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  1. Nintendo Fears Relaunch of Pirate Site So Asks for Legal Protection Nintendo won a $2.1 million summary judgment against the operator of the pirate site RomUniverse last month. The California federal court denied a permanent injunction, however, noting that the site had already shut down. Nintendo now asks the court to reconsider this decision, as there are signs that RomUniverse may relaunch after all. Nintendo regularly takes legal action against pirate sites and services. The gaming company has sued several sites that offer pirated games, including RomUniverse, which it took to court two years ago. The download portal, which also offered movies and books, was accused of massive online copyright infringement. Even worse, Nintendo’s complaint said that the site also charged users for access to premium features. RomUniverse Fought Back The site’s operator, Los Angeles resident Matthew Storman, clearly disagreed with these allegations and without an attorney decided to defend himself in court. In his view, the site wasn’t breaking any laws so he asked the court to dismiss the case. Nintendo picked this defense apart and found the court on its side. This meant that Storman had to face the copyright infringement charges, as well as millions of dollars in potential damages. The RomUniverse site initially remained online but last summer, after discussions with Nintendo’s legal team, the operator agreed to shut it down. But that didn’t end the case. $2.1 Million Judgment Nintendo was pleased to see RomUniverse offline, but the lawsuit continued. The gaming company moved for summary judgment and demanded millions of dollars in damages. Last month, US District Court Judge Consuelo Marshall ruled on the matter, largely siding with Nintendo. The court granted a $2.1 million summary judgment against the RomUniverse operator, for infringing the game company’s copyrights and trademarks. Nintendo didn’t get everything it was after. Judge Marshall denied a permanent injunction against Storman, as Nintendo failed to show that it was suffering irreparable harm. Additionally, the fact that Storman had already shut down the site showed there was no imminent threat of further infringements. Nintendo Asks Court to Reconsider New court filings reveal that Nintendo isn’t planning to let the permanent injunction go just yet. The company has filed a motion for reconsideration arguing that, under the recently implemented Trademark Modernization Act, there is a ‘mandatory’ presumption of irreparable harm for trademark infringers. Perhaps just as crucially, Nintendo is worried that RomUniverse hasn’t shut down permanently and could make a comeback in the near future. In a signed declaration, Nintendo’s lawyer William C. Rava says he spoke with Mr. Storman over the phone earlier this month. At the time, RomUniverse’s operator didn’t rule out a comeback. However, he did offer assurances that this would be without any Nintendo titles. Nintendo Fears a Comeback Still, this potential relaunch has the Japanese gaming giant worried and it believes that a permanent injunction preventing such a comeback is warranted. “Defendant’s threat to continue to operate RomUniverse to distribute videogame ROMs, using the same website he used for the past several years to mass-infringe Nintendo’s copyright and trademark rights, necessitates the entry of an injunction,” Nintendo informs the court. In addition, the motion highlights that Mr. Storman has already disregarded previous legal obligations. The court previously awarded sanctions that required a monthly $50 payment, but this money has yet to come in. “This failure to make even the modest $50/month payment, an amount that he proposed and agreed to, demonstrates that Nintendo has no adequate remedy at law for Defendant’s past or future infringement and underscores the need for a permanent injunction.” RomUniverse Wants Damages Scrapped Nintendo’s concerns are not the only remaining issue, Mr. Storman himself has also filed a motion for reconsideration. According to RomUniverse’s founder, the court erred in awarding $2.1 million in damages. Mr. Storman contests that Nintendo suffered actual damages and also questions whether game copyrights were registered on time. Both motions are opposed by the other side, so it is ultimately up to the court to decide who’s right and wrong. At the time of writing, however, the RomUniverse website remains offline. — A copy of Nintendo’s follow-up to the motion for reconsideration is available here (pdf). We also have a copy of Storman’s motion for reconsideration (pdf) and Nintendo’s reply (pdf) Nintendo Fears Relaunch of Pirate Site So Asks for Legal Protection
  2. Nintendo Awarded $1.13m After File-Hosting Site Failed To Remove Pirated Games Nintendo has booked a major legal victory against DSTORAGE SAS, the operator of file-hosting site 1fichier. After the platform failed to remove infringing copies of Nintendo games from its servers following takedown demands, a Paris court has ordered the company to pay $1.13m in damages. The Court noted that rightsholders do not need a court order to have pirated content removed from online platforms. There are many options for those seeking to store and share files online. File-hosting platforms such as Mega.nz have become a huge success story for their owners but in order to avoid legal troubles, strict rules must be adhered to. Not only must hosting platforms respond to law enforcement requests, there is the not insignificant issue of thousands if not millions of DMCA notices to process, in order to maintain safe harbor provisions under local law. According to historical reports from rightsholders, French file-hosting site 1fichier hasn’t always played by the rules. 1fichier Has Been Irritating Rightsholders For Years As far back as 2014, rightsholders including the RIAA have been complaining about a lack of cooperation from 1fichier. The site, which according to data from SimilarWeb has around 35 million visitors per month, fails to respond adequately to takedown demands, resulting in its reporting to the USTR more than five years ago. In 2018, the powerful Entertainment Software Alliance (ESA) also weighed in, reporting 1fichier to the USTR for its takedown failings. ESA, whose members include gaming giants Nintendo, Activision and EA, claimed that 1fichier was reluctant to respond to takedown notices, noting that just 0.59% of content was removed following complaints. By 2020 that situation had apparently deteriorated, with takedown rates dropping to just 0.12% Nintendo Takes Legal Action Against 1fichier Disappointed with the lack of responses to takedown demands, Nintendo filed a lawsuit in France against DSTORAGE SAS, the operating company of 1fichier. The aim was to compel 1fichier to cooperate while obtaining damages for what the company claimed were infringements of its copyrights. In a decision handed down on May 25, 2021, the Judicial Court of Paris sided with Nintendo, ruling that DSTORAGE SAS could be held liable after failing to remove illegal copies of Nintendo games hosted on its platform, despite receiving copyright notifications demanding that content should be removed or blocked. According to a statement from Nintendo, the Court ordered DSTORAGE to pay 935,500 euros ($US1.13m) in damages but also clarified the responsibilities of file-hosting services such as 1fichier when it comes to the processing of copyright takedown notices. The Court said it was not necessary for rights holders to obtain a decision from a court before asking for infringing content to be removed, so complaints should be actioned accordingly. Decision Welcomed By Nintendo Applauding the decision of the Court, Nintendo says that the ruling sends the clear signal that by refusing to block access to pirated content after receiving official takedown notices, services such as 1fichier and their owners can be held liable. “Nintendo welcomes the decision of the Paris Judicial Court. The message it sends is clear: by refusing to block access to content such as unauthorized copies of video games notwithstanding prior notification, providers of shared hosting services such as Dstorage (1fichier) are liable under French law and are required to remove or make impossible access to such content,” Nintendo says. “Services that do not comply with the law may be ordered to pay damages to right holders whose intellectual property rights have been infringed.” Nintendo says the decision is not only important for its own business but for the entire videogame industry too, since file-hosting platforms like 1fichier cannot now insist that a court order is required before content can be removed. Nintendo Awarded $1.13m After File-Hosting Site Failed To Remove Pirated Games
  3. Nintendo Wins $2.1 Million Judgment Against Pirate Site Operator Nintendo has won a $2.1 million summary judgment against the owner and operator of the now-defunct pirate site RomUniverse. A California federal court ruled that the man, a Los Angeles resident, uploaded and distributed pirated Nintendo games. In addition, he profited from mass-scale copyright infringement by charging paid subscriptions. In September 2019, gaming giant Nintendo filed a lawsuit against the game download portal RomUniverse. The website facilitated massive online copyright infringement of many popular Nintendo titles, according to the complaint filed at a California district court. Nintendo said that RomUniverse made things worse by profiting from these copyright infringements by selling paid premium accounts that allowed users to download as many games as they wanted. RomUniverse Fought Back The site’s operator, Los Angeles resident Matthew Storman, clearly disagreed with these allegations. Without an attorney, he decided to defend himself in court. In his view, the site wasn’t breaking any laws and he asked the court to dismiss the case. Nintendo picked this defense apart and found the court on its side. This meant that Storman had to face the charges, as well as millions of dollars in potential damages. The RomUniverse site also remained online initially but last summer, after discussions with Nintendo’s legal team, the operator agreed to shut it down. However, that didn’t end the case. Nintendo Requests Summary Judgment After investing a substantial amount in legal fees, the gaming giant moved for a summary judgment and $15 million in damages. “This is a straightforward video game piracy case, and the material facts are undisputed,” Nintendo informed the court. “For over a decade, defendant Matthew Storman owned and operated the website RomUniverse.com. He populated the website with pirated copies of thousands of different Nintendo games and distributed hundreds of thousands of copies of those pirated games.” Storman, who continued in court without a lawyer, clearly disagreed. In his opposition brief, he denied that RomUniverse offered for download and distributed pirated ROMs of thousands of Nintendo games. Storman also argued that he never uploaded any games himself. Earlier this week, US District Court Judge Consuelo Marshall ruled on the matter, largely siding with Nintendo. Court Sides With Nintendo According to the court, Nintendo provided sufficient evidence to show that Storman is liable for direct, contributory, and vicarious copyright infringement. In addition, trademark infringement claims were also accepted. Storman’s denials failed to convince the court as he admitted to uploading content to the site in a previous deposition. “Defendant filed a declaration in opposition to the Motion wherein he declares that he ‘denies and disputes that he uploaded any files to said website and at no time did he verify the content of said ROM file’, which is directly contradictory to his sworn deposition testimony wherein he testified that he uploaded the ROM files onto his website,” Judge Marshall notes. “Furthermore, Defendant testified at his deposition that his website ‘indicated’ that copies of Nintendo’s copyrighted video games were available for download on the website.” Storman also profited from the infringements of users by charging for premium access to the site. He testified that, during 2019, the site generated between $30,000-36,000 in revenue, which was his main source of income at the time. Substantially Lower Damages Nintendo requested more than $15 million in copyright and trademark infringement damages, but the court doesn’t want to go this far. Judge Marshall believes that $35,000 statutory damages for each of the 49 copyrighted works is sufficient. This adds up to $1.7 million, which is substantially lower than the $90,000 per work requested by Nintendo. “Considering Defendant’s willful infringement, the Court finds $35,000 statutory damages for each infringed copyright […] would compensate Plaintiff for its lost revenue and deter Defendant who is currently unemployed and has already shut down the website,” Judge Marshall writes. The trademark damages are also much lower than requested. Nintendo’s original motion asks for $400,000 for each of the 29 trademarks, but the court awarded $400,000 for all combined, which could be an oversight. “The Court finds the requested $400,000 in statutory damages, which equals approximately $14,286 in statutory damages for each of the 28 counterfeit marks, is appropriate,” the order reads. Finally, Judge Marshall decided not to issue a permanent injunction against Storman. Nintendo failed to show that it suffered irreparable harm, and the fact that Storman already shut down the site shows that there’s no imminent threat of further infringements. All in all, the court orders (pdf) the former RomUniverse operator to pay a total of $2,115,000 in damages. “The Court Grants Plaintiff’s Motion for Summary Judgment as to Plaintiff’s copyright infringement, unfair competition and Lanham Act claims, and awards Plaintiff $1,715,000 in statutory damages under the Copyright Act and $400,000 in statutory damages under the Lanham Act for a total of $2,115,000 in statutory damages.” Nintendo Wins $2.1 Million Judgment Against Pirate Site Operator
