The benefit of the suits, from Nintendo’s perspective, is their deterrent effect. To the contrary, the suits send a clear message to would-be pirates: We will find you. This is not to say that Nintendo’s suits are futile or without purpose.
Nintendo Isn’t Completely Dumb About Piracy and ROM Lawsuits Thus, infringement verdicts are unlikely to ever pay off against ROM hosters. Even if courts were lenient and awarded damages of just 10% the statutory maximum, that would still amount to awards in excess of $10 million - far more than most individuals can expect to see in their lifetime. Since ROM sites host hundreds, or even thousands, of copyrighted works, damages awards could conceivably reach hundreds of millions of dollars. For willful infringement, the Copyright Act allows for damages of up to $150,000 per copyrighted work. The problem is that statutory damages for copyright infringement are steep. By and large, piracy ROM sites are not operated by sophisticated or well-financed corporations or by overly wealthy individuals - they’re run by individuals who like video games. “Cut off one head and two more shall take its place.” Sure, RomUniverse may be down, but what about, ,, and so on? Would-be pirates looking to avoid the eShop still have plenty of options to choose from, meaning that Nintendo’s success in this case doesn’t amount to much.Īnd to be clear, this problem is not unique to Storman. For one thing, ROM sites, like Hydra, cannot be defeated through a single action. After all, Nintendo prevailed on all of its claims, won a multi-million dollar judgment, and has a court order on the books precluding any further infringing acts. Hail Hydra Digital PiracyĪt first glance, one might think that Nintendo’s suit was a slam-dunk success. A few months prior in May 2021, the court had ordered Storman to pay over $2 million in damages for infringing Nintendo’s copyrights and trademarks. Just a few weeks ago, Nintendo secured a permanent injunction against Storman that required him to destroy all unauthorized Nintendo ROMs in his possession, and it precludes him from copying, hosting, or distributing Nintendo ROMs. To understand why, we can look at Nintendo’s most recent suit, which was filed against Matthew Storman, the operator of the now-defunct site RomUniverse. Nevertheless, these suits serve as interesting case studies in legal strategy. ROM files are one of the primary mechanisms of video game piracy, as they can easily be found, downloaded, and played for free. In more recent years, Nintendo’s battle over piracy has focused largely on “ROMs.” As explained by Wikipedia, “A ROM image … is a computer file which contains a copy of the data from a read-only memory chip, often from a video game cartridge.” In other words, a ROM file is a complete (and, ideally, perfect) copy of a video game, in digital representation. A few years earlier, Nintendo had prevailed in a lawsuit against Tengen, a division of Atari, which circumvented Nintendo hardware locks and sold unlicensed games, including a Tetris copycat. Back in 1994, Nintendo intercepted a shipment of bootleg Game Boy games, before ceremoniously destroying them with a steamroller (with the help of a creepy oversized Mario mascot-costume figure).
On its website, Nintendo boasts, “Since 2008, Nintendo has supported over 600 actions in 16 countries, confiscating over a half million DS game copiers,” and “In 2009 alone, working with law enforcement agencies, Nintendo has pursued actions against over 80 factories in China producing (unlawful game-copying) devices.” In fact, Nintendo’s anti-piracy crusade starts well before the Nintendo DS. Nintendo is known for many things - timeless characters, innovative consoles, and, of course, its aggressive, seemingly never-ending fight against piracy.
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