nasty behaviors. Open source software can fail on those points too, after all.

ltlw0lf (profile) says:

Re: Re: Re:

There is a lot of proprietary software that is excellent and not at all obnoxious. There’s no reason not to support that.

Now. There is absolutely nothing preventing the proprietary software from being excellent and not at all obnoxious in the future, say when they get bought out or the developer takes the Microsoft Crack model and runs with it. (I have a lot of proprietary software, and very few of them have gone this way, but I’ve been burned.)

The real question isn’t so much whether or not it’s proprietary, but whether or not it’s good, fit for purpose, and free of nasty behaviors. Open source software can fail on those points too, after all.

The only difference here is that with open source, you still have the source code and can fork at the moment the developer went wonky. Case in point, Observium or Nessus, both of which were open source up until the developer decided to close the source and kick all the other developers off the team. Observium was forked to LibreNMS, and Nessus became OpenVAS, and for the most part life went on. Trying to do that with a closed source/proprietary system can be far more difficult.

But otherwise, I totally agree with your sentiment. Use what works, but if you rely on closed source/proprietary software, realize that there is a huge risk you are taking relying on something that may disappear tomorrow (no matter how unbelievably small the chances are.)

John Fenderson (profile) says:

Re: Re: Re: Re:

“(I have a lot of proprietary software, and very few of them have gone this way, but I’ve been burned.”

Absolutely true. And if and when this happens, I just stop using that software. Problem solved. Although this does bring up another habit I have: I avoid any sort of proprietary data formats like the plague. If only one piece of software can read or write the data I create using it, then that software is not “fit for purpose” and I don’t use it — even if it’s otherwise the best software ever written in the history of man.

Anonymous Coward says:

Re: IANAL but ...

“For my money I say click “Agree” and ignore it!”

That’s what one of the Supreme Court justices says he does. He says he doesn’t even read them. Of course, being a Supreme Court judge he gets to say what the agreement means later, so he doesn’t have much to worry about no matter what it actually says. Most of us don’t have that privilege.

Uriel-238 (profile) says:

Re: Re: If we read all the clickwrap agreements...

…to which we are exposed in a month, it’d take longer than a month.

It’s not through ignorance or stupidity that we essentially lie about our informed consent regarding services we want, but necessity. I will freely admit that a lot of the agreements I’ve actually read I couldn’t even clearly parse enough to understand what is being said.

And considering that reading and parsing these agreements requires an odious amount of time and effort, that is an argument that might void a contract: the agreements are written so as to not be understood by the laity. We are also supposed to be protected from contracts that are otherwise unlawful or one-sided, considering that they appear for services that have been regarded (on more than one occasion) as necessary to function in US society (e.g. cell phone service). I don’t think we’ve encountered yet someone making this argument in court, but I suspect if someone did, the case was settled and sealed.

The bigs like their ridiculous contracts because they ensure that most people will follow them without question. (A lawful sort, we humans.) So they may be inclined to settle as soon as a plaintiff argues “Your honor, have you actually read the contract? It’s very long and very dry, and my client does need to work and function as a parent and citizen.”

AJ says:

Re: Re: Re:2 Re:

You dumbass.. he was arrested and held. HE WENT TO JAIL. Read the fucking story. I didn’t say he went to prison.. when you are arrested, and taken into custody.. typically you are “held” in a jail cell until/unless you make bond.. there are a few exceptions.. injured, being a minor… but typically it’s in a jail cell.

“A Southern California man was taken into custody Monday on accusations of running a home business of jailbreaking videogame consoles so they can run pirated games. “

G Thompson (profile) says:

Re: Re: Re:3 Re:

oh so you want to play the pedantic card hey?

Lets see.

The original statement was that a company (Nintendo) had people thrown in jail for selling hardware. Seeing as that the ONLY people who can charge and jail/imprison someone whilst refusing bail/bond are authorities (Police, Courts, or similar) then NO Company has EVER thrown or had someone thrown (since had would imply undue influence towards the LEO’s and you really don’t want to go down that rabbit hole) in ‘jail’.

therefore your Bullshit towards the original comment is STILL bullshit and even more bullshit since you tried to be pedantic about it.

G Thompson (profile) says:

Re: Re:

Please go and do some Contract law basics..

