Photo Credit: Magnus Engø (
Natalie Bravo is anIPilogueWriter and a 2L JD Candidate atOsgoodeHall Law School.
Like its , the 2017 Nintendo Switch is not immune to hacking and piracy. The modification of video game consoles typically enables the unauthorized use of illegally obtained game cartridge data (stored in ROMS) or fan-made ‘’ content. Some modifications allow . Hacking and piracy in the video game industry has even sparked
Nintendo of America (“NOA”) has been consistently strict and litigious in regard to any modification of its intellectual property. They recently brought forward of Game & Watch hacking and sued Recently, NOA settled with modification chip vendor Uberchips for
On April 16, NOA filed a lawsuit against Canadian hacker Gary Bowser in a The video game company alleges that This is not the first time Bowser has butt heads with Nintendo. Nintendo has taken action against Gary Bowser’s alleged piracy of their products as far back as .
Life imitates art as Bowser shares a name with . Adding to the confusion, . While ironic, the Bowsers bear no relation to one another.
Gary Bowser allegedly lead the hack creator group Team Xecuter. According to the United States Department of Justice (“DOJ”), Team Xecuter is . They were arrested in late 2020 and charged with 11 felony counts, with the possibility of extensive prison time. As reported by the DOJ, the Nintendo Switch, NES Classic, and the Nintendo 3DS are targets of console hacks. . The group allegedly created and sold unauthorized hardware that allowed individuals to modify gaming consoles and install unlicensed software. For example, the SX OS, a prominent circumvention device sold by the group, can hack a Nintendo Switch, bypass security functions including technological protection measures and run pirated games.
In Nintendo of America Inc v Bowser 2021, NOA alleges that the development and distribution of the . Team Xecuter’s products allegedly circumvented and compromised NOA’s deliberately implemented Technological Measures, including encrypted identifiers requiring verification upon powering on and other server confirmation processes. NOA claims that users utilizing SX OS may download pirated games free of charge and propagate illegal copies via user sharing or peer-to-peer (“P2P”) sharing. According to NOA, this unauthorized Nintendo Switch activity results in
The SX OS is the on the Switch, at one point being installed on 89 percent of all modified Switches on the market. Illegal distribution undoubtedly affects Nintendo’s business, but also causes “” between Nintendo and its external developers.
Team Xecuter has historically rejected the piracy label and fought back against copyright claims. In a , the team claimed that Nintendo misrepresented Xecuter products, including the SX OS, and that they promote “” on modified consoles. Before this lawsuit, the group , calling for the right to repair and modify consumer electronics. Video game companies, including Nintendo, have . While Team Xecuter may explore and right to repair defenses, the team’s may hurt their arguments. As of May 2021, Team Xecuter has issued no publicized statements in response to NOA’s claims.
NOA seeks damages relating to the alleged injury to their IP and violations to the Anti-Circumvention and Anti-Trafficking provisions of . Under the ., NOA seeks $2,500 USD for each trafficked Switch and $150,000 USD for each copyright violation. Lastly, NOA seeks to shut down Bowser for good.