Earlier this month, Nintendo found itself under scrutiny due to an update in its end-user license agreement (EULA) that purportedly allows the company to make Switch consoles “permanently unusable in whole or in part” for infractions like suspected hacking or piracy. However, Nintendo is not the only console manufacturer to have such provisions. Legal experts inform Ars Technica that these firms may indeed possess the legal authority to implement such actions.
Sony’s System Software License Agreement for the PS5 includes a clause detailing “remedies” for what it classifies as “violations.” These include actions against the use of unauthorized hardware or pirated software. In the event of an infringement, the agreement states:
“If SIE Inc determines that you have violated this Agreement’s terms, SIE Inc may itself or may procure the taking of any action to protect its interests such as disabling access to or use of some or all System Software, disabling use of this PS5 system online or offline, termination of your access to PlayStation Network, denial of any warranty, repair or other services provided for your PS5 system, implementation of automatic or mandatory updates or devices intended to discontinue unauthorized use, or reliance on any other remedial efforts as reasonably necessary to prevent the use of modified or unpermitted use of System Software.”
A similar clause is also present in the PlayStation 4 EULA. Although the PlayStation 3 EULA lacks the specific language regarding disabling online or offline access, it still warns about the potential for actions “to discontinue unauthorized use” or to “prevent the use of a modified PS3 system, or any pirated material or equipment.”
Microsoft adopts a more direct approach in its Xbox Software License Agreement. It states that engaging in activities such as “installing Unauthorized Software” or trying to bypass technical limitations can lead to the permanent failure of the Xbox Console, Kinect Sensor, or Authorized Accessory. Although it’s uncertain how long this provision has been in place, references to the now-obsolete Kinect suggest it dates back to at least the Xbox One era.
Despite the existence of these clauses, actual instances of console manufacturers remotely disabling devices due to EULA violations appear to be rare. Even in well-known hacking cases—like George Hotz’s experience with the PS3 or Team Xecuter’s Switch jailbreak—manufacturers often refrained from using technical means to eliminate offline functions for affected consoles.
In 2015, Microsoft even explicitly denied claims that it had bricked a console linked to a leak of an early Gears of War beta. The company clarified, “To be clear, if a console is suspended from Xbox Live for a violation of the Terms of Use, it can still be used offline. Microsoft enforcement action does not result in a console becoming unusable.”
That said, console manufacturers may occasionally take steps to disable systems that have been reported as stolen. There are multiple online accounts of individuals buying secondhand consoles that were rendered entirely inoperable due to prior thefts. As with any secondhand purchase, caution is advisable.
Legal Justifications
The fact that leading console manufacturers rarely use their “bricking” powers does not mean they lack the legal authority to do so. Jon Loiterman, an attorney, explained to Ars that, “Although users own the hardware, the software needed to run it is governed by a license agreement. If you violate the license terms, Nintendo has the right to revoke access to that software. It is less common for software makers to disable hardware you purchased from them, but the underlying principle remains unchanged.”
While the enforceability of these bricking clauses has yet to be tested in court, attorneys referenced by Ars believe they would likely stand up to legal scrutiny, particularly in cases involving software piracy or attempts to circumvent digital rights protections embedded in the console.
“Unfortunately, ‘bricking’ personal devices to curtail users’ rights and control their behavior is not a novel concept,” stated Victoria Noble, an attorney with the Electronic Frontier Foundation. “It may require selective enforcement to reach problematic levels,” added Richard Hoeg, another legal expert.
In the past year, a coalition of 17 consumer advocacy groups called upon the Federal Trade Commission to examine the use of “software tethering” by companies to regulate a device’s hardware functions post-purchase. However, the FTC has shown minimal interest in taking action on these complaints thus far.
Noble emphasized, “Companies should not exploit EULAs to strip individuals of rights typically associated with ownership, such as the ability to modify their personal devices. Console owners deserve the freedom to make legal modifications without the risk of their systems being remotely bricked.”
Public Perception
Ultimately, the presence of stringent bricking clauses might be effective in deterring modifications, even if console manufacturers rarely implement them. “In reality, I believe this is more about discouraging jailbreaking and system modifications, and Nintendo is unlikely to bricking large numbers of devices, even if they technically have the right to,” Loiterman remarked.
“The inclusion of a remedy in the EULA does not guarantee direct action,” stressed attorney Mark Methenitis. “I suspect this is aimed at individuals who successfully jailbroke the original Switch and is a preventive measure for the Switch 2.”
The potential for public backlash may also deter manufacturers from disabling offline functionality on hacked consoles. Methenitis referenced scrutiny faced by companies like Tesla, Keurig, and John Deere regarding software updates that limit hardware capabilities, suggesting that, “Nintendo could encounter similar negative publicity if they overreach.”
Nevertheless, the existence of legal capacities could prompt their usage. “Once the ability exists, there will always be someone curious to test the boundaries,” Hoeg concluded.