An offer cannot be changed after it has been accepted or it becomes a NEW offer at the instance of change. This then needs to be accepted by BOTH (or more) parties – NEVER just one or it becomes an undue influence matter – Again giving rise to a new contract.

A rental agreement once signed goes for the life of the rental term unless one or both parties breach it. and a pure forfeiture would be of the renter changing the terms of the agreement mid stride. Instant forfeiture – instant remedies required!

Contracts are NOT rocket science!

Anonymous Coward says:

As far as I am concerned, this is theft. The user bought the console, and for the sake of argument knew what the TOS were at the time of purchase. (If they didn’t know, that’s even worse.) Now, after Nintendo has already collected the money from the sale, they are imposing new terms of service and demanding everyone agree to them or lose the use of their console.

You can’t have terms of service that say you can unilaterally change the terms of service later, either. Courts have ruled that such a thing cannot be enforced as a “contract”.

F_Harbord (profile) says:

The EULA has not changed since launch (all but the font idk)

The EULA has not changed (as far as I know), a video from Nov 25 2012 https://www.youtube.com/watch?v=g9BezzBM_Js (Play at 7:32 of the video) you may have to run it at 0.25 speed and freeze frame key parts, but from what I can tell it’s one to one and even includes that there never was a decline button(other than this If you do not agree to the terms of this agreement, you may return your Wii U for a refund in accordance with the applicable return policy.), it looks identical to me, but you can take a look for yourself check the video above then you can hi-light what’s different.
http://www.nintendo.com/consumer/info/en_na/docs.jsp
I’ve also took screenshots of the parts in the above video link that AMurder0fCrows had hi-lighted in his video.

https://www.youtube.com/watch?v=jujEuatMHEA

The part where it says returning your product is only option if you don’t agree:
http://prntscr.com/4we8yq
Software License:
http://prntscr.com/4we3nt
http://prntscr.com/4we4im
http://prntscr.com/4we579
http://prntscr.com/4we5mg
http://prntscr.com/4we6f1

Nintendo, Making people actually read their eula since 2014

F_Harbord (profile) says:

Re: Re: EULA's are pretty BS anyways

There are five reasons I can think of at the top of my head:

1. Is that some times the updates resets parts of the embedded software to factory settings triggering the message to appear.

2. Nintendo enjoys reminding or are mandated to remind their customers of the terms and conditions of the eula.

3. Nintendo are testing customers to see if they actually read the eula.

4. Nintendo really wants customers to call their help and support line

5. Nintendo wants to customers to get angry, so that can really change their eula

P. S. if you think Nintendo’s bad, I believe Nintendo pretty tame compared to some of these ones are worse, but I could be wrong. V

1. http://www.blackberry.com/legal/soft_lic_agree.shtml
2. https://www.apple.com/legal/internet-services/itunes/appstore/dev/stdeula/
3.http://us.blizzard.com/en-us/company/legal/wow_eula.html

Anonymous Coward says:

1. Wii U is a dead console due to lack of games / support
2. IN the European Union because there is no way to disagree with the EULA and to continue using the product REQUIRES acceptance, this renders the entire EULA null and void as no party may compel a change to a contract or terms without the compliance of the other party. (i.e. you can’t FORCE people to accept changes or the person being forced is legally allowed to treat the contract as though it didn’t exist in its entirety.).

Grats nintendo..you just fucked yourself over and now the Wii U can be chipped and you can’t do a damn thing….

F_Harbord (profile) says:

Re: Re:

Enforcement.
If any part of this agreement is held to be invalid or unenforceable, that part will no longer apply to the parties and will be replaced by an enforceable provision that most closely reflects the original intent of the parties, but all other parts of the agreement will remain in effect unless otherwise provided in this agreement. If Section 6 is held to be invalid or unenforceable, then for any Claims the parties consent to the exclusive jurisdiction of the courts located in King County, Washington, U.S.A.

G Thompson (profile) says:

Re: Re: Re:

Exclusive Jurisdiction is ONLY for US residents.. Any residents in any jurisdictions outside of the USA do not by force of law EVER have to accept some judge who has been most likely voted into office by the idiocy of the US political voting system.

You might like to look up things such as comity, jurisdiction, and even better ‘Conflict of laws” (that there is a biggy! even includes the US’s own Lochner case). Then look at the Doctrine of Proper Law instead of relying on your inherent bias towards lex loci contractus which doesn’t work anymore.