  4. Nintendo raises Switch output to record 30m on stay-at-home demand Boom in paid subscriptions helps to drive gaming device's success The Nintendo Switch is five years old. (Photo by Wataru Ito) NAOKI WATANABE, NATSUMI KAWASAKI and HIDEAKI RYUGEN, Nikkei staff writersMay 2, 2021 20:30 JST TOKYO -- Nintendo will ramp up output of the Switch to about 30 million units this fiscal year, Nikkei has learned, marking an all-time high for the flagship gaming device in a bid to capitalize on continuing stay-at-home demand. The Kyoto-based company approached multiple parts suppliers about accelerating production. People with direct knowledge of the matter verified plans to expand output. Nintendo is taking an unusual step for a device that is already in its fifth year of existence. The strategy will have to contend with a number of new rival offerings that have appeared in the last year. Since debuting worldwide in 2017, the Switch has sold roughly 80 million units as of the end of 2020. Combined with this fiscal year's projected totals, sales of the device would reach 110 million units, eclipsing the numbers attained by the Wii console. In addition, Nintendo will release a follow-up Switch model capable of better graphics. This will be the first such offering since the 2019 release of the Nintendo Switch Lite. In the previous fiscal year through March 31, stay-at-home demand brought about by the pandemic fueled blockbuster sales of the social game "Animal Crossing: New Horizons" and the new "Monster Hunter" title. Nintendo appears to have broken a new consolidated profit record in fiscal 2020. Such an earnings report would echo the results from fiscal 2007, when the company released its two hit devices the Wii and the DS. Another driver of the Switch's robust performance is the Nintendo Switch Online paid subscription service. The platform allows people to pair with one another and game, and the number of subscribers has more than doubled in a year -- 26 million as of September last year. However, a global chip shortage has put a squeeze on the digital device and automotive industries. Nintendo President Shuntaro Furukawa said in February the company has secured an adequate supply of components for the time being, but did not rule out future problems. "We have experienced higher-than-expected demand this year as well, and there is a possibility that certain products will be in short supply, especially in Japan," said Furukawa. Meanwhile, the Switch is competing with Sony group's PlayStation 5, which was released in November last year and is loaded with high-performance chips. The console is bundled with an online service that has over 47 million paid subscribers. Microsoft launched its Xbox Series X that same month. The rise of mobile games and cloud gaming has also posed a challenge. Yet the Switch has been able to remain competitive in its fifth year on the market. "The Switch can act as both a console and a handheld device, so it has lived to the fullest in stay-at-home environments," said Hideki Yasuda, senior analyst at Ace Research Institute. Source: Nintendo raises Switch output to record 30m on stay-at-home demand
  5. Nintendo Wins US-Wide Injunction Against Seller of RCM Loader ‘Piracy’ Device Last November, Nintendo filed a lawsuit against an Amazon seller who distributed RCM Loader, a device that has the "sole purpose" of allowing people to play pirated video games by circumventing the Switch console's technological protection measures. A court has now handed down a permanent injunction to prevent such sales anywhere in the United States. Nintendo is currently engaged in a war of attrition against individuals and groups who help people to pirate and play unlicensed Switch games. Products and individuals involved with the infamous Team-Xecutor became targets last summer and alongside, Nintendo has been chipping away at other sellers of similar circumvention devices. Lawsuit Filed Against Amazon Vendor Last November, Nintendo filed a lawsuit against Le Hoang Minh, an Amazon vendor doing business under the name ‘Winmart’. According to the gaming giant, the trader was selling RCM Loader, a Switch device marketed as a plug-and-play solution for injecting payload files to allow booting into custom firmware (CFW), including Team-Xecutor’s SX OS. “Once this circumvention has occurred, the unauthorized CFW modifies the authorized Nintendo Switch operating system, thereby allowing users to obtain and play virtually any pirated game made for the Nintendo Switch. All of this happens without authorization or compensation to Nintendo or to any authorized game publishers,” the company explained. Le Hoang Minh, who according to Nintendo is a resident of Vietnam, was sent a DMCA notice by Nintendo via Amazon, citing the anti-circumvention provisions of the DMCA. As a result, a specific listing was taken down by Amazon but the defendant subsequently filed a counternotice stating that Nintendo had made an error. As a result, the listing was restored. In its lawsuit, Amazon claimed that Le Hoang Minh was not only a seller of RCM Loader devices but also the manufacturer too, going on to demand the maximum statutory damages available under the DMCA and a broad injunction preventing any future sales. Nintendo also demanded relief for the defendant’s alleged abuse of the DMCA’s counternotification system. Defendant Fails to Respond, Nintendo Moves For Default In a motion for default judgment filed this week, Nintendo says that it filed its lawsuit in response to the defendant’s counternotice, in order to keep the Amazon listing down. However, the defendant failed to respond to the lawsuit or enter into discussions with Nintendo. As a result, Nintendo demanded a default judgment on each of its claims, arguing that since the defendant is in Vietnam, only a ruling from a US court would allow it to prevent sales of RCM Loader taking place in the United States. To promote what Nintendo describes as “an efficient resolution” of the matter, the gaming giant reduced its damages claims to just $2,500 for all actions carried out by the defendant in breach of the anti-trafficking provisions of the DMCA. “This request for a $2,500 award is intended to be very conservative and does not reflect anything close to the full amount of damages Nintendo could reasonably seek from Defendant,” the company writes. “Nintendo could…credibly seek a separate award for every device Defendant sold — almost certainly many devices, given that Defendant’s RCM Loader device was available online for many months. However, rather than attempt to quantify Defendant’s total sales, Nintendo seeks to facilitate an efficient resolution of this case through entry of judgment awarding damages for a single § 1201 violation.” Nintendo also informed the court that it had incurred considerable costs pursuing the case but was not seeking to have those reimbursed. However, the company still demanded a judgment in its favor in respect of the DMCA violations, the misrepresentations made by the defendant in his DMCA counternotice, and the request for a permanent injunction. Court Sides With Nintendo After considering Nintendo’s motion for default, the court ruled that should be granted. In a final judgment issued Thursday, the court laid down the terms. A permanent injunction was granted against Le Hoang Minh and all other individuals and entities acting in concert, restraining all from circumventing or assisting in circumventing any technological security measures that effectively control access to Nintendo’s copyrighted works. The same are also restrained from manufacturing, offering for sale, distributing, exporting or otherwise trafficking into the United States “any and all products, services, devices, components or parts thereof” that are designed or produced for circumventing security measures in Nintendo’s consoles, products and protected works. Turning to RCM Loader and any product with identical function, the court restrained the defendant from carrying out sales, distribution, imports and/or shipping to any person or entity in the United States. Le Hoang Minh is also banned from indirectly infringing, facilitating, encouraging, promoting or inducing the infringement of Nintendo’s copyrights, whether in existence now or in the future. In an effort to prevent sales on platforms such as Amazon, the defendant was restrained from offering RCM Loader or any similar product for sale or distribution. Any seller or online marketplace who receives notice of the order must also “immediately cease and permanently refrain” from offering any such products in the United States. The court also authorized Nintendo to seize and destroy all circumvention devices and software that violate its copyrights or exclusive licenses. It further granted the $2,500 in statutory damages requested by Nintendo and reminded the defendant that any violation of the order may be punishable as contempt of court. Nintendo’s Motion for Default Judgment can be found here (pdf) The Final Judgment and Permanent Injunction can be found here (pdf) Nintendo Wins US-Wide Injunction Against Seller of RCM Loader ‘Piracy’ Device
  6. Nintendo has some intriguing indie games to fill out the Switch’s future lineup OK, I admit that I’m a little bummed that we didn’t see an update on Hollow Knight: Silksong during today’s Nintendo Indie World event. But we got enough other cool looking games that I’m not too upset. Nintendo has done a great job showcasing indies on Switch during the console’s first four years. Along with those awesome Nintendo first-party games, it has really been these smaller digital titles that have kept the Switch’s library looking so attractive. And today, we saw some that I imagine many of us are going to want to download. Play them soon A few of them are even coming out later today. The Longing jumped out at me with its moody, hand-drawn art. It also looks like an adventure game of sorts, which sings to this old LucasArts fan. There Is No Game: Wrong Dimension is also coming out later today, somehow looking even weirder than The Longing. It gives me some WarioWare vibes. It looks like you’re playing snippets of minigames. Above: There Is No Game. Image Credit: Nintendo Fez is also heading to Switch later today. This is a classic indie game that should appeal to anyone who enjoys 2D platformers with a heavy emphasis on puzzle-solving. As the Switch continues to become such an indie-focused machine, it’s important to get classics like Fez on the console. Look at all these games I also saw a few action games that look intriguing. Skul: The Hero Slayer is a 2D roguelite that gives me a bit of a Dead Cells impression, both because of its pixel art and its fast-paced 2D fighting. Then there’s Aztech: Forgotten Gods, a 3D action game! You don’t often see the indies take on that genre, and its Mesoamerican aesthetic helps it stand out from all the fantasy and sci-fi stuff that we usually see. Above: Aztech: Forgotten Gods. Image Credit: Nintendo Nintendo also showed off some neat games that focus on story, like Road 96. This one is about a teenager going on a road trip, and its procedural story should make for a lot of replayability. Nintendo closed the show with Oxenfree II: Lost Signals, a sequel to one of the better-liked indie games ever. I was also impressed by Aerial_Knight’s Never Yield, an auto-runner set in a Tokyo-Detroit mashup. It was an impressive showcase. I know that some Nintendo fans have been worried that 2021 would be a quiet year for the Switch. That may be true when it comes to Nintendo first-party games, but these indies should help keep the system relevant for a lot of players while they wait Breath of the Wild 2. Source: Nintendo has some intriguing indie games to fill out the Switch’s future lineup
