Nintendo is known for a lot of things: timeless characters, innovative consoles and, of course, its aggressive and seemingly endless fight against piracy. On its website, Nintendo is bragging, “Since 2008, Nintendo has supported more than 600 actions in 16 countries, confiscating more than half a million copiers of DS games”, and “In 2009 alone, in collaboration with law enforcement, Nintendo brought actions against more than 80 factories in China producing (game copying devices). In fact, Nintendo’s anti-piracy crusade begins long before the Nintendo DS. In 1994, Nintendo intercepted a shipment of pirate Game Boy games, before ceremoniously destroy them with a steamroller (with the help of an oversized and spooky Mario mascot costume figure). A few years earlier, Nintendo had won in a lawsuit against Tengen, a division of Atari, which bypassed Nintendo hardware locks and sold unlicensed games, including a Tetris copycat.
In recent years, Nintendo’s battle against piracy has largely focused on “ROMs”. As explained by Wikipedia, “A ROM image… is a computer file that contains a copy of the data from a read-only memory chip, often from a video game cartridge.” In other words, a ROM file is a complete (and ideally perfect) copy of a video game, in digital representation. ROM files are one of the main mechanisms for hacking video games because they can easily be found, downloaded and played for free.
There is no doubt that downloading a ROM without the permission of the relevant rights holder is illegal. Such downloading obviously violates copyright law. Nintendo attempted to curb this piracy by targeting the websites and individuals who host and distribute these files. From a purely legal standpoint, these cases are not very interesting as the law is well established and the game is stacked heavily in Nintendo’s favor.
Nevertheless, these lawsuits constitute interesting case studies in legal strategy. To understand why, we can look at Nintendo’s most recent complaint, which was filed against Matthew Storman, the operator of the now-defunct RomUniverse. Just a few weeks ago, Nintendo secured a permanent injunction against Storman that required it to destroy all unauthorized Nintendo ROMs in its possession, and this prevents it from copying, hosting or distributing Nintendo ROMs. A few months earlier, in May 2021, the court ordered Storman to pay more than $ 2 million in damages for infringing Nintendo’s copyrights and trademarks.
Hydra Digital hacking
At first glance, you would think Nintendo’s costume was a runaway success. After all, Nintendo prevailed over all of its claims, won a multi-million dollar judgment, and has a court order on the books preventing further infringement. But first impressions can be deceptive. For one thing, ROM sites, like Hydra, cannot be defeated with a single action. “Cut off a head and two others take his place. “Sure, RomUniverse might be down, but what about romsgames.net, roms-download.com, emulatorgames.net, etc. Potential hackers looking to avoid the eShop still have a lot of problems ‘options to choose from, which means Nintendo’s success in this case doesn’t amount to much.
The Pyrrhic victory continues when it comes to the damages awarded by Nintendo. It’s true that Storman was ordered to pay over $ 2 million in damages, but that doesn’t mean Nintendo will actually receive that money. In fact, earlier in the case, Storman was fined a relatively paltry $ 3,100 for failing to preserve the evidence. To satisfy this penalty, Storman agreed to pay $ 50 per month for 5 years. He doesn’t even make your first payment. But even if Storman met his monthly obligation of $ 50, it would take him over three millennia to pay off the full verdict (not counting interest). Considering that the market rate for Nintendo’s lawyers departures To several hundred dollars an hour, it would be hard to describe the verdict as a victory for Nintendo.
And to be clear, this problem is not unique to Storman. Overall, ROM hacking sites are not operated by sophisticated or well-funded corporations or overly wealthy individuals – they are run by individuals who love video games. The problem is that the legal damages for copyright infringement are high. In the event of intentional infringement, the Copyright Act allows damages of up to $ 150,000 per copyrighted work. Since ROM sites host hundreds if not thousands of copyrighted works, damages could run into the hundreds of millions of dollars. Even if the courts were lenient and awarded damages of only 10% of the legal maximum, that would still amount to compensation in excess of $ 10 million, far more than most people can expect to see. during their lifetime. Thus, infringement verdicts are unlikely to pay off against ROM hosts.