F_Harbord (profile) says:

Re: Re: Re: I'm guess from someone who is unaffected I'm pretty much sprouting BS

Could be wrong but I think AMurder0fCrows is a US residents, as for terms and conditions of the US Wii U eula which are inherited in part from the US DSi and 3DS eula and were last updated in 2009, in last five years no US resident has read or complain as much as him

Anon says:

UK users - you can return your console to the shop

UK users should be able to return the console to the place you bought it and demand a refund.

If you can’t use it as it was intended then it’s not fit for purpose and this extends for a reasonable period (which can be months and months depending on the type of product) so it’s the responsibility of the shop to bow to your consumer rights as per the Sale of Goods Act 1979.

Have thousands of people demanding refunds from the retailers and Nintendo will loose support from the retailers themselves. Money is the only thing that talks loudly enough for these companies to listen..

Anonymous Coward says:

This situation is possible because companies are attempting to bridge the gap between an outright purchase and ongoing rental in that we are told we’re purchasing goods, but more often than not in reality it’s a lease/license relationship with a large upfront payment. The confusion occurs because we’re expecting ownership rights when in practice in this kind of case we don’t have them.

As I see it, the issues are:
* Terms and conditions (ToC) of use of equipment/software at purchase, often onerously one sided, such that use of the equipment is in effect an ongoing licence agreement.
* Unilateral change of ToC after purchase without redress.
* In event of disagreement on amended ToC after the fact, one side is able and willing to take a scorched-earth approach to the product in question, again, without redress to the other party.

This is why you need effective consumer rights legislation and strong consumer protection organisations.

MDT (profile) says:

RE: Analogies

You go to get in your car. I stand between you and your car, and I tell you I will not let you get into your car, unless you sign a paper saying that I am the best person in the world.

You go to turn your boom box on at the park, and I stop you from touching your boom box, and tell you that you cannot play your boom box unless you sign a piece of paper saying that you agree to my terms regarding when and where you can play that boom box.

Now, have I broken any laws in the above instances? I suspect you will not be surprised at the answer (hint, yes, it’s illegal to deprive people of their property, it’s called theft, whether you are taking it for yourself, or simply preventing someone from using it). It doesn’t matter if the paper I’m having you sign says I’m a nice guy, if I stop you from using your car and force you to sign it, I’m depriving you of your property.

Anonymous Coward says:

The bottom line in all this is

Yes Nintendo can do what they want with the Wii U since they still own it and you are leasing it. However it is not a smart move for a company to alienate its clientele. they just figure that enough people will be fine with the change just like Sony made that bet when they dropped support for Linux on the PS3. In the end the company will change if there is a big enough impact to the financial bottom line.

trinsic says:

Same Issue with Steam

The gaming platform Steam also gets bricked until you agree to its terms and conditions. In 2012 Steam added into its agreement waving a persons right to class action lawsuits and mandatory arbitration. Until you agree you cannot play your own games. One wonders why this hasn’t garnered the same attention.

Here is a 300 page forum post about having to agree not to enter into a class action lawsuit and forced arbitration that they force everyone to agree to with thesteam subscriber agreement. Note that if you didnt agree you would be locked out of your games. It never went anywhere with valve they don’t really listen to people any more: http://forums.steampowered.com/forums/showthread.php?t=2848908

There was a huge outcry about this in the steam forms where Valve actively is actively trying to control the dialog and silencing criticism by joining all posts regarding the subject into one thread, and locking threads they feel are too old.

Here is their over broad forum policy on speech:
Disclaimer:
Administrators/Moderators reserve the right to move, change, or delete any content at any time if they feel it is inappropriate or unsuitable.
Anything at all that is consider unsuitable to them gets removed or moved at will. its pretty bad at silencing criticism.

F_Harbord (profile) says:

Re: Re:

I said that to him and this is his response:

you missed the point.

TL;DR: Even if it hasn’t changed, Nintendo says it did, I don’t agree, and I can’t get my data off the machine without agreeing. Period, end of story.

It does not at all matter if you believe the terms in the EULA have not changed. NINTENDO THEMSELVES pushed a message to my console stating that the EULA has been updated.