  7. Take a trip back to 1997 with an incredibly rare, never-opened Nintendo 64 Disk Drive dev kit Get an up-close look in new photos Image: Shane Luis YouTuber Shane Luis has tweeted some amazing photos of a new-in-box game development kit for the Nintendo 64’s Disk Drive (64DD), a very rare peripheral never released outside of Japan that played games off proprietary floppy disks. You can (and should!) read look through the whole thread starting with this tweet, but I’m going to share some of the photos here in this article. Here’s what the box looks like — nothing flashy. I was asked to verify and photograph a Nintendo 64 Disk Drive (64DD) Development Kit from a private video game collector. The system was new in box and needed to be carefully documented. This is what it looks like to unbox one. pic.twitter.com/X2PflhtemW — Shane Luis (@RerezTV) March 24, 2021 Inside that dark blue box on the top right were five 64DD Development Disks, which were a dark blue instead of the gray used for retail games. 64DD Development Disks are blue unlike the retail games released in Japan that were grey. pic.twitter.com/Q6VFuCDnmn — Shane Luis (@RerezTV) March 24, 2021 The development kit also included a special adapter to let developers plug in two N64 cartridges at once instead of just one. When everything was connected together, here’s what that looked like: When attached together they mount directly on the top of a Nintendo 64 through the cartridge slot like this. pic.twitter.com/oCitZEqyUz — Shane Luis (@RerezTV) March 24, 2021 Here’s the 64DD itself, which has a blue trim around the disk slot used to signify it as a development device that matches the color used for the development disks: The top of the unit is designed to sit directly under a Nintendo 64 console. They connect through the port you can see on the top. On the bottom you'll find a fastener designed to lock the two together. pic.twitter.com/792Vy8GYZY — Shane Luis (@RerezTV) March 24, 2021 And here’s the whole 64DD development system connected together and attached to a Nintendo 64. It’s huge! (Though seemingly not as huge as the PS5.) When combined all together you're ready to start developing 64DD games! Unfortunately this system was never used and the 64DD platform failed to take off. If the 64DD was a success who knows what might have happened! pic.twitter.com/GWDjC2J3GA — Shane Luis (@RerezTV) March 24, 2021 I’m not sure I’ll ever be able to see a 64DD myself since the peripheral wasn’t much of a success (only nine games were released for it), and it only came out in Japan. But these photos might be the next best thing and are just a plain interesting look at something from Nintendo’s past. Again, I strongly recommend scrolling through the whole thread in full or checking out his album of photos on the Internet Archive. Source: Take a trip back to 1997 with an incredibly rare, never-opened Nintendo 64 Disk Drive dev kit
  8. Nintendo has asked the court to issue a default judgment and permanent injunction to shut down several stores that sell Team-Xecuter's Switch hacks and mods. None of the defendants has responded in court so the gaming company wants third-party intermediaries, including domain registrars, to be covered by the order as well. For many years, the infamous Team-Xecuter has been a thorn in Nintendo’s side. The group offers hardware and software solutions that allow people to install and play pirated games on Nintendo consoles, including the Switch. After cracking Switch’s original technical protections in 2018, Team-Xecuter released a new range of products this year. These SX Core and SX Lite chips work on all Switch classic and Lite consoles, while previous ‘hacks’ were limited to a subset of devices. In addition, the devices no longer have to be connected to a dongle or computer to boot the consoles into the custom SX OS firmware. This wasn’t just a big improvement for end-users, Nintendo also saw it as a major threat. To stop the distribution of the new chips in its tracks the Japanese gaming giant launched two lawsuits in the US in May. One targeted the US-based Uberchips vendor and the other was filed against a group of unknown operators who run multiple stores, including TXswitch.com, SXflashcard.com and Axiogame.com. Some websites disappeared shortly after the lawsuit was filed but Nintendo believes that many have simply continued doing business under new domain names, as communication with customers also revealed. However, none of the unknown operators responded in court within the given deadline. Nintendo doesn’t expect that any of the alleged foreign store operators will defend themselves so, late last week, it asked a federal court in Seattle, Washington, to issue a default judgment with a permanent injunction. Interestingly, Nintendo doesn’t seek any monetary damages from the defendants. While the company believes that the stores are causing “irreparable harm,” the defendants remain unknown and aren’t likely to pay damages anyway. “Nintendo does not seek an award of monetary damages, and such an award likely would be ineffective here, as Defendants have refused to appear or participate in this lawsuit, despite the fact that they are indisputably aware of its existence,” the gaming company writes. Instead, Nintendo seeks a permanent injunction that requires the store operators to stop any infringing activity and hand over their domain names. As such an order may be ignored as well, the injunction should also apply to third-party services, including domain registrars and registries, to work with these sites. Without such an order, Nintendo believes it will continue to suffer losses and it sees no other options available. “[T]he threatened injury to Nintendo outweighs whatever harm—if any—Defendants would experience from an injunction. Defendants have no legitimate purpose in trafficking in illegal circumvention devices,” Nintendo writes. Because several defendants have swiftly moved to other domains and avoided other enforcement measures, the proposed injunction further covers “any successor sites,” services such as Skype, Discord, or Facebook, as well as online marketplace platforms, including AliExpress. From the proposed injunction The latter means that, if the injunction is granted, Nintendo can also target the sellers on these other platforms and services, if needed. This doesn’t just apply to shutting down accounts, it also allows for the seizure of any infringing devices. The court has yet to sign off on the proposed default judgment and injunction. If granted, it may make it a little harder for these sites to operate, but it’s unlikely that it will be 100% effective. Team-Xecuter itself is not directly affected by the injunction, but it’s not happy with Nintendo’s actions. The group previously accused the gaming company of censorship, monopolistic control, and legal scare tactics. “Of course we are not happy with this kind of censorship that is being enforced by legal injunctions that make us out to be something we are not: a copyright-infringing ring of software pirates,” Team-Xecuter tells TorrentFreak. The case against Uberchips runs separately from the one against the foreign store operators. The Uberchips operator previously requested a motion to dismiss the lawsuit and both parties are exploring options to settle the matter without going to trial. — A copy of Nintendo’s request for a default judgment and permanent injunction is available here (pdf) Source: TorrentFreak
  9. The words Nintendo and pornography can only ever be seen together when the former is trying to distance itself from the latter. That's the case today after Nintendo's lawyers filed a DMCA takedown notice against a game called Peach's Untold Tale. It depicts the princess and many other Nintendo characters having fun in many ways that are completely unacceptable to the gaming giant. https://torrentfreak.com/images/peaches2.jpg (NSWF image) Over the past several years it has become increasingly apparent that Nintendo isn’t prepared to tolerate instances where its copyright or trademark rights may have been breached by third parties. Many of Nintendo’s responses are fairly straightforward, targeting platforms that offer Nintendo games without permission or those that provide tools, software and workarounds that undermine protection mechanisms designed to prevent copying. Some, however, don’t fall neatly into any of these categories. Peach’s Untold Tale Early 2012, South America-based developer Ivan Aedler posted to the Legend of Krystal forums revealing a new project titled Peach’s Untold Tales (PUT). It’s billed as a freeware adult parody game that documents the ‘adventures’ of the Shigeru Miyamoto character Princess Peach, who was first seen in Super Mario Bros. way back in 1985. The title can be best explained as being ‘hentai’ in style which, according to a dictionary definition, is a subgenre of the Japanese genres of manga and anime characterized by overtly sexualized characters and sexually explicit images and plots. Without stepping into XXX territory, it’s perhaps best to quote from an interview Aedler gave in 2019 in which he revealed the premise. “It’s a game where players take on the role of Princess Peach. Bowser is invading, the citizens of Mushroom Kingdom are under Kamek’s spell to be super aroused, and Mario is missing. What’s a princess to do? Stomp some enemies, or start putting out, to save her kingdom,” he told Doujins. After Eight Years, Nintendo Has Seen Enough Finding a relevant screenshot to display without needing some element of censorship to accommodate younger readers proved pretty fruitless, so those interested in viewing some of PUT’s gameplay can do so on Xvideos.com, where just one video of the game in action has more than two million views (NSFW). Needless to say, the acts witnessed are not something one would normally associate with Nintendo products or characters. It will come as no surprise then after either waiting eight years or perhaps just discovering the game for the first time, Nintendo has ordered its legal team into action. PUT made Microsoft-owned Github its development home but in a DMCA notice served on the platform late last week, the gaming giant explained that PUT infringes the copyrights of its Super Mario video game franchise. Listing a range of copyright registrations covering Peach, Toad, Mario is Missing, Super Mario Maker, Super Mario Bors., Super Mario Kart and Super Smash Bros. Brawl, to name just a few, the company demanded the takedown of the entire project including its Github.io webpage and Github.com download pages. Aren’t Parodies Covered By Fair Use? Anyone familiar with the adult industry will be only too aware that porn parodies are widespread and are carefully crafted so as to take full advantage of the relevant exception in copyright law. In this case, however, Nintendo doesn’t feel that exception is available. In its takedown notice filed with Github, Nintendo said it had considered all fair use exceptions but after a review, ultimately found that it “does not believe [PUT] qualifies as a fair use of Nintendo’s copyright-protected work.” According to intellectual property attorney Maxine Lynn, who in 2018 published a piece on XBIZ covering the legality of porn parodies, the evaluation of whether use is fair is made on a case-by-case basis, balancing the rights of authors and the free speech rights of the public. A close example to the case in hand appears to lie in the 1978 case of Walt Disney Productions v. Air Pirates. After the latter produced a comic book featuring 17 Disney characters including Mickey Mouse involved in sex and drugs, Disney sued and the court found that the use was not fair. “The U.S. Ninth Circuit Court found that the amount of the portion copied exceeded permissible levels, noting that, ‘[w]hen persons are parodying a copyrighted work, the constraints of the existing precedent do not permit them to take as much of a component part as they need to make the ‘best parody.’ Instead, their desire to make the ‘best parody’ is balanced against the rights of the copyright owner in his original expressions,” Lynn wrote, citing the decision. The important position that remains unchanged today is that such fair use cases can be both complex and expensive to defend. With that in mind, it seems unlikely that developer Ivan Aedler will contest the DMCA takedown filed by Nintendo, since that puts the company in the position of having to file a lawsuit against him to prevent Peach’s Untold Tale from being reinstated on Github. At the time of writing, Aedler had not responded to TorrentFreak’s request for comment. Source: TorrentFreak