Nintendo isn’t completely dumb about hacking and ROM chases
That’s not to say that Nintendo’s costumes are futile or aimless. On the contrary, the combinations send a clear message to potential hackers: We will find you. We will get you. We will destroy you. The advantage of combinations, from Nintendo’s point of view, is their deterrent effect. Anyone considering hosting a ROM site or facilitating digital piracy can now be in doubt and be deterred by the prospect of overwhelming legal action.
Is the strategy effective? It’s hard to say. On the one hand, you could argue that it’s not particularly efficient, as countless ROM sites abound. However, we do not know how many additional sites would exist otherwise for the deterrent effect. It’s also unclear how many times (if any) Nintendo has used its lawsuits to persuade ROM operators to shut down their sites without the need for legal action.
Even without these specific facts, most of which are either non-public or unknowable, my view is that it is in Nintendo’s best interest to make an example of one or two pirates, if only to warn them. others and persuade potential hackers to stay away. Having said that, I don’t think it would be beneficial for Nintendo to continue numerous pirates, because the deterrent effect would have diminishing returns.
Hackers have lessons to learn too
Nintendo’s lawsuit against Storman is interesting not only because of what it means for Nintendo, but also because of the lessons it teaches hackers. There are two key takeaways from the Storman suit. First and of course, does not facilitate online hacking. Online piracy is illegal, so it should be obvious. But even ignoring legal obligations (and there is a strong argument that older, less accessible works should be freely available to the public), the cost-benefit analysis simply fails to take into account.
ROM sites don’t make a lot of money. Indeed, many people turn to hacking to to avoid pay for the games. According to legal documents, Storman himself only earned $ 800 per month on his website when he was active. It doesn’t take a mathematician to realize that the benefit of $ 800 per month does not justify the risk of a negative verdict of $ 100 million.
The second lesson is about how hackers should deal with Nintendo after being sued. Storman took the worst possible approach. Despite having no legal training, Storman decided to go to court. Along the way, he missed deadlines, broke rules regarding the retention of evidence, argued non-existent and inconsistent legal defenses and counterclaims, and failed to get any kind of traction on his. defense. The result was decided in advance. In fairness, the pitfalls of legal representation are not limited to hacking cases. Indeed, one of my favorite sites is dedicated to highlighting the senseless and often hilarious actions of individuals attempting to represent themselves in court.
For reference, in 2018 Nintendo filed a similar complaint against a husband-wife couple who ran LOVERoms.com. Unlike Storman, the defendants in this case retained the services of a lawyer and negotiated a settlement with Nintendo. While the terms of the settlement have not been made public, there is a good chance that, as part of the settlement, Nintendo agreed not to pursue the $ 12 million in damages it claimed in the case. As they say, a lawyer who represents himself has a fool for a client.
While it is obvious that blatant copyright infringement should be avoided, it is equally obvious that many people choose to ignore this message. And it’s not just the uninformed legally, even intellectual property lawyers have committed a flagrant offense. In one of my all-time favorite cases, an intellectual property lawyer was found responsible for copyright infringement after having copied verbatim almost the entire legal brief of another lawyer. The Nintendo lawsuits don’t have the delicious irony of the copyright case, but the takeaway is largely the same: If you engage in blatant copyright infringement, don’t be. surprised if you get caught.
Over the past few years, Nintendo has made waves with new and innovative power-ups and costumes for its various characters. In Super Mario Bros 3, Nintendo introduced the Frog Suit, the Hammer Suit and the Tanooki Suit; in Metroid and Metroid Prime, Nintendo introduced the Varia Suit and the Phazon Suit; Now, into the real world, Nintendo has introduced the most valuable costume of all – the Cautionary-Tail costume.