The Laws Video Game Companies Use to Pursue Pirates and Cheats – American University Intellectual Property Brief | #computerhacking | #hacking


Video game pirater Gary Bowser was recently a concurrent criminal and civil defendant for his leading role in video game pirating ring, Team Xecuter. This blog examines the laws that Nintendo of America used in these cases to show how video game companies pursue piraters such as Bowser.

Creator: Ryan Howerter License: CC-BY-NC-SA 2.0 Source: Creative Commons

In October
of 2020, the US government extradited Gary Bowser from the Dominican Republic
and charged him for his leading role in Team Xecuter, a video game pirating
ring which – amongst other activities – trafficked in various pieces of illicit
hardware that allows purchasers to hack popular gaming consoles. Six months
later, Nintendo of America filed a civil claim
against Bowser based on the same facts, though only insofar as they related to
distributing hardware that hacked Nintendo Switch consoles and allowed
purchasers to play and copy bootleg games. By February of 2022, Bowser plead
guilty to two
felony counts, was levied $4.5 million fine in his criminal case, and
settled Nintendo’s civil lawsuit against him for an additional $10
million.

Cases
like Bowser’s are not
that uncommon in the increasingly profitable video game hacking and
cheating sub-industry. Despite the illicit business’s growth, it is still not
entirely intuitive what legal claims a video game company would need to levy in
order to pursue these criminal actors. Nintendo v. Bowser provides a
useful proxy.

Nintendo based two of its three claims on section 1201 of the Digital Millennium
Copyright Act (“DMCA”), namely, 1201(a)(1) and 1201(b)(2). Section 1201 generally
prohibits devices designed to circumvent technological protection measures (“TPMs”).
Generally speaking, TPMs in some fashion restrict and secure the digital use of
a copyrighted work. For example, the software that prevents someone from
copying a movie file they “purchased” from Amazon Video or that blocks the HBO
Max video player from screen record are both TPMs. Bypassing them can open the
actor up to civil and criminal liability.

On the one hand, 1201(a)(1) prohibits the trafficking of software
which circumvents TPMs, which effectively control access to a
copyrighted work (“access controls”). On the other, 1201(b)(2) prohibits
trafficking in devices which circumvent TPMs which “effectively protects a
right of a copyright owner” (“copy controls”). In the context of video games,
every console or computer typically has to identify a digital “key” that indicates
a particular copy of the game as legitimately acquired. If the computer or
console cannot identify that key, the player cannot gain access to the game. These
measures are access controls governed under 1201(a)(1). Even once a player
gains lawful access to a title, however, there still remain TPMs that prevent
the player from exercising a copyright owner’s exclusive rights in
the game. These “copy controls” are governed under 1201(b)(1).

In Bowser’s case, Nintendo applied 1201(a)(1) to the
function of Team Xecuter hardware that allowed purchasers to play pirated
Nintendo Switch games by illegally circumventing access controls. If these
players otherwise attempted to boot up illicit files on legitimate Nintendo
hardware, TPMs would have prevented their access to the copyrighted video
games. Next, Nintendo applied 1201(b)(1) to hardware which allowed purchasers
to copy Nintendo titles using the devices, separately from actually playing
them. Legitimate Nintendo hardware protects against this type of infringement.

Finally, Nintendo based a third and final claim on Section 501 of the
Copyright Act. Section 501 provides copyright owners with a civil claim against
the unauthorized exercise of any one of the exclusive rights within Section 106. On this
count, Nintendo alleged Bowser violated its public display rights in three of
its video games when Team Xecuter’s website used images from these games in
promotional materials.

Bower’s case provides a helpful window into how video game
companies use US copyright laws alongside the criminal code to enforce against
piracy.To that end, Nintendo v. Bowser is only the latest in a
long line of enforcement actions by video game companies against criminal
actors such as Gary Bowser. With the amount of money at stake, they are likely
only to increase in frequency.



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