On June 5, 2025, the Nintendo Switch 2 game console will be released worldwide. The sticker price for the console itself is $450 plus sales tax. With a game, expect to pay over $500. For comparison, the cheapest PlayStation 5 sells for $450 and the X-Box has recently increased its price to $550.
If someone paid $450 to purchase a Switch 2 console, he or she probably expects to own that console and to be able to do whatever they want within reason.
But not too long ago, Nintendo made a controversial change in its Account User Agreement (AUA) stating that if a user violates the AUA, Nintendo can take punitive action, including making their game console permanently unusable.
What conduct violates the AUA? The relevant portion states:
Without limitation, you agree that you may not (a) publish, copy, modify, reverse engineer, lease, rent, decompile, disassemble, distribute, offer for sale, or create derivative works of any portion of the Nintendo Account Services; (b) bypass, modify, decrypt, defeat, tamper with, or otherwise circumvent any of the functions or protections of the Nintendo Account Services, including through the use of any hardware or software that would cause the Nintendo Account Services to operate other than in accordance with its documentation and intended use; (c) obtain, install or use any unauthorized copies of Nintendo Account Services; or (d) exploit the Nintendo Account Services in any manner other than to use them in accordance with the applicable documentation and intended use, in each case, without Nintendo’s written consent or express authorization, or unless otherwise expressly permitted by applicable law. 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 (emphasis added).
Basically, if you use your Switch 2 to tamper with Nintendo Account Services (NAS), your console could get the brick treatment. The AUA defines NAS as follows:
“Nintendo Account Service(s)” means the services, applications, software, content, and data we make available to you through your Nintendo Account, including, for example, the Nintendo Switch Parental Controls application, video games, and add-on content, as well as any other Nintendo products, services, applications, software, content, or data that requires the use of a Nintendo Account or to which you link your Nintendo Account. (emphasis added).
So perhaps one way to get around this punitive rule is to only purchase physical copies of the game and not have a Nintendo account. Of course, this will make any online multiplayer game unplayable unless everyone is able to play through a local connection. Also, they will not be able to get online updates to fix any bugs. Lastly, there is talk that there will be no physical copies of Switch 2 games. Instead, stores will sell physical game-key cards that contain no physical game data but instead allows players to download the game online. And to do so, you will probably have to set up a Nintendo account. However, third parties have the option to sell physical copies of games.
The main reasons for this harsh punishment are to deter online cheating, harassment, and using illegally obtained copies of games. Considering that most gamers do not engage in these activities, perhaps Nintendo thought that its audience would support this or at least ignore it. But instead, this led to discussions as to whether permanently disabling an expensive game console is excessive punishment, what ownership rights people have with their game hardware and software, and what gameplay information Nintendo can access. There was also concern that Sony and Microsoft would update PlayStation and X-Box user agreements to include similar language. Also, there is speculation that this could be used to artificially keep game prices high by restricting unlicensed games made by independent game developers.
If Nintendo punishes modders who only sought to fix flaws, it could violate right-to-repair laws. For example, the original Switch had a common problem known as “stick drift” where its wireless game controller called Joy-Cons would move randomly without player input. Despite a class-action lawsuit about this issue, there has been no definitive fix to stick drift and there is concern that the Switch 2 will have the same problem. The Switch’s Joy-Cons occasionally have firmware updates that must be done through Nintendo Account Services which could make them subject to Nintendo’s user agreement. If someone fixes the stick drift problem using unauthorized parts, would that be considered “modifying” or “tampering” with the Switch and potentially risk having it permanently disabled?
This news will likely interest hackers since it implies that Nintendo has the ability to remotely disable Switch consoles. A successful hack could allow the hacker to potentially breach every Switch console, assuming Nintendo for some reason created a secret “red button” that allows it to do so. And if making the console “permanently unusable” includes permanently disabling internet access, then it could take days or even weeks before a fix can be implemented.
When it comes down to it, Nintendo is a business and has a right to protect its intellectual property from software piracy and make sure that no player has an unfair advantage. But that fact that Nintendo can make an expensive game console permanently unusable is concerning to those who plan to mod their system to fix a common problem without having to wait at a service center, or to accommodate those with disabilities, to name a few. There will be misunderstandings and in these situations is Nintendo’s policy going to be “brick first and ask questions later”? While I like to think that Nintendo will only punish only the worst offenders with evidence beyond a shadow of a doubt, only time will tell.
But we won’t know for a long time, since the Switch 2 is currently sold out despite having pre-orders.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.
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