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Nintendo wanted to make an example of Switch Hacker

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Mario waves his fist in the air in a store, with an uncomfortably hypercapