Gaming giant Nintendo has filed a lawsuit against video-game piracy group ringleader Gary Bowser, a Canadian national behind Team Xecuter, which law enforcement said built and sold hacking devices that enabled consoles to play unauthorized versions of games.
Bowser was arrested last October, along with his alleged Team Xecuter co-conspirators for targeting Nintendo Switch, the Nintendo 3DS, the 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 make customers pay a licensing fee to play stolen games,” said U.S. Attorney Brian Moran for the Western District of Washington in the announcement of the arrests. “This conduct doesn’t just harm billion-dollar companies, it hijacks the hard work of individuals working to advance in the video-game industry.”
And now Nintendo is coming to collect.
Nintendo Alleges Copyright Violation
The lawsuit accuses Team Xecuter of selling a circumvention device called the “SX OS” which is designed to “hijack the Nintendo Switch by interrupting and bypassing its technological security features and protections. This thereby allows the Nintendo Switch to be used for massive intellectual property theft and infringement,” according to the lawsuit filed by Nintendo against Bowser.
The filing outlined that Team Xecuter would stand up websites like “XECUTER.ROCKS” to sell their circumvention devices, provide support resources and even become resellers of the hacking tools.
The lawsuit adds the “SX OS” is the most popular piracy software on the Switch and at one point was found “pre-installed on 89 percent of the modded/hacked Nintendo Switch products available for illegal sale.”
In a slightly confusing twist, Nintendo’s American president is Doug Bowser and is named in the suit against Team Xecuter’s Gary Bowser, making this a Bowser v. Bowser suit.
Nintendo told the court in its filing that Gary Bowser has a long history of targeting Nintendo systems, even before his association with Team Xecuter.
“Defendant has been a leader in the hacking and piracy community targeting Nintendo’s intellectual property more broadly for many years,” the court documents said. “Defendant has trafficked in circumvention devices and helped facilitate infringement of Nintendo video games not only on the Nintendo Switch, but also on earlier consoles, including the Nintendo DS, released in 2004, the Wii, released in 2006, and the Nintendo 3DS, released in 2011.”
The suit 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 circumvention-device sellers, according to the lawsuit, for violating the Digital Millennium Copyright Act (DMCA) — both in 2020.
The first was filed in an Ohio federal court which blocked the defendants from selling the circumvention devices and ordered them to pay $2 million in judgement to Nintendo. In the second suit, a Washington court issued a permanent injunction against other circumvention device sellers for violating Nintendo’s copyright. The Nintendo case against Bowser was also filed in Washington court.
Nintendo is asking the court to force Bowser and Team Xecuter to surrender their domains, seize the remaining circumvention devices and to award the company damages of $2,500 per violation of the anti-trafficking provisions of the DMCA and $150,000 per violation of the Copyright Act.
“In the alternative… Nintendo may elect to receive actual damages as well as defendant’s profits from their violations in amounts to be proven at trial,” the court documents said. The attorneys added Nintendo is requesting a jury trial.
Gary Bowser was arrested last fall along with his co-defendant Max Louran, a French national in the Dominican Republic. Bowser was deported to the U.S. and the DoJ is seeking Louran’s extradition to stand trial in the U.S.
Yuanning Chen, a Chinese national, is also named in the arrest indictment. Each is charged with 11 felony counts including conspiracy to commit wire fraud, conspiracy to circumvent technological measures and to traffic in circumvention devices, trafficking in circumvention devices and conspiracy to commit money laundering.
Law enforcement pledged continued crackdowns against these kinds of attacks on games amid a booming market for gamer credential abuse.
“Theft of intellectual property hurts U.S. industry, game developers and exploits legitimate gaming customers, all of which threaten the legitimacy of the commercial video-game industry,” said Acting Special Agent in Charge Eben Roberts of U.S. Immigration and Customs Enforcement’s Homeland Security Investigations (HSI), 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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