Nintendo’s War With 1Fichier is Not Over – But Could Be For $0.00

When a company like Nintendo puts out a press release, the entire world pays attention. This week was no different.

 

Nintendo has been locked in a legal battle with French file-hosting service 1fichier for the past five years. The basic facts don’t appear to be in dispute; Nintendo informed 1fichier that it had found pirated copies of its games on the service, but 1fichier refused to take them down.

 

Nintendo responded with legal action in France and in 2021, won its case. By not taking the pirated content down, 1fichier became liable for damages, the court ruled.

 

Unhappy with the decision, 1fichier filed an appeal, but on April 12, 2023, the Paris Court of Appeal confirmed that 1fichier’s owner, DStorage SAS, “engaged its civil liability for failing to withdraw or block access to illicit copies of Nintendo games hosted on its platform, despite the notifications Nintendo had sent to it for such purposes.”

Why Would 1fichier Deliberately Expose Itself?

Nintendo’s dispute with 1fichier sounds like a straightforward copyright case; hosting companies generally avoid liability for user-uploaded content but can pay the price if they refuse to take content down. The fundamental question not addressed by Nintendo’s release is why 1fichier would intentionally expose itself to so much risk and then keep digging.

 

For the sake of all parties involved and our own sanity, legal opinions in this matter are best left to the experts. However, we’re informed that this lawsuit is the product of a fundamental disagreement, not on the removal of content per se, but on the conditions laid out in French law for a notice to be considered valid.

DStorage’s Relationship With Customers and Content

As the operator of 1fichier, DStorage states that it provides file-hosting services for its customers and, as such, the company has a duty to ensure that their data is held securely.

 

The file-hoster says that the files on its servers are uploaded by users, and it is their choice whether to keep those files entirely private, or share them more widely with others. In any event, DStorage insists it has no way of knowing what files its users upload, or what decisions they make in terms of keeping files private or communicating them to the public. It does note, however, that independent court experts found that 80% of the data on its servers is never made public.

 

Complicating matters further are 1fichier’s claims that it receives many abusive takedown notices. As a supplier of services to its customers, one gets the impression that 1fichier prefers to give the benefit of the doubt to its users, until such time that the sender of a takedown notice can show that their complaint is shown to be justified.

Nintendo Demands Takedowns

Court documents state that Nintendo “regularly submitted notifications” to DStorage relating to “illicit copies of videogames” that the company had identified as being hosted on 1fichier’s servers. In January 2018, Nintendo used a registered letter to advise DStorage of “the existence of links allowing the downloading” of pirated copies of Super Mario and Pokémon games.

 

The response from DStorage gave Nintendo two options. The company could initiate legal proceedings for the purpose of obtaining an order to establish the “manifestly unlawful nature of the content.” Alternatively, Nintendo could enter into a contractual relationship with DStorage that would grant access to takedown tools while indemnifying 1fichier against abusive takedowns.

 

Nintendo responded within days, demanding the takedown of the allegedly infringing content mentioned in the first letter while advising the existence of additional links to other unauthorized copies of the company’s games. In common with its first response, DStorage informed Nintendo that under the LCEN law, content that is alleged to infringe copyright is not “manifestly illegal.”

LCEN and the Fundamental Dispute

According to the text of France’s LCEN law, “online public communication services” cannot incur liability for content posted by users “if they were not effectively aware of their manifestly illicit nature” or if they “acted promptly to remove this data” when they were made aware of it.

 

DStorage/1fichier says it did not remove the content reported by Nintendo because it wasn’t manifestly illegal and, in any case, Nintendo had failed to meet reporting standards required under French law.

 

According to 1fichier’s commentary on its Facebook page, the unlawful nature of the content complained of must be obvious to a non-lawyer.

 

“That is to say that there should be no room for doubt, and the diligent host therefore does not have to devote resources to verifying the veracity of the allegations. It is also not up to the host to contest the reality of the rights of third parties. In addition, Intellectual Property is never presumed and must necessarily result from an originality that the rightful claimant must demonstrate.”

Other Contested Issues on Reporting Standards

According to 1fichier, the LCEN requirements for a takedown notice must include a description of the disputed content and its precise location, plus the reasons why the content must be removed, including relevant law and justification based on facts.

 

The company says that in the first instance, rightsholders are required to contact the person who actually published the allegedly infringing content online, and then supply a copy of the correspondence with that person in support of their takedown notice.

 

1fichier further claims that Nintendo was unable to prove that any of the files from the hundreds reported were actually made available to the public. We cannot independently verify that Nintendo failed to meet these alleged standards, but we are informed that this is the basis of the dispute.

 

In a nutshell, 1fichier will side with its customers and their files until claims meet certain standards. Alternatively, rightsholders can sign a contract (pdf) that grants access to takedown tools while indemnifying 1fichier of all damages and losses in the event that users’ rights are infringed.

 

There is no charge for rightsholders to use the program, and we’re informed around 50 are happy to use it; Nintendo is not one of them but the company could join almost immediately.

Paris Court of Appeal

In its decision the Paris Court of Appeal ruled that the Nintendo takedown notices “met the formal conditions” prescribed by the LCEN law. It further noted that Nintendo could not contact the person/s who made the allegedly infringing content available to the public, since 1fichier does not make its users’ contact details available on its website.

 

In broad terms, the court also found that since Nintendo is such a well-known company, with millions of games sold around the world, it could “rely on presumptions both for the ownership of their rights and for the originality of the video games.”

 

1fichier notes that files reported by Nintendo carried names such as ‘GC0013.part4.rar or PKMMEURRCGI.part1.rar or PUM.cia’ which reveal little about their contents, even when considering the profile of Nintendo. It also pointed to the availability of the takedown contract that Nintendo declined.

 

The Paris Court of Appeal ultimately sided with Nintendo, but 1fichier strongly believes that it complied with the letter of the law and says it will file an appeal against the decision. The company says that law requires certain proof to accompany a takedown notice but according to the decision of the court, none is required.

 

“The court said that in the process of the notice, we can not ask for any kind of proofs….proofs of rights, proofs of originality (no IP without), proofs of the counterfeit … it removes everything from the laws,” 1fichier says.

 

How the appeal will play out and when is unknown but this is certainly one of the more unusual cases seen in recent years.

 

If nothing else, the dispute highlights the balance of power surrounding infringement allegations. 1fichier’s claim that it receives abusive takedown demands every day show that notifications cannot always be taken on face value. Nintendo clearly wishes to protect its rights and wants 1fichier to take its claims on face value or face legal action.

 

1fichier seems to think that its users should receive the benefit of the doubt, or alternatively, Nintendo can sign on the dotted line and accept liability in case things go wrong. One can’t help but think that somewhere in all of that there was a compromise to be found but this is no ordinary case.

 

For those used to dealing with the DMCA, it may feel completely alien.