  10. Nintendo has obtained an injunction against several online stores selling Team-Xecuter modchips. The game company has thus far been unable to identify the operators but last week's indictment of several alleged Team-Xecuter members sheds new light on this case. One of the stores sued by Nintendo is believed to be operated by the 'Team-Xecuter conspiracy'. Last week, the US Department of Justice indicted three alleged members of Team-Xecuter. The group, whose modchips and software solutions help to facilitate game piracy, has long been a thorn in the side of Nintendo. The authorities didn’t mention any involvement from the Japanese gaming giant in its investigation. However, considering the close eye that it kept on Team-Xecuter, the company was likely consulted down the line. Nintendo Sued Switch Hack Stores The timing of the criminal prosecution is interesting as well. It follows legal action in which Nintendo worked to shut down ROM sites and stores that sell Team-Xecuter products. In fact, one of the stores that Nintendo has an ongoing case against, Axiogame.com, is believed to be operated by Team-Xecuter. Axiogame.com is one of the stores Nintendo sued in May. That case, which lists nine defendants in total, was filed against “John Does” as the operators are unknown. After filing the lawsuit Nintendo did its best to identify those running it, but without success. Axiogame = Team-Xecuter? The US Government appears to know more. Although all claims have yet to be proven, the Team-Xecuter indictment links Axiogame.com to game piracy conspiracy. “The enterprise also sold its circumvention devices directly to individual consumers through its own online platforms. For example, LOUARN and CHEN sold modchips through an online marketplace called axiogame.com. This website sold modchips developed by the enterprise in addition to a variety of gaming accessories,” it reads. After the criminal prosecution was announced Axiogame.com and Maxconsole.com, a review site also believed to be operated by Team-Xecuter, remained online. However, that changed yesterday and, at the time of writing, both can’t be reached. Court Grants Injunction Against Switch Hack Stores Nintendo has booked a victory of its own against Axiogame and the other online stores after a Washington federal court granted its request for a default judgment and permanent injunction. The permanent injunction requires the store operators to stop any infringing activity, destroy any infringing products, and hand over their domain names. The injunction also applies to third-party services, including hosting companies and domain registrars and registries, who can be compelled to shut the sites down as well. The injunction covers the sites Anxchip.com, Axiogame.com, Flashcarda.com, Mod3dscard.com, Nxcard.com, SXflashcard.com, TXswitch.com, Usachipss.com, Lowbr.com, Masterpl.com, Brujoon.com, Agresu.com, as well as any successors that may appear. Axiogame.com’s downtime doesn’t appear to be a direct result of the injunction, as the site was already offline before it was issued. It seems more likely that it’s related to the criminal prosecution. It will be interesting to see whether Nintendo will act on the information that was made public through the indictment. Now that it knows who’s allegedly behind Axiogame.com, it can replace the “John Doe” defendant with actual names. — A copy of the default judgment and injunction obtained by Nintendo against the various stores is available here (pdf) Source: TorrentFreak
  11. If you’re familiar with the dreaded Switch phenomenon known as “Joy-Con drift,” you’re likely privy to the unique feeling of rage you feel when the movements of your controllers aren’t aligning with what’s happening on your screen. One child has evidently had enough, and he and his mother are now suing Nintendo over the ongoing issue. Joy-Con drift is a widespread issue that affects the function of the Nintendo Switch’s joysticks. The complaint that was filed Monday in the California’s Northern District Court alleges that Nintendo has had knowledge of the problem “for years, and still, has done nothing to adequately fix it or alert consumers of its existence.” Wandering controller inputs aren’t limited to the older Switch, either; the problem has plagued Switch Lite users as well. Indeed, Nintendo users have been complaining of the issue for so long that this week’s complaint isn’t even the first class-action suit about it. This latest suit was filed by a California woman—on behalf of herself, her young son, and other similarly disgruntled consumers of all ages—who purchased a Nintendo Switch in December 2018 and cycled through not one, but two sets of Joy-Con controllers by June 2020, both of which experienced the drift malfunction. The Switch itself retails for $300, while the replacement Joy-Cons retail for $80 for a pair. Had she known about the issue, the complaint states, “she would not have purchased the Nintendo Switch or additional controllers, or she would have paid substantially less for them.” In particular, the suit takes aim at Nintendo’s failure to notify users in any meaningful way that the issue may occur, be it on product packaging or through any kind of marketing. Moreover, the complaint notes, the company’s president Shuntaro Furukawa apologized for the issue earlier this year. However, rather than remedy the problem, Nintendo continues to stock shelves with products that are or have the potential to become functionally defective, a move the complaint characterizes as “unlawful conduct.” “Defendant continues to market and sell the Products with full knowledge of the defect and without disclosing the Joy-Con Drift defect to consumers in its marketing, promotion, or packaging,” the complaint states. “Upon information and belief, Defendant has had a financial motive to conceal the defect, as it did not want to stop selling the Products, and/or would need to expend a significant amount of money to cure the defect. Despite Defendant’s affirmative misrepresentations as to the functionality of the Products, Defendant could have easily disclosed the defect to potential consumers in any number of ways, including on the product’s packaging or the set-up screen.” Nintendo did not immediately return a request for comment about the suit. The suit is seeking $5,000,000 in damages. Should they lose in court, or should this suit go to arbitration like the previous one, we always have the option of simply replacing the Switch joysticks entirely, as one hacker recently demonstrated. But who wants to go to all that trouble when Nintendo could, you know, just fix the problem for us? View Court Documents Here Source
  12. During the summer, a modder and his team known for creating a steady flow of games based on Nintendo's Mario titles released The Missing Link, a fan-made Zelda game that aimed to bridge the gap between Ocarina of Time and Majora's Mask. Now, after a handful of months in circulation, Nintendo's lawyers have filed a copyright complaint to have it taken down. With a video game history dating back decades, Nintendo is perhaps the most well-known brand in the market. Nintendo’s characters including Mario and Zelda are much loved but despite the availability of many official titles, some fans feel that some deserve an update or have some gaps filled in their gaming universes. One of these fans is modder Kaze Emanuar who, over the past several years and in conjunction with his team, has released a steady flow of unofficial Nintendo-based gaming titles, much to the delight of fans. The Missing Link During the summer, Emanuar and partners released The Missing Link, a fan-made title that utilized the engine from the now 20-year-old game The Legend of Zelda: Ocarina of Time, the first Zelda game with 3D graphics. The purpose of The Missing Link was to bridge the gap between the critically-acclaimed 1998 title and the 2000 release of Majora’s Mask. To play The Missing Link, players need a copy of The Legend of Zelda: Ocarina of Time in .n64, .z64 or .wad format (compatible with N64 and Wii) and the assistance of a trio of patches, after which the new game can be enjoyed utilizing the assets from the donor game. The title was well-received by the gaming press but given its nature and the increasingly litigious stance of Nintendo, it was only a question of when the gaming giant would send in its legal team to deal with the rogue code, not if. The Missing Link Has Gone Missing Since its inception, The Missing Link has been hosted on Github Pages but following a new complaint from a Nintendo of America-appointed attorney, it has now been resigned to history. “The copyrighted works are the video games in Nintendo’s The Legend of Zelda video game franchise, including without limitation the audio-visual works, story lines, characters, and imagery in The Legend of Zelda: Ocarina of Time (U.S. Copyright Reg. No. PA0000901848), The Legend of Zelda: Majora’s Mask (U.S. Copyright Reg. No. PA0001940271), and others,” the complaint filed with the Microsoft-owned platform reads. “Nintendo has reviewed the reported material and does not believe it qualifies as a fair use of Nintendo’s copyright-protected work.” The complaint goes on to demand the removal of the website at https://tml.z64.me/ and any related repositories, stating that the URL in question contains “an unauthorized derivative work” of Nintendo’s The Legend of Zelda video game franchise “in violation of Nintendo’s exclusive rights.” Gone But Not Forgotten While Github responded to the complaint as expected by taking the project down, an archive copy still exists, as does the ROM patcher tool required to transform backup copies of Ocarina of Time into The Missing Link. And, of course, the necessary .n64, .z64 or .wad files continue to be available from a number of ROM sites and archives (despite Nintendo doing whatever it can to close several down), meaning that The Missing Link will live on, if only underground. This takedown by Nintendo will not have come as a surprise to Emanuar and his team. Considering the fate of earlier projects such as Super Mario 64 Online, Super Mario 64 on the PC and in a browser, a Donkey Kong remake, plus many others, having Nintendo on their tail was almost certainly a calculated occupational hazard. And, while unpalatable to some, it is ‘only’ a DMCA takedown, not a lawsuit, which would be an entirely different matter for all involved. Source: TorrentFreak
  13. Nintendo has targeted the developer of an open-source Switch payload injector with a cease and desist notice. Faced with copyright infringement threats, the DragonInjector developer decided to shut the project down. While he doesn't agree with the allegations, an expensive legal battle is not an option. Nintendo is doing everything in its power to stop the public from playing pirated games on the Switch console. Earlier this year, the game company launched several lawsuits against websites that sell Team-Xecuter products. These cases are ongoing. In the meantime, Nintendo has identified other “payload injector” threats as well. This includes the open-source project Dragoninjector, which was developed and sold by MatinatorX. DragonInjector is a small piece of hardware that fits in the Switch game card slot. It allows users to install and load custom firmware on their console. While it’s not advertised as a pirate tool, with third-party code it can be used to play pirated games on older Switch models. Nintendo’s Cease and Desist Notice A few days ago, DragonInjector’s developer formally announced the end of the project. In a message on Discord, a Nintendo cease-and-desist order is cited as the main reason. MatinatorX doesn’t agree with the gaming company’s copyright infringement claims but he doesn’t want to fight them either. “While I don’t believe the project was or is unlawful in any way, I do not have the resources to go to court to prove that for a hobby, especially considering the project netted a loss of a few thousand dollars overall,” he writes. The cease-and-desist notice was sent by Nintendo’s Canadian lawyers a few weeks ago. It accuses the developer of copyright infringement by advertising and selling the DragonInjector. According to the notice, this breaks the Switch’s technical protection measures. “Your unlawful manufacture, advertisement, distribution, offering for sale and sale of the DragonInjector via the Dragon Injector Website infringes our client’s rights,” the lawyers write. “More specifically, your activities amount to copyright infringement, secondary infringement, and the circumvention of technological protection measures in violation of sections 3, 27, and 41.1 of the Copyright Act, RSC 1985, c. C-42,” they add, referring to Canadian copyright law. “$12 million CAD in Damages” The developer was urged to immediately stop any infringing activities. If not, Nintendo reserves the right to take further action, the notice warns, adding that the company previously won $12 million CAD in damages in a ‘similar’ case. The threat comes with a list of additional requests. Among other things, MatinatorX must hand over all related accounting, including the number of devices sold as well as any profits that were made. Down but Not Out After receiving the cease-and-desist, the developer immediately halted DragonInjector’s sales. In addition, he reached out to Nintendo through his lawyer to settle the matter. That request has not been answered yet, but it’s clear that the DragonInjector project is done. MatinatorX is aware of the legal uncertainties but says he’s not looking for legal advice from outsiders. He has discussed and explored all options already over the past weeks and shutting things down came out as the best solution. “I know it sucks, I really do – I’ve poured the better part of two years of my free time into this project – but that’s just how it is. I could let myself be depressed, or I could dive into my other projects and ideas. I’m choosing the latter,” he writes. The old Dragoninjector.com site is now gone. Instead, the developer registered Draconicmods.com where he will continue to do business. He has set up a legitimate company and is moving forward with DragonMMC, which is a custom Switch kickstand. Needless to say, DragonMMC won’t have the payload injection capability that was initially planned, but MatinatorX says he can make it something worthwhile nonetheless. And there’s another project in the pipeline as well; DragonDSI, a micro-HDMI port for the Switch Lite. A copy of the full cease and desist letter, sent by Nintendo’s Canadian lawyers, is available here (pdf) Source
