Nintendo is seeking its third successful lawsuit against circumvention device vendors, this time against Team Xecuter.
Gaming giant Nintendo has filed a lawsuit against video game piracy group leader Gary Bowser, a Canadian national behind Team Xecuter, which law enforcement claims built and sold hacking devices. hacking allowing consoles to play unauthorized versions of games.
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Bowser was arrested last October, along with his alleged co-conspirators Team Xecuter for targeting Nintendo Switch, Nintendo 3DS, Nintendo Entertainment Classic Edition, Sony PlayStation Classic and Microsoft Xbox, the Department of Justice said.
“These defendants lined their pockets by stealing and selling the work of other video game developers – even going so far as to require customers to pay license fees to play stolen games,” said U.S. Attorney Brian Moran of the Western District of Washington in the announcement of the arrests. “This conduct not only harms billion dollar companies, it distracts the hard work of individuals working to advance in the video game industry.”
And now Nintendo comes to collect.
Nintendo alleges copyright infringement
The lawsuit accuses Team Xecuter of selling a circumvention device called “SX OS” which is designed to “hijack the Nintendo Switch by interrupting and circumventing its security features and technological protections. This thus allows the Nintendo Switch to be used for massive intellectual property theft and infringement,” according to Nintendo’s lawsuit against Bowser.
The filing stated that Team Xecuter would set up websites like “XECUTER.ROCKS” to sell their circumvention devices, provide support resources, and even become resellers of the hacking tools.
The lawsuit adds that “SX OS” is the most popular hacking software on the Switch and at one point was found “pre-installed on 89% of modified/hacked Nintendo Switch products available for illegal sale.”
In a slightly confusing twist, Nintendo’s US President is Doug Bowser and is named in the lawsuit against Team Xecuter’s Gary Bowser, making it a Bowser vs. Bowser lawsuit.
Nintendo told the court in its filing that Gary Bowser had been targeting Nintendo consoles for a long time, even before his association with Team Xecuter.
“Defendant has been a leader in the hacking and hacking community targeting Nintendo intellectual property more broadly for many years,” according to court documents. “Defendant trafficked in circumvention devices and helped facilitate the infringement of Nintendo video games not only on the Nintendo Switch, but also on older consoles, including the Nintendo DS, released in 2004, the Wii, released in 2006, and the Nintendo 3DS, released in 2011.”
The lawsuit also said Bowser was charged in Canada in 2008 for “an elaborate operation involving counterfeit Nintendo video games and the modification of video game consoles.”
Nintendo Going After Gaming Pirates with Gusto
Nintendo has already successfully sued two other sellers of circumvention devices, according to the lawsuit, for violations of the Digital Millennium Copyright Act (DMCA) – both in 2020.
The first was filed in a federal court in Ohio which barred the defendants from selling the circumvention devices and ordered them to pay Nintendo $2 million in judgment. In the second action, a Washington court issued a permanent injunction against other sellers of circumvention devices for infringing Nintendo’s copyrights. The Nintendo v. Bowser case was also filed in court in Washington.
Nintendo is asking the court to force Bowser and Team Xecuter to surrender their domains, seize the remaining circumvention devices, and award the company damages of $2,500 per violation of the DMCA’s anti-trafficking provisions and $150,000 per violation of copyright law.
“Alternatively…Nintendo may elect to receive actual damages as well as Defendant’s benefits from their breaches for amounts to be proven at trial,” according to the court documents. The lawyers added that Nintendo was asking for a jury trial.
Gary Bowser was arrested last fall along with his co-accused Max Louran, a French national in the Dominican Republic. Bowser has been deported to the United States, and the DoJ is seeking Louran’s extradition to stand trial in the United States.
Yuanning Chen, a Chinese national, is also named in the arrest indictment. Each is charged with 11 counts, including conspiracy to commit wire fraud, conspiracy to circumvent technological measures and traffic in circumvention devices, trafficking in circumvention devices and conspiracy to to commit money laundering.
Law enforcement has vowed to continue cracking down on these kinds of attacks on games in a booming market for misusing gamer credentials.
“Intellectual property theft harms American industry, game developers, and exploits legitimate game customers, which threatens the legitimacy of the commercial video game industry,” said the Acting Special Agent in Charge. Eben Roberts of Immigration and Customs Enforcement (HSI) Homeland Security Investigations, Seattle. “We are committed to working with our international partners to find criminals like these who steal copyrighted material and bring cybercriminals to justice.”
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