Nintendo, Locked Content, and Getting What You Pay For

When Metroid: Samus Returns arrives for the Nintendo 3DS on September 15, certain content for the game will not be available without also purchasing one of the amiibo figures releasing alongside it. Understandably, fans are upset.  This is what’s known as “on-disc downloadable content (DLC)” – content that is included in a game’s data but only accessible with an additional purchase – and is considered by many as an insult to consumers. How can game developers have the audacity to charge full price for a game when you aren’t getting the full content? The reasoning isn’t as simple as it may seem, and the “problem” has been going on a lot longer than you may realize.

This isn’t the first time that content in a Nintendo game has been locked behind amiibo figures. In The Legend of Zelda: Breath of the Wild, certain outfits and items could only be obtained by having amiibos celebrating the 30th anniversary of the Zelda franchise. These amiibos quickly sold out, even before Breath of the Wild‘s release, and no one’s really sure if they’ll ever be released again. Similarly, outfits for your Mii characters in Mario Kart 8 are unlocked with amiibos from a variety of games, and using the Fox amiibo in Star Fox Zero will give your Arwing ships their classic Star Fox 64 look.

Breath of the Wild amiibo Unlock GuideReddit user ShugoTakahasi created this handy guide for all of the
amiibo unlocks in
Breath of the Wild.

The content locked away in Samus Returns, however, isn’t just cosmetic. The “Fusion Mode” you unlock with the Metroid amiibo offers an increased difficulty for the entire game and puts protagonist Samus Aran in her suit from the 2002 Game Boy Advance title Metroid Fusion. It’s the kind of thing that would, in the pre-amiibo era, get unlocked by completing the game, which is still required anyway. Taking away an expected feature and coupling it with the likely short supply of the required amiibo (which already sold out at major retailers) is likely fueling the ire towards this cross-product functionality.

Amiibo functionality is a relatively new player in the world of locked-away content – the practice has been going on for years. If you search Google for “on disc dlc”, the first result is for the DiscLockedContentWiki, a website “informing gamers which games have on-disc DLC, an anti-consumer pratice.” The only page on the wiki is a list of titles found to lock content behind additional purchases, with one of the earliest being 2002’s Animal Crossing, another Nintendo title.

With Animal Crossing, there are two distinct features unavailable to players who don’t also own a Game Boy Advance and a GameCube–Game Boy Advance link cable. When connecting the two, you gain access to a whole new island with it’s own inhabitant. Other games took advantage of this connectivity, but also required an additional game to be purchased. With Fire Emblem: Path of Radiance, if you owned either of the Fire Emblem games for Game Boy Advance, you would unlock additional maps to play on once you completed the game. After completing Metroid Prime, connecting it with Metroid Fusion unlocked the original NES Metroid as well as Samus’s Fusion suit, nearly the same functionality as we’ll see in Samus Returns.

Metroid: Fusion Suit in Metroid: PrimeThe suit from Metroid Fusion as it appeared in Metroid Prime.

Also in Animal Crossing, there were a number of Nintendo Entertainment System games available to play that could only be unlocked through the e-Reader, an attachment for the Game Boy Advance that would read codes printed on cards that needed to be purchased separately. With Animal Crossing, the e-reader would plug into a Game Boy Advance and then further connect to the GameCube. While the e-Reader was not received well here in the United States, it was very much a precursor to the amiibo functionality we’ve seen over the past few years. And unlike amiibo figures – speaking from my employment at GameStop during this time – e-reader cards were readily available.

A game you won’t find on the DiscLockedContentWiki, or in any other article shaming developers for keeping content consumers rightfully paid for away from them, is perhaps the largest and longest-running of them all – Pokémon. Since the original Red and Blue games came out in 1996, the Pokémon franchise has always released two titles simultaneously. That’s because each game in a set only contains a certain number of Pokémon that can be collected. In order to “catch ’em all”, you need to connect another Game Boy to yours, have the sibling game running, and trade one of your collected Pokémon for, assumedly, a friend’s. There are also some Pokémon that are only made available at specially held events.

The idea behind this, of course, is to promote engagement between Pokémon players. That’s always been a major idea behind the games, long before Pokémon Go brought together thousands of people for a festival in Chicago. Despite this, no matter what you do or how badly you want them, there’s just no way to catch every Pokémon in any one game. The problem has only gotten worse with each new release. In the Sun and Moon games, fifteen of the newly-introduced Pokémon are exclusive to each version, and of the 802 (!) total that exist, roughly only 300 can be captured without outside assistance. The models, animations and character information all exist within the game itself already, there’s just no way to encounter them,

Why is there no outrage over this? Where are the forum posts and op-ed pieces demanding a boycott of Nintendo products until they learn the error of their ways? Ignoring any bias or deep-seeded appreciation people have for Nintendo, I think there are two reasons Pokémon hasn’t come under the same scrutiny as other titles – Nintendo has always been upfront about this feature, and there is no immediately discussed cost for the content. Nintendo isn’t offering a “season pass” or piece-meal purchases for additional Pokémon. If you wanted to catch all of them yourself, the cost of another 3DS and Pokémon game can be over $200, but those are purchases that are neither expected or necessary.

