Nintendo sues America's dumbest video game pirate

Is it any wonder Nintendo's attorneys did a collective, "Oh, no. He didn'"?
Written by David Gewirtz, Senior Contributing Editor

It's not unusual for game console makers to use the legal system to protect their games and intellectual property. It is, however, unusual for a game pirate to be this stupid.

Yesterday, I discussed how Supreme Court nominee Elena Kagan might be a supporter of fair use. Now, Yahoo! is reporting that Nintendo is suing a particularly dumb video game pirate.

Before I get into the details, let's talk about video games and fair use. Fair use (depending on interpretation, of course) allows owners of media to have a limited degree of freedom in use. For example, fair use says you can buy a book and then give that book to a friend. Fair use also says (again, depending on interpretation) that you can make a backup copy of a video game you purchased.

Little Jack's reign of destruction

I'll give you an example of where this makes sense. I have a friend. Let's call him Stan. Stan has a little four-year-old boy, Jack, who makes Conan the Barbarian look mellow. One of the few forms of entertainment that will calm Jack down is the Finding Nemo Xbox game for the original Xbox.

The problem is Finding Nemo's mean time between failure when in the presence of Jack can be measured in nanoseconds. We're not sure what superpower this child has, but on various occasions, the game disk has been found broken, covered with some noxious substance, somehow actually bent into a curve, had a chunk bitten out of it, and embedded three inches into the drywall.

After buying a few replacement copies of the game, Stan decided to make a backup copy of the disk, his right according to fair use.

When Jack outwitted his dad for the 20th or so time in a single month, Stan then decided to rip the game disk to his Xbox. There were two ways to hack the old Xbox back in the day: opening the box and installing a add-on board or following an arcane series of steps that would do the same thing without voiding the warranty.

Stan bought the board and voided the warranty. Technically, he was violating Microsoft's terms of service, violating the DMCA, and probably committing piracy. But the fact was, he'd bought and paid for the Xbox and bought and paid for something like six copies of Finding Nemo.

If fair use was invented for anyone, it was for Stan. He wasn't harming Disney (makers of Finding Nemo) or Microsoft. He'd bought the products fair and square.

This sort of semi-legal backup has existed in games and movies for years. The vendors aren't thrilled, but they generally don't fight hapless dads like Stan.

But then, there's NXPGAME of Queens, New York.

Unfair use

NXPGAME was asking for it. According to the civil lawsuit filed by Nintendo, the console maker tried to resolve this amicably. Oh, they really, really tried.

NXPGAME sells game copiers that let users download, copy, and play copies of DS and DSi games. These are essentially backup devices -- except, you know, they make it easy to play pirated games.

I went to Archive.org and looked up what NXPGAME.com was offering. Back in 2008, they sold add-on memory cards, hacking cards, and replacement parts.

Console vendors don't like vendors like this, but this isn't where NXPGAME went off the rails. Oh, no. It gets better.

Apparently, Nintendo's legal counsel contacted NXPGAME and after a sequence of conversations and letters back and forth, the operator of NXPGAME agreed to shut down his site and stop selling game copiers.

And he did. NXPGAME shut down and ceased operation.

But then, the owner of NXPGAME decided to tempt fate. The guy decided to launch a new Web site that was identical to the old site.

It gets worse. The former owner of NXPGAME.com redirected people who came to the URL of the site he'd agreed to shut down to the new site.

And yet, it gets worse. Not only did the guy go back on his agreement with Nintendo, he plastered the new Web site with Nintendo-owned trademarks.

So here you have a guy who ran a shady business and got caught. He does a deal to prevent any further trouble with a $15 billion dollar company and then not only goes back on his word, but both points people to the new site and swipes Nintendo's trademarks.

Is it any wonder Nintendo's attorneys did a collective, "Oh, no. He didn'"?

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