  14. A federal court in Seattle has clarified that all third party intermediaries must cut their ties to a group of Nintendo 'piracy hack' stores. The order was prompted by GoDaddy's refusal to transfer the Stxwitch.com domain to Nintendo. While the new order applies to any “variant or successor” of the stores, it's not clearly defined what this actually means. Nintendo is doing all it can to stop the distribution of piracy enabling hacks and modchips, including SX Core and SX Lite. Earlier this year, the company sued a group of known ‘offenders’ that sell these tools. After the stores failed to show up in court, Nintendo requested a default judgment and permanent injunction, which was granted soon after. Injunction ‘Shuts Down’ Modchip Stores The injunction was a clear victory as it allowed the Japanese gaming giant to shut down several sites, including TXswitch.com, SXflashcard.com and Axiogame.com. These domain names were later transferred to the company as well. That success wasn’t permanent though. While some stores may have vanished permanently, others have continued under new names. In the case of Txswitch.com that was pretty obvious. A day after Txswitch.com was pulled offline, the store made a comeback on Stxwitch.com. This site looks nearly identical to the old one and even uses the same logo and code. GoDaddy Refuses to Take Down New Domain This type of ‘domain hopping’ is common in pirate circles and Nintendo was somewhat prepared for it. The injunction includes a section which states that “any variant or successor” of the stores is also covered, so Nintendo swiftly asked domain registrar GoDaddy to suspend the new domain as well. However, GoDaddy refused. Despite the mention that successors are covered, the domain registrar requested a new court order which specifically mentions Stxwitch.com. To resolve this standoff Nintendo went to court again, requesting clarification, which came this week in the form of a new order, issued by US District Court Judge Thomas Zilly. STXWITCH.COM Has to Go Offline “STXWITCH.COM is a ‘variant or successor’ domain name as that term is used in the Judgment,” Judge Zilly writes, stressing that all intermediaries have to cut their ties with the site. “Defendants and all third parties acting in active concert and participation with Defendants, including registrars, are ENJOINED from supporting or facilitating access to STXWITCH.COM, and are ORDERED to cease to use the domain name STXWITCH.COM and immediately transfer STXWITCH.COM to Nintendo’s control.” At the time of writing the store is still online, but with this order in hand, that likely won’t be the case for long. However, that doesn’t mean that it can’t reappear under yet another new domain. All ‘Variants and Successors’ are Covered If that happens, Nintendo doesn’t have to go to court again, Judge Zilly clarifies. GoDaddy and all other domain registrars, registries, and other intermediaries will have to take action against sites operated by the defendants, no matter what domain they use. “For avoidance of doubt, the Court’s Judgment applies to all domain names controlled by Defendants through which Defendants engage in the conduct found to be unlawful in this lawsuit, whether or not the exact domain name is explicitly listed in the Judgment,” the order reads. While this sounds very clear and obvious, it does raise some questions. When is a new domain a ‘variant or successor’? Questions Remain In the case of Txswitch the similarities were rather striking, as the same code and design were used. But what if Nintendo ‘suspects’ that the defendants are making a comeback from a different domain with a different look? What evidence does Nintendo need to show that a new domain is a ‘variant or successor’ and is it then up to a company such as GoDaddy to ‘judge’ whether this is enough? These are all hypothetical situations but it is likely that GoDaddy refused Nintendo’s initial request because they don’t want to be the arbiter. Future refusals will come at a price, however, as Judge Zilly ruled that failing to comply opens the door to punitive and monetary sanctions. Legal uncertainty aside, this order doesn’t necessarily end the ‘whack-a-mole.’ There are plenty of foreign registrars and registries that don’t fall under the jurisdiction of US courts. Some of these will demand a local court order from Nintendo, which will start the process all over again. TorrentFreak reached out to Stxwitch to ask what their plans are for the future. We have yet to hear back, but at the time of writing, they are still accepting new orders. — A copy of the order from US District Court Judge Thomas Zilly is available here (pdf) Source: TorrentFreak
  15. Competitive Smash Bros. players hoping to test their skills online have received a major setback after Nintendo stomped them with a cease-and-desist. According to Nintendo, The Big House tournament was set to use pirated copies of Super Smash Bros. Melee and special code that allows lagless online play, in breach of its intellectual property and branding rights. Video games players all over the world love Nintendo’s games and Nintendo loves gamers – as long as they play by the video game giant’s strict sets of rules. Nintendo has a history of intolerance towards those who use its content without permission and has taken action against fans who copy, modify or recreate its titles for new platforms. Yesterday the company made its latest move, delivering a big blow to the competitive Smash Bros. gaming community. The Big House Gets Dismantled By Nintendo Since 2011, The Big House event has taken place annually, acting as a convention for Super Smash Brothers fans from around the world. In light of the extraordinary events of 2020, The Big House recently made the decision to take its event online for the first time in its history, hoping to continue the fun despite a worldwide pandemic. For Nintendo, however, the manner in which this event was set to take place was simply too much. According to The Big House, Nintendo contacted them with a cease-and-desist notice, warning that the organizers do not have permission to host or broadcast the event. “We are forced to comply with the order and cancel The Big House Online for both Melee and Ultimate. Refund information will be sent shortly. We apologize to all those impacted,” the “heartbroken” organizers announced yesterday. Nintendo Issues Cease-and-Desist to Shut Down The Big House The announcement from The Big House indicated that Nintendo’s objections were based in the proposed use of a third-party project known as ‘Slippi‘. This set of tools would’ve been absolutely crucial to the proposed event as they provide Super Smash Bros. Melee with a broad range of features simply unavailable in the official version. This includes automatically saved replays, live match mirroring, and rollback netcode that allows people to smoothly play the game online. By banning the use of Slippi, the online tournament is no longer possible. Nintendo: Pirated Games and Misuse of Branding Unacceptable In a statement obtained by Polygon, Nintendo expressed appreciation for the “love and dedication the fighting game community has for the Super Smash Bros. series,” adding that it had partnered with numerous Super Smash Bros. tournaments in the past. However, in the case of The Big House, it simply could not tolerate the manner in which the event would be taking place. “Unfortunately, the upcoming Big House tournament announced plans to host an online tournament for Super Smash Bros. Melee that requires use of illegally copied versions of the game in conjunction with a mod called ‘Slippi’ during their online event,” the company said. “Nintendo therefore contacted the tournament organizers to ask them to stop. They refused, leaving Nintendo no choice but to step in to protect its intellectual property and brands. Nintendo cannot condone or allow piracy of its intellectual property.” Why The Use Of ‘Slippi’ is Unacceptable to Nintendo To fully comprehend Nintendo’s position requires an explanation of how Slippi functions and what its requirements are. Publicly launched in June 2018, Slippi is a custom version of the popular Dolphin emulator for the Gamecube and Wii, one adapted for Super Smash Bros. Melee online play. Its Slippi Online component provides a key feature that the original game doesn’t – the addition of “rollback netcode” that allows for online play of a quality suitable for the testing environment of competitive online gaming. However, to achieve this the player must also have a copy of the Super Smash Bros. Melee game file on their computer to run through the emulator. While having a backup copy of a piece of software is not illegal in the US, it’s still a big no-no for Nintendo, especially when the resulting game content will be streamed online. Inevitable Backlash With outlets like Kotaku now describing the cease-and-desist as “absurd bullshit” and threads on Reddit boiling over in hatred towards Nintendo by some of its most hardcore fans, Nintendo appears to have shot itself in the foot once again. As this tweet shows, some fans simply aren’t prepared to accept that Nintendo “appreciates the love”, as history appears to show otherwise. Source: TorrentFreak
  16. In a new lawsuit filed in the US, Nintendo sues an Amazon seller who distributed RCM Loader, a device that the company claims has the sole purpose of allowing people to play pirated video games by circumventing the Switch console's technological protection measures. On top, Nintendo is also suing the defendant for abusing the DMCA's counter-notification system. Nintendo’s ongoing battle to prevent people from playing pirated content on Switch consoles is showing no signs of slowing down. Its main targets thus far have been distributors and sellers of products offered by the infamous Team-Xecutor but a new lawsuit filed in the United States yesterday targets a seller of another jailbreak-style device. Circumvention of Technological Protection Measures As detailed in a number of earlier and similar lawsuits, Nintendo is determined to take action against any product that undermines the security features baked into consoles such as the Switch. These features are designed to prevent unauthorized access to the console and its games with the aim of preventing people from playing pirated content. According to the latest lawsuit, a defendant identified as Le Hoang Minh, who on Amazon does business under the name ‘Winmart’, sold a device known as RCM Loader. The dongle/device, which operates via a USB-C connector, is marketed as a plug-and-play solution for injecting payload files that allow booting into custom firmware (CFW), including Team-Xecutor’s SX OS. “Once this circumvention has occurred, the unauthorized CFW modifies the authorized Nintendo Switch operating system, thereby allowing users to obtain and play virtually any pirated game made for the Nintendo Switch. All of this happens without authorization or compensation to Nintendo or to any authorized game publishers,” the company’s complaint reads. Another feature of the system criticized by Nintendo is the ability for owners of legal copies of games to copy and share those games with others who are also using unauthorized custom firmware. Nintendo says it has been working hard to reduce the availability of SX OS and similar custom firmware but due to the trafficking of devices like RCM Loader, that battle continues. Defendant Sold RCM Loader Via Amazon According to the lawsuit, Vietnam-resident Le Hoang Minh, sold RCM Loader devices on Amazon so, to counter this distribution, Nintendo filed a DMCA takedown notice on October 21, 2020, citing 17 U.S.C. § 512(c) and requesting that the listing be removed. While Amazon did take the listing down, the removal was only temporary. This short-lived takedown was due to the seller submitting a DMCA counter-notice to Amazon on November 4, 2020, under 17 U.S.C. § 512(g)(3), claiming that the listing was non-infringing and had been taken down in error. Defenses Listed in the DMCA Counter Notice Attempting to cover most available defenses, relevant or not, the counter-notice from Le Hoang Minh is comprehensive if nothing else. In addition to claiming that the devices are not copyrighted and are therefore in the public domain, the Amazon seller advised the platform that Nintendo’s claim is faulty due to the company failing to provide any copyright registration information in its takedown notice. “The complainant does not hold the copyright to the material in question, is not the designated representative of the copyright holder, and therefore lacks standing to assert that my use of the material is a violation of any of the owner’s rights,” it added. In addition to a laundry list of alleged technical failings in Nintendo’s takedown notice, Amazon was advised by the defendant that the use of “the material” was legally protected “because it falls within the ‘fair use’ provision of the copyright regulations” and if Nintendo disagrees with that assertion, it “must” work with the seller to solve the dispute. “This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3). I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law,” the counter-notice reads. Importantly, the declaration adds that Le Hoang Minh submits to the jurisdiction of any appropriate US district court in case of a legal dispute with Nintendo. Nintendo: Challenge Accepted The lawsuit filed yesterday is a clear indication that Nintendo believes it has the law on its side, in respect of the illegal nature of RCM Loader and the validity of the DMCA counter-notice that attempted to reinstate the listing. “Defendant manufactures, imports, offers to the public, provides, and otherwise traffics in a circumvention device and software that circumvents the technological measures on the Nintendo Switch — specifically, the RCM Loader,” the company states. “On information and belief, the only purpose of Defendant’s circumvention device is to circumvent Nintendo’s technological protection measures.” Demanding maximum statutory damages for each violation of the relevant sections of the DMCA, Nintendo also demands a permanent injunction preventing the defendant from offering to the public or otherwise trafficking in circumvention devices in the future. On top, Nintendo is demanding relief for the defendant’s alleged abuse of the DMCA counter-notification system by misrepresenting material facts to Amazon, crafted to have the listing restored on the platform, in violation of Nintendo’s rights. Finally, the gaming giant asks the court to issue an order that will allow for the seizure, impoundment and destruction of all RCM Loader devices in the defendant’s possession, including any related software. The complaint can be found here (pdf) Source: TorrentFreak
  17. Nintendo has asked a US federal court to clarify that domain registrars have to take action against new domains of online stores that sell Team-Xecuter modchips. The request comes after GoDaddy refused to transfer the domain name TXSWITCH.COM to Nintendo, as that name wasn't specifically mentioned in the existing injunction. Nintendo is doing everything in its power to stop the public from playing pirated games on the Switch console. Their major adversary is the infamous ‘hacking’ group Team-Xecuter, which released ‘jailbreak’ hacks and modchips for the popular game console. Criminal and Civil Lawsuits Last month, the US Department of Justice indicted three alleged members of the hacking group. This was a big move, but one that failed to take the group, or even its website, out of business. The same can be said for several online stores that sell modchips and hacks for the Switch and other consoles. As part of a civil lawsuit, filed by Nintendo earlier this year, a federal court in Seattle granted an injunction that required several foreign stores to shut down. Again, this was easier said than done. Since the store operators ignored all communication, Nintendo asked their domain registrars to transfer the domain names, as permitted by the court. This is precisely what happened. A few days after granting the injunction, Txswitch.com and other domains were signed over to the videogame company. ‘Hack’ Store Hops to New Domain However, a day later Txswitch already appeared to have made a comeback, operating from Stxwitch.com. This site looks nearly identical to the old one and even uses the same logo and code. This type of ‘domain hopping’ is common in pirate circles and Nintendo hoped that the registrar GoDaddy would take the new domain down as well. This would be in line with the injunction, which states that “any variant or successor” was also covered by the order. Godaddy Demands Detailed Order In the event, GoDaddy refused to take action without a court order that specifically spells out the new domain name, a new filing by Nintendo explains. “Nintendo requested that the STXWITCH.COM domain be immediately transferred as a successor or variant of TXSWITCH.COM pursuant to the Judgment. GoDaddy responded to outside counsel for Nintendo stating that they required the domain name to be listed in an order to take action,” Nintendo writes. The game company requests the court to clarify that, if new copycat sites appear, these are covered by the existing injunction. As such, registrars would be required to take action without a separate order that specifically mentions the new domain. Putting an End to the Whac-A-Mole Without such an order, pirate sites will continue to move to new domains, which means that the court has to keep issuing new orders, creating a whack-a-mole situation. “Nintendo is concerned that absent such further clarifications of the scope of the Judgment, the Doe Defendants will again domain hop, changing a letter of a domain name, and the cycle will continue to repeat with the registrar contending that the new domain is not specifically covered by the injunction and with Nintendo having to return to this Court,” Nintendo adds. By clarifying that domains of copycat sites and new variants or successors should be transferred to Nintendo, registrars such as GoDaddy will have to take action more swiftly. This doesn’t mean that registrars have to “police the Internet” and proactively scan for new copycats, the company notes, as Nintendo will track down the new domains and report these accordingly. Nintendo hopes that with sufficient clarification from the court it can prevent the piracy hack stores from “thumbing their nose at the court” while frustrating Nintendo’s enforcement efforts. Dynamic Order Isn’t Perfect Either The requested order is similar to the dynamic pirate site-blocking orders we have seen in other countries. While those deal with ISP blocking, they also allow copyright holders to add new domains names that pop up. Given the order that’s already in place, it is likely that the court will grant the requested clarification. However, this doesn’t mean that Nintendo’s troubles are over. There are plenty of registrars and registries that don’t fall under US jurisdiction, after all. So the store may move to one of these next. — A copy of Nintendo’s request for clarification and to enforce the permanent injunction is available here (pdf) Source: TorrentFreak
  18. The U.S. Government recently indicted three alleged members of Team-Xecuter, the masterminds behind various Nintendo hacks. A federal court has now ruled that Gary Bowser, the only defendant in custody on US soil, is a flight risk so will remain in prison for now. In a separate civil action, Nintendo also booked a success against Team-Xecuter, by taking over domain names of several piracy hack stores. Hacking group Team-Xecuter has long been a thorn in the side of major gaming companies. The group offers hardware and software solutions that allow people to install and play unofficial games – including pirated copies – on various consoles, including the popular Nintendo Switch. Team-Xecuter often defended its work by pointing out that their products are not necessarily pirate tools. They are supporters of the ‘right to repair’ movement and back people who want to play homebrew games on their devices for personal use. The affected game companies disagree, with Nintendo front and center. The Japanese gaming company has been chasing down Team-Xecuter for years and a few months ago the company took several online stores to court for selling Team-Xecuter products. In October, these enforcement efforts reached a new level when the US Government launched a criminal prosecution of three of the group’s members. Bowser aka ‘GaryOPA’ One of the defendants is Canadian Gary Bowser. He was arrested in the Dominican Republic in September and was deported to the US soon after. Bowser was allegedly responsible for the development of circumvention devices and maintained regular contact with resellers. Bowser is perhaps best known through his nickname GaryOPA, the supposed operator and a frequent writer on the website “MaxConsole,” which regularly reviewed Team-Xecuter hardware and other hacking tools. Flight Risk In a ‘Zoom’ hearing held last week, a federal court in Seattle reviewed a request for pretrial detention, submitted by the US prosecution. It is not uncommon for criminal defendants to be released on bail pending their trial, but the US argues against this in Bowser’s case, as he’s considered a ‘flight risk.’ The court agrees. “Defendant poses a risk of nonappearance due to his lack of ties to this district, ties to Canada and the Dominican Republic, ownership of a Canadian passport, history of international travel, unstable living situation, and an uncorroborated personal history,” US Magistrate Judge Michelle Peterson writes. “Based on these findings, and for the reasons stated on the record, there does not appear to be any condition or combination of conditions that will reasonably assure the Defendant’s appearance at future court hearings,” she adds. Bowser was not interviewed by the court, which currently has no information on his family ties, personal history, or employment. That leaves the door open to reopening the detention hearing at a future date, which may change things. The Other Defendants There is no update on the other defendants at this point. Based on the information in the court dockets, Yuanning Chen from China is still at large. According to the indictment, Chen managed a manufacturing and distribution company where Team-Xecuter’s hardware was made. The third defendant, French national Max Louarn, was arrested in Canada where a U.S. extradition request was launched. The US Government sees Louarn, who’s hacking track record goes back to the early nineties, as the leader of Team-Xecuter. Louarn allegedly made Team-Xecuter’s important business decisions, arranged investors and financing, and oversaw product development and the wholesale distribution chains. Nintendo Takes Over Domains The US criminal prosecution is not the only legal pressure on Team-Xecuter. Nintendo has also seen very active on the legal front. One of the stores it sued earlier this year, Axiogame.com, was allegedly operated by Team-Xecuter. That has been shut down through Nintendo’s lawsuit. The Axiogame.com domain is now owned by Nintendo and over recent days the gaming company took over several other domains of former piracy hack stores, assisted by an updated court order. Flashcarda.com switched to the new Materpl.com domain and both are owned by Nintendo now. The same is true for Txswitch.com that switched to Stxwitch.com, Usachipss.com that moved to Nerged.com, and several other domains. Team-Xecuter Continues Despite the mounting legal pressure, Team-Xecuter is far from defeated. In fact, the site’s main website remains online. The forum remains active as well, with people privately offering help to install or buy mods. Team-Xecuter’s dedicated page for the SX product line is also still intact. This links to a list of authorized resellers. While many of these stores are offline now, a few are still actively selling. — A copy of the detention order issued by US Magistrate Judge Michelle Peterson is available here (pdf). Nintendo’s filing, pointing out the newly targeted shop domains can be found here (pdf) Source: TorrentFreak
