Switch 2 User Agreement Isn’t Anything New, But is Telling

(Editor’s Note: The following article contains mention of ROMs or other legal “grey areas.” Phenixx Gaming is not encouraging such activities.)

There’s a lot of chatter online this week about the Nintendo Switch 2 User Agreement. A specific section concerning what the company might exercise in terms of its ability to limit a user’s use of their console if they break the terms of the End User License Agreement (EULA) seems to have really set people off. While I’m certainly not one to go to bat for a company’s protection over intellectual property or decry those who get creative with how they use software, there is something interesting going on with how people think about their games.

More importantly, the Switch 2 User Agreement isn’t anything new, but it is telling of how people are viewing and engaging with media at large. In a time of subscriptions and streaming, we are increasingly comfortable with not owning the media we consume; I have a Game Pass Ultimate subscription that I can use while streaming Spotify on my phone and Netflix from a TV nearby.

I don’t feel the need to own the things I fill my free time with, but it does mean I spend a lot of time using media I don’t own, but rather have access to. Access that is predicated on my paying money for the access rather than any sort of ownership over the content. Even then, a digital media world often means that a lot of media I could purchase is a license rather than a tangible product to own like a physical book.

There are a few ways to access today’s top games without paying for either the license to a digital copy I own, access to it in a subscription, or rarer these days, a physical disk or cart where no download is required to play the game.

There are ways, however, to play games or access media without paying. In games, emulation and ROM files are the most common way. Despite articles saying Nintendo has suddenly decided to update the Switch 2 User Agreement, saying it holds power over your access to the full experience of the console, this isn’t new. The 3DS, for example, could cut off a user’s access to the eShop if you were found to have jailbroken your console.

The Switch 2 User Agreement states that Nintendo “may implement technical measures designed to disable your access to, or use of, any or all of the Software or the Console.” Of course, the concern that one might be wrongfully accused of the act and then unable to use their Switch 2 is always a possibility. That said, most users will never run into a situation where they’re using their Switch 2 as intended and then suddenly cut off from access to the console’s full capabilities. A growing concern for the control a company can have over consumers, even after purchasing a good or service, is one rooted in reality.

For Nintendo, however, it’s not really doing anything new here. Nintendo has gone after everyone from modders to game developers who utilize Nintendo IP illegally. While easy to critique from certain angles, it takes premeditated ignorance to believe Nintendo is acting without cause.

Is the suspension of our collective understanding that we aren’t free to access media how we please, regardless of the law, rooted in a contempt for corporate power, profit, and greed? Or, can at least part of it be attributed to the growing doubt about what it means to consume media? Put more accurately, for things like games, music, and other forms of entertainment, are we increasingly separated from ethical consumption of art, and therefore developing an aversion to paying for some of our favorite hobbies and interests?

We can explore a conversation on ownership of media, and we can critique whether or not paying to “purchase” digital content that we don’t actually own is a proper exchange of value. As far as the Nintendo Switch 2 User Agreement goes, nothing happening in its updates wasn’t already happening. In an increasingly digital world, one where shortcuts are taken to circumvent artists and creators of the pay they earn, we need to grapple with why we’re uncomfortable with limitations on our access to consume media how we please, even when we know it’s circumventing ethical engagement with the things we claim to love.

Editor’s Note: There is a larger conversation here around ownership of Digital and Physical media and content. This is one aspect of the conversation. Please let us know what you think in the comments, but be civil.