The earliest instance I can find of anger over “on-disc DLC” is an old, inaccessible Kotaku article from 2006 analyzing the sizes of various items offered on the Xbox LIVE Marketplace. They found that a number of games contained purchasable items whose download size was roughly 100KB, much too small to contain any useful information. Instead, it acts as a “key” to unlock the content already contained on the disc. If you want whatever content that key unlocks, you needed to purchase a separate license for it.

“License” is the key word there, and the root of all this backlash. A common misconception about purchasing software is that you have ownership of it. You can go to your local retailer, pick a game off of the shelf, pay the cashier, and walk out with it to do whatever you damn well please. That’s not the case. All that purchase got you was permission to use the product.

Whenever you purchase or play a game you agree to an End User License Agreement (EULA), Terms of Service (TOS) or some other such agreement for that product. In most of these, the phrase “licensed, not sold” is used to describe your right to use the product without claiming ownership of it. This means that the “on-disc DLC”, despite the fact that it’s contained in the files of the game you purchased, doesn’t belong to you. You only purchased a license for whatever content the publisher decided to make available. If there’s something in the game you don’t have access to, it’s because you don’t have the license for it. Attempting to acquire the content without the appropriate license violates your agreement with the software owner and can result in your license being revoked, or worse.

I Accept Nothing
Most agreements don’t let you avoid them so easily.

“Wait a minute,” you’re thinking,”I never agreed to this!” Except you did, you just didn’t know it. Let’s take a look at the EULA that would cover Samus Returns

By using or accessing a Nintendo Device or the Network Services, or by agreeing to this Agreement in the user interface of a Nintendo Device, you are agreeing to be bound by the terms of this Agreement. Please read this Agreement carefully. If you do not agree to the terms of this Agreement, you may not use any of the Network Services or Software.[…]

The Software is licensed, not sold, to you solely for your personal, noncommercial use on your Nintendo 3DS.[…]

You agree not to use your Nintendo 3DS System in an unlawful manner or to access the systems, devices, accounts, or data of others (including Nintendo) without their (or our) consent.

This is all contained in the EULA for the Nintendo 3DS itself, rather than Samus Returns specifically. By simply using your 3DS, you agree to Nintendo’s terms, which covers any and all software you’ll have access to on the platform.

In a 2010 entry of the Law of the Level blog from law firm Sheppard Mullin, it’s stated that to streamline license agreements, console manufacturers and distribution services create a blanket agreement that covers all “Content” and “Services” that are used in conjunction with the platform. There are sometimes separate agreements publishers will put in place, but in their absence the distributor’s agreement should cover everything.

“That’s all well and good,” you confoundedly express, “but this agreement was never made available to me. I can’t agree to something I don’t know exists”. Wrong again. If you’re lucky, services like Steam or PlayStation Network will have fine print just before processing your purchase that confirms your agreement to their respective terms. Worst case scenario, you can usually find a disclaimer on the box of your console that directs you to a web-based copy of the agreement.

New Nintendo 3DS EULA Disclaimer
This disclaimer is found on the bottom of the box of a New Nintendo 3DS.

What all of this boils down to is that by purchasing and using the hardware of a company, you accept their software as it is presented to you. Publishers are well within their rights to lock-away as much content as they see fit and charge you for it later. If you disagree with their practices, your only solution is not use their services. Don’t like it? Don’t buy it.

Now, none of what I’ve said promotes or excuses the practice of locking content away from the consumer. The merits of downloadable content aside, no one wants to feel like they’re not getting their money’s worth. But a fair asking price of a game is something that has to be decided by each individual user. I’ve purchased plenty of games with additional day-one or on-disc content and I’ve happily spent more money to get it. Sometimes I get immediate buyer’s remorse when I realize I didn’t know what I was getting myself into, spending far more on a product than I would have liked.

You have to be a vigilant consumer. Ignore all the hype and marketing. Don’t pre-order. Wait for reviews, a sale, or a version of the game that contains all additional content. Only you can decide how much you’re willing to spend, and how much content you’d like to get for it. If that additional game mode or season pass puts the total cost of an experience to high for you, don’t spend money it. But once you do, there’s no one to blame for what you did or did not receive other than yourself.

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