Nintendo Sues Individual Over Alleged Pirating, Circumventing of Nintendo Switch

On Friday, video game company Nintendo of America Inc. filed a complaint against individual Gary Bowser in the Western District of Washington over the defendant’s purported pirating operation that allegedly infringed its copyrights for the Nintendo Switch.

According to the complaint, the defendant “is one of the leaders of Team Xecuter, a pirate operation that unlawfully manufactures and traffics in an unauthorized operating system called the ‘SX OS,’ and accompanying piracy tools which install it (the ‘Circumvention Devices’), for commercial gain.” Nintendo alleged that the Circumvention Devices and SX OS’s purpose are “to hijack the Nintendo Switch…by interrupting and bypassing its technological security features and protections.”

In particular, Nintendo claimed that the circumvention devices have removed or circumvented Nintendo’s technological protection measures designed to protect its copyrighted software and video games from unauthorized copying and access. Allegedly, once the Nintendo Switch is circumvented, the SX OS can “run on Nintendo Switch, modify() the authentic, authorized Nintendo Switch operating system,” which purportedly allows users to “bypass the Technological Measures to obtain and play virtually any pirated game made for the Nintendo Switch, all without paying anything to Nintendo or” to other authorized game developers and publishers creating games for Nintendo Switch.

Nintendo proffered that defendant Bowser is one of a few members of Team Xecuter and running the day-to-day operations and is thought to be “‘the closest thing to a public face for” Team Xecuter. Purportedly, the defendant operates four websites, through which Team Executer ran its operation and had blog posts with Nintendo’s copyrighted game images. Nintendo also claimed that Bowser ran another site to post reviews and advertisements. Additionally, Bowser allegedly provides support to reseller websites through which the Circumvention Devices were trafficked, as well as various blogs and forums

According to Nintendo, Bowser “has been a leader in the hacking and piracy community targeting Nintendo’s intellectual property more broadly for many years.” Nintendo asserted that Bowser not only helped circumvent the Nintendo Switch, but the Nintendo DS, the Wii, and the Nintendo 3DS released in 2004, 2006, and 2011, respectively. Nintendo contended that “Team Xecuter’s unlawful SX OS is the most pre-installed piracy software on the Nintendo Switch. At one point, the SX OS was pre-installed on 89%of modded/hacked Nintendo Switch products available for illegal sale.” As a result, Nintendo argued that this has caused significant harm to Nintendo.

Nintendo added that as it has taken measures to address the purported circumvention, by the defendant and Team Xecuter “have rolled out new Circumvention Devices aimed at circumventing those newer Technological Measures.” Nintendo claimed it is a “game of whack-a-mole.”

Nintendo seeks declaratory judgment in its favor; equitable relief; a permanent injunction; an order for the seizure, circumvention, and destruction of all Circumvention Devices and copies of SX OS; to surrender all domain names and transfer them to Nintendo and to enjoin the defendants from further infringement; restitution; an award for damages, costs, and fees; and other relief.

Bowser was accused of violating the Digital Millennium Copyright Act.

Nintendo is represented by Gordon Tilden Thomas & Cordell LLP and Jenner & Block LLP.