That said, it also doesn’t matter if I agreed in the past (i wouldn’t have in my present mindset, and as i mentioned, it remains to be seen as to who actually agreed to this thing. In the here and now, the system is in my possession and no one else is using it).

The fact is that i do not agree to what i’m seeing now, and i’m being presented with information that the EULA has been updated, modified, or changed in some way.

If it hasn’t changed, then Nintendo should apologize to its users for the confusion and find a means of removing the message and letting me have my console back. And i should be able to go back to playing games the same way i was a few weeks ago.

But I can’t, the message is still on my screen saying there is an update to the EULA.

If it HAS changed, Nintendo needs to inform the users (which they did). There should still be a clause to continue using the system the way one did before that change as it is completely one-sided in favor of nintendo, allowing them to change the terms whenever it fancies them.

Anonymous Coward says:

Someone commented on Soylentnews

“In a sane world, the entirety of the new EULA would be null and void since it was only agreed on due to coercion. That would put an end to companies hiring Darth Vader to run their legal department.”

http://soylentnews.org/comments.pl?sid=4434&cid=107385
http://soylentnews.org/article.pl?sid=14/10/18/135231

To which I responded

“It should be void for the same reason any contract without quid pro quo is void. In the original contract you bought the device and agreed to the Eula in exchange for the ability to use the device. You paid money and, in exchange, you got the ability to use the device under the previous terms. However if they change the Eula, even if you hit agree, that’s still not a valid contract because there is no consideration involved. Any changes to the original contract must have something that benefits both parties and both parties must agree and one party can’t simply have the option to void only their end of the original contract if you don’t agree to the new terms. They must give you the option not to agree to the new terms and to continue with the contract under the old previously agreed upon terms unaffected by the fact that they would like to impose new terms. Otherwise they would be forcing you to change the terms without consideration. Consideration is something that you would voluntarily agree to given the option between continuing with the old contract, exactly as before, or choosing to agree to the new terms. Without both those options available then anything they claim to give you in exchange for clicking agree is not consideration and so the contract is not valid (or at least should not be considered valid in any sane world).”

http://soylentnews.org/comments.pl?sid=4434&cid=107614

F Harbord says:

Re: Re:

What happens if the agreement is sent in error and that none of the terms of condition have changed like this one, and also that the terms say By using your Wii U, you are agreeing to be bound by the terms of this agreement.

As far as I can tell, the “update” to the eula is in name only.

You can see for yourself, just click the Wii U tab then the End User License Agreement:

17 Feb 12 – 6 Oct 14
http://web.archive.org/web/20120217230402/https://www.nintendo.com/consumer/info/en_na/docs.jsp
Current
http://www.nintendo.com/consumer/info/en_na/docs.jsp

anon says:

Ok guys. ignore the “they may alter the wii u’s contents whenever they want for no good reason” part (yes that is an issue). The main issue is that if you don’t agree to this eula your system is locked, no gaming (disc or digital), no whatever else the wii u does.
If nintendo (and anyone else) is going to assume by default that if I don’t want to agree to their terms means I’m a pirate then fuck them, they don’t deserve my cash. I’ll wait until the wii u drops to below $60 and download all the games for free unless they reverse this action.

Josh says:

Class Action in U.S.

I’d like to bring suit in the US for issues in the EULA: this “bricking”, the arbitration clause and class action waiver; and failure to provide software updates, including new content, in individual games although initially marketed otherwise. Any thoughts? Anyone aware of new or existing class action for this? I am a lawyer but am not marketing here. If no other lawyer/law firm is working on this I will consider picking up the torch.

F Harbord says:

Re: Class Action in U.S.

As far as I’m aware there are no new or existing class actions for this or any other additional complaints from existing Wii U system owners or any other product that Nintendo provides including the 3DS.

All the terms themselves have not been changed (since 2006 as the Wii, DS & 3DS all share similar if not same terms), except the inclusion of additional information on Nintendo’s privacy policies under term 2. Use of Information which was renamed from Your Data, as of oct 06 2014 in both 3DS and Wii U; informing customers to review Nintendo’s Privacy Notice before each use of a Nintendo product, service or website to help you stay informed of their privacy practices.

Compare for yourself:
http://www.nintendo.com/consumer/info/en_na/docs.jsp
http://web.archive.org/web/20121228061441/http://www.nintendo.com/consumer/info/en_na/docs.jsp

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