  19. It looks like the Nintendo Account breach was much worse than we were all told Up to 300,000 Nintendo Accounts were accessed (Image credit: Nintendo) Nintendo has revealed that an additional 140,000 user accounts were accessed by unauthorized means back in April. Previously, the company had said that only 160,000 accounts were affected and was slow to acknowledge the problem at the time. The news will come as a worry to those who are concerned about the security of their Nintendo Account and Nintendo Switch, although Nintendo stressed that less than one percent of all Nintendo Network ID (NNID) users were affected by the breach. The security breach saw unauthorized users hijack vulnerable accounts using illegally obtained NNID information (which was required to make purchases on the Wii U and Nintendo 3DS). To make matters worse, some hackers took advantage of users' saved PayPal details to purchase various in-game currencies, such as Fortnite’s VBucks. Nintendo has since reset all NNID and Nintendo Account passwords that were hacked, and disabled Nintendo Account sign-in via NNID. It’s still not possible to log-in via your NNID at the time of writing. Step it up If you haven’t already done so, Nintendo recommends that all users should enable 2-Step Verification as an additional layer of security. You can follow the steps from the company’s support page, which will guide you through the entire process, or follow our simple guide. If you’re worried about whether your account has been breached, you can check if you’ve had any unwanted access on your account by viewing the ‘Sign-in History’ on the ‘Sign-in and Security Settings’ page. It looks like the Nintendo Account breach was much worse than we were all told
  20. Nintendo has requested a $15 million summary judgment against the owner and operator of RomUniverse. The gaming company accuses the man, a Los Angeles resident, of profiting from mass-scale copyright infringement and destroying important evidence. The RomUniverse site and the associated Discord channel have gone offline. In September 2019, gaming giant Nintendo filed a lawsuit against the game download portal RomUniverse. The website facilitated massive online copyright infringement of many popular Nintendo titles, according to the complaint filed at a California district court Nintendo said that RomUniverse made things worse by profiting from these copyright infringements by selling paid premium accounts that allowed users to download as many games as they want. RomUniverse’s Defense The site’s operator, Los Angeles resident Matthew Storman, clearly disagreed with these allegations. Without an attorney, he decided to defend himself in court. In his view, the site wasn’t breaking any laws and he asked the court to dismiss the case. Nintendo picked this defense apart and found the court on its side. This meant that Storman had to face the charges, as well as millions of dollars in potential damages. Since then the case has progressed with a few bumps in the road. Last summer, Nintendo requested further evidence as part of the discovery process, including tax records, communications, and download statistics. Storman replied that he couldn’t provide this due to a medical issue and asked for time to recover. Lost Evidence After some back and forths in court, both parties eventually met at the end of September. Storman produced some tax documents but said that he was still working on the download numbers and Discord communications. A week later, however, he informed Nintendo that he no longer had access to this information. Around the same time, the website and the Discord channel went offline, and both remain unavailable today. RomUniverse, when it was still around Nintendo believes that Storman willingly destroyed evidence and has little faith in his cooperation going forward. The company, therefore, asks the California federal court to grant summary judgment, holding the operator liable for direct and secondary copyright infringement. Summary Judgment “This is a straightforward video game piracy case, and the material facts are undisputed,” Nintendo informs the court. “For over a decade, defendant Matthew Storman owned and operated the website RomUniverse.com. He populated the website with pirated copies of thousands of different Nintendo games and distributed hundreds of thousands of copies of those pirated games.” Nintendo also highlights the evidence that disappeared a few days after the court ordered the operator to hand it over. “After refusing and then being ordered to produce key evidence, Mr. Storman instead destroyed it. That evidence included communications with his website administrators and data showing how many times each of the pirated video games had been downloaded.” According to the gaming giant, it is crystal clear that for many years Storman both uploaded and distributed Nintendo’s games, resulting in many copyright and trademark infringements. Instead of taking the case to trial, it wants the court to issue a summary judgment. $15+ Million In order to compensate for the massive damages Nintendo claims, the company requests $4.41 million in copyright damages and $11.2 million for trademark infringement, bringing the total to $15.61 million. In addition to the damages, Nintendo also seeks an injunction to prevent further copyright infringement. Among other things, that would require Storman to destroy all pirated game copies and hand over his domain names. Storman has yet to respond to Nintendo’s request and will have the chance to oppose it before the court makes a decision. That said, a legal battle between one man and a giant multi-billion dollar company generally doesn’t end well for the former. — Nintendo’s memorandum in support of the motion for summary judgment is available here (pdf) Source: TorrentFreak
  21. An IT researcher who hacked the recently released Nintendo Game & Watch allowing it to play additional games is feeling the corporate presence of the Japanese gaming giant on YouTube. After publishing a hacking video on the platform, someone working for Nintendo issued a curious and relatively rare manual Content ID copyright claim to have it taken down. Using any amount of copyrighted content in a YouTube video can result in a claim by a copyright holder, even when fair use exceptions should be applicable. This type of action is often taken through YouTube’s Content ID system after being detected by an algorithm. However, there is another option available to rightsholders that requires action from real-life people which, perhaps counter-intuitively, can mean claims are sometimes more controversial. Nintendo Game & Watch Hacker ‘stacksmashing’ As previously reported by Gizmodo, last November and a day before its official release, Nintendo’s Game & Watch console was hacked by IT researcher ‘stacksmashing‘ in order to play new games. Of course, this type of activity is always frowned upon by Nintendo. The Game & Watch released with Super Mario Bros. and the gaming giant would’ve preferred it to stay that way. But with Doom, Pokémon, The Legend of Zelda, Super Mario Bros. 3 and even Contra playable on the new machine, there’s now more variety, whether Nintendo likes it or not. Surprise: Nintendo Doesn’t Like It Nintendo can put pressure on hackers in all kinds of ways but an action taken against at least one of stacksmashing’s videos on YouTube reveals the company isn’t averse to playing some games of its own. As revealed by the hacker on Twitter, Nintendo has filed an interesting copyright complaint against one of his videos. As the above shows, Nintendo says that the video infringes its copyrights relating to Game & Watch: Super Mario Bros. However, the important information relates to what supposedly infringing content stacksmashing used in his video and in what context. According to the hacker, not much at all and not for very long either. The Claim From Nintendo “It’s a claim with time stamps – the beginning of the time stamp is a terminal window.. and then just the device being on and Mario running for a couple of seconds,” he explains. From the explanation and assuming that the terminal window didn’t infringe any of Nintendo’s rights, that leaves the few seconds of gameplay footage as a potential Nintendo irritant. While that could conceivably get caught up in an automatic Content ID claim, that wasn’t the case here. Fairly unusually, an actual human being made a manual claim against stacksmashing’s video, within Content ID. “This was actually a manual match, so someone at the big N put in the time to do this,” he notes on Twitter. So how exactly do manual Content ID claims work? The Parameters As Per YouTube “A manual claim is sent to you when a copyright owner identifies that their content has been used without their permission. Copyright owners use the manual claiming tool to claim your video, which sends you a manual claim,” YouTube explains. In a nutshell, Content ID’s algorithms didn’t flag the video as infringing but someone acting on Nintendo’s behalf watched the video and determined that it did. They then took time out to tell YouTube that Nintendo’s copyrights had been infringed so it should be taken down. “The manual claiming tool is used by copyright owners who demonstrate advanced knowledge of our Content ID system. The tool gives copyright owners a way to manually claim videos not matched by the Content ID system. Manual claims must include accurate timestamps to show exactly where the claimed content is in your video,” YouTube adds. While stacksmashing hasn’t revealed the exact timestamps, the progress bar on the screenshot shows that Nintendo claimed a very small part of the video. Furthermore, the requirement for an accurate set of stamps doesn’t appear to have been strictly adhered to, if indeed the only problem was a few seconds of Super Mario Bros. gameplay footage. Taking that to its logical conclusion, another question raises its head: Why are there so many other videos on YouTube showing Game & Watch gameplay that haven’t received a copyright complaint? Stacksmashing is Reportedly Editing, Filing Disputes With Gizmodo reporting that stacksmashing has had two of his videos targeted in this way, the hacker is reportedly editing them in an effort to get them back on YouTube without further issues. On top, he’s also filing disputes against Nintendo’s claims of copyright infringement. While having any kind of copyright claim against a video is an irritant, in this case a manual Content ID claim does not immediately mean copyright ‘strikes’ for stacksmashing. However, there is an option for a copyright holder to send an actual takedown notice (rather than a Content ID claim) and if this is deemed accurate, a damaging ‘strike’ can be applied to an account. Since the hacker is reportedly prepared to trim out the contentious few seconds of video, his YouTube account will remain in good standing. On the other hand, if Nintendo is found to be “improperly claiming content that they don’t own the rights to” this could result in “penalties including legal liability and partnership termination,” as per YouTube. This, of course, is highly unlikely. Source: TorrentFreak
  22. After 25k complaints, EU calls for investigation into Nintendo Switch Joy-Con drift Out of control. The European Consumer Organisation (BEUC), the EU's joint consumer programme, has called for a Europe-wide investigation into Nintendo Switch Joy-Con drift after receiving more than 25,000 complaints from numerous countries. The group has now submitted its own complaints to the European Commission and national consumer protection authorities around Europe, based on its rules surrounding "premature obsolescence and misleading omissions of key consumer information on the basis of the EU's Unfair Commercial Practices Directive". In the vast majority of cases - 88 per cent - Nintendo Switch owners reported issues with their Joy-Con controllers within the first two years of use, the BEUC said. Complaints have been received from Switch owners in France, Belgium, the Netherlands, Portugal, Italy, Norway, Slovakia, Slovenia and Greece. The BEUC has called for Nintendo to repair faulty Joy-Con for free - something it has done in the past - and to inform consumers of the "limited lifespan" of Joy-Con at present. "Consumers assume the products they buy to last an appropriate amount of time according to justified expectations, not to have to pay for expensive replacements due to a technical defect," BEUC boss Monique Goyens said. "Nintendo must now come up with proper solutions for the thousands of consumers affected by this problem." We've contacted Nintendo for comment. Nintendo Switch Joy-Con drift - where the controller stops communicating properly with the console's base unit, or begins controlling itself - has been a widely-reported issue since the console first launched. In September 2019, a class-action lawsuit was filed by Switch owners in the US following growing reports of people facing Joy-Con issues. At the time, Nintendo said it would fix any problems of this nature for free. Asked about the still-ongoing issue in June 2020, Nintendo president Shuntaro Furukawa apologised for "any trouble caused" and said Nintendo was "continuing to aim to improve our products, but as the Joy-Con is the subject of a class-action lawsuit in the United States and this is still a pending issue, we would like to refrain from responding about any specific actions". Source: After 25k complaints, EU calls for investigation into Nintendo Switch Joy-Con drift
  23. Leaked Nintendo documents have revealed a frightening surveillance operation carried out against a hacker who was researching exploits for the 3DS handheld. In addition to monitoring his private life, including aspects of his education, when he left the house and where he went, the company followed its target from his place of work in order to pressure him into stopping his activities. Projects to protect the intellectual property rights of corporations are underway all around the world on a continual basis but it is rare for operational details to leak out to the public. Unfortunately for Nintendo, leaked documents are now revealing how frightening things can get for console hackers in their crosshairs, even when those targets have already declared that their work isn’t designed for piracy purposes. Leaked Documents Reveal Police-Style Surveillance Operation During the past 24 hours, various Twitter accounts (1,2) have been posting snippets from documents that were recently leaked from Nintendo. While there are numerous items of interest, the most shocking revelations involve Neimod, a hacker who several years ago developed exploits for the 3DS handheld console. Of course, it’s not surprising for a company like Nintendo to have a keen interest in work carried out by someone like Neimod. Nintendo’s documentation described him as a “highly skilled hardware engineer” with “a very high reputation within the hacker scene, for Nintendo products.” However, the scale of the operation, which is revealed in detail in the leaked documents, shows just how far the gaming giant was prepared to go to stop his work. For example, the leak reveals personal profiling that dug deeply into Neimod’s education status, listed details of his working life, while offering evidence of physical snooping on his daily lifestyle. What time he could be found at home, who came to see him there, and even when he visited places like banks and restaurants are all included. While this kind of surveillance is creepy in its own right, additional documents reveal a detailed plan to use the gathered intelligence to physically confront Neimod in order to pressurize him into complying with the company’s demands. Detailed Operational Planning to Intercept Target According to Nintendo’s planning, the operation would begin around April 15, 2013, with its team meeting at a local hotel to discuss and finalize their plans. Following a review of Neimod’s movements of the previous week, the team would then decide where and when contact would be made – after work or at home, for example. With an undercover investigator monitoring Neimod to discover what time he left work, Neimod was to be approached by a ‘contact team’, who were instructed to approach their target “in a friendly, non-threatening, professional, and courteous manner. “Provide a business card,” the instructions read. After Neimod had been engaged in conversation, the team was instructed to flatter the hacker by “acknowledging his engineering/programming aptitude.” They were also told to reference his stated aim of not “facilitating piracy” with his hacks but point out Nintendo’s concerns that a release of his hack could do just that. Whether Neimod complied or resisted, Nintendo prepared for both eventualities. The following slide, posted to Twitter by Eclipse-TT, shows a flow chart that begins with instructions for the “Knock and Talk Team”, details a staging area, rules of engagement, and plans for what should happen when things go to plan – or otherwise. The Nintendo “Final Enforcement Proposal” document describes a “carrot and stick” approach, with the stick being a laundry list of potential offenses committed by Neimod under Belgian law and the carrot representing a number of sweeteners that might be of interest to the hacker. If cooperation was achieved, Nintendo suggested it could refrain from filing a criminal complaint. It may also enter into a “bounty” contract with Neimod with payments made for finding and documenting exploits. Within certain parameters, his discoveries could still be announced to the public, allowing him to retain “bragging rights.” This could help Nintendo’s image, the company wrote. “If successful, Nintendo’s public image may be further bolstered as a modern, tech-savvy company, while hinting that hackers should be cooperative rather than aggressive with Nintendo in the future (in contrast to Sony’s missteps with George ‘geohot’ Hotz),” the document adds, noting that a trip to Japan to meet Nintendo’s hardware engineers might also prove attractive. Of course, significantly boosting public image long term is only possible when details of invasive surveillance operations stay out of the public eye. With the leak of the full “Hacker Enforcement Proposal” now in full swing (here, pdf), that will be just a little bit harder for Nintendo. On the other hand, it might also give hackers pause for thought. Or, indeed, drive them further underground. Source: TorrentFreak
  24. Hundreds of non-commercial Nintendo fangames have been removed from the popular game publishing community Game Jolt after the platform complied with several DMCA takedown requests. Many of the affected games have dedicated fanbases including many die-hard Nintendo fans, some of whom now seem eager to revolt. As one of the most iconic gaming manufacturers in the world, Nintendo has been fighting piracy for decades. The company has an in-house anti-piracy division that signals the latest threats to steer enforcement actions in the right direction. In recent years it’s gone after sites and stores that offer pirated games and has assisted in the criminal prosecution against alleged members of the hacking group Team-Xecutuer. However, the smaller fish are not being ignored either. Nintendo Targets Non-profit Fangames A few days ago, Nintendo’s legal department sent DMCA notices to the game publishing community Game Jolt. The site, where hobbyists and indie developers share their creations for free, was notified that hundreds of fangames infringed Nintendo’s trademarks. The takedown spree, which was published publicly by Game Jolt co-founder and CEO Yaprak DeCarmine, notes that the games in question use copies of Nintendo’s intellectual property without permission. Game Jolt allegedly profits from this. “These web pages display images of Nintendo’s video game characters in connection with unauthorized online games that copy the characters, music, and other features of Nintendo’s video games. “The web site at gamejolt.com generates revenue from advertising banners displayed on the site and advertisements played while users wait for the games to load,” the takedown notices add. 379 Games This certainly isn’t the first time that Nintendo has targeted fangames, but the scope of this recent effort is massive. In total, the two notices posted by Game Jolt target 379 game URLs, which were all taken down. Game over. The developers of the games and many of their fans were taken by surprise. Players were suddenly greeted with a 404 error message like this one and developers received an alert notifying them that their game had been targeted. The mass removal is a hot topic in the Game Jolt community. Many people don’t understand why Nintendo would target some of its most dedicated fans. That includes the indie developers who spent weeks or months on their projects. Game developer ‘Eeveeloverdoesgaming,’ who publishes several Nintendo-inspired games, wasn’t targeted but summarizes the general feeling towards Nintendo quite well. No Sympathy for Nintendo “They’ll get no sympathy from me, this isn’t the first time they’ve pulled a stunt like this. They’ve made it clear they hate their fans and repeat it time and time again never learning from it.” The developer will continue to work on his “Five Nights At Team HQ series” but fears that it will be targeted eventually. That doesn’t stop the developer though, and he encourages others to simply flood the Internet with copies. “Nintendo if you think taking down everyone’s games will help your image and get people to buy more of your games then you’re sorely mistaken! I’ll keep making and reuploading fan games even if you try to take them down, so DEAL WITH IT! “All people who have copies of the fangames that were taken down take them and reupload them all over the internet so they stay up no matter what!” Reuploaded Although some developers prefer to lie low and stay out of Nintendo’s hairs for the foreseeable future, some have indeed brought their games back to life. For example, ‘Jeb Yoshi’, the developer of “Five Nights at Yoshi’s,” re-uploaded it with ads disabled. “After looking into it, I believe the fact there was profit being earned from advertisements on the game page was the reason for the takedown of this game among countless others,” the dev writes. ‘Jeb Yoshi’ refers to Nintendo’s mention of the advertising element in the DMCA takedown request, which is mentioned by other people as well. They are not sure whether that’s indeed the case though. “Let’s hope this goes well,” the dev wrote on Discord. In pursuit of more clarity TorrentFreak reached out to Nintendo for a comment but, at the time of writing, we have yet to receive a response. We also reached out to Game Jolt to hear their thoughts on Nintendo’s DMCA requests but the company didn’t immediately reply. We will update this article if more information becomes available. Source: TorrentFreak
  25. Microsoft tried to buy Nintendo, but got laughed out of the room The company wanted Nintendo's software for the original Xbox. STR New / reuters Somehow, it’s already been two decades since Microsoft first announced the Xbox, its foray into console gaming. Specifically, the Xbox was unveiled at CES in 2001 — to commemorate that launch, Bloomberg has published an in-depth oral history of how the console came to be. It’s a fascinating read, but one particular passage stands out: details on Microsoft’s efforts to secure games for the brand-new console. While the company implored third-party developers to work on the Xbox, Microsoft also considered using its considerable financial might to buy developers. And Microsoft set its sights high, approaching Nintendo about an acquisition. Microsoft was laughed out of the room, says Kevin Bachus, a director for third-party relations on the Xbox project. “They just laughed their asses off,” Bachus said to Bloomberg. “Like, imagine an hour of somebody just laughing at you. That was kind of how that meeting went.” Microsoft’s specific pitch did make some amount of sense. At the time, Nintendo was lagging behind Sony badly from a hardware perspective. So Microsoft figured it could take on hardware production and leave Nintendo to focus on the software. “We actually had Nintendo in our building in January 2000 to work through the details of a joint venture where we gave them all the technical specs of the Xbox,” said head of business development Bob Mcbreen. “The pitch was their hardware stunk, and compared to Sony PlayStation, it did. So the idea was, ‘Listen, you’re much better at the game portions of it with Mario and all that stuff. Why don’t you let us take care of the hardware?’ But it didn’t work out.” While this is certainly the most notable of Microsoft’s failed acquisitions, there were a few other notable developers who passed on the company’s overtures. EA was the first company that Microsoft reached out to; the software giant passed with a more simple “no, thanks.” Microsoft also was meeting with Square (now known as Square Enix) and Mortal Kombat developer Midway. One acquisition that did go through gave Microsoft what’s been the flagship franchise for the Xbox since day one. At the time, Bungie was a little-known developer, but Halo: Combat Evolved arrived alongside the first Xbox in November of 2001 and was met with immediate acclaim. It’s not a stretch to say the game gave the Xbox immediate legitimacy and helped it carve out a significant chunk of the gaming market despite the dominance of Sony and Nintendo. For more on how the first Xbox came to be, Dina Bass’s oral history at Bloomberg is a must-read. Source: Microsoft tried to buy Nintendo, but got laughed out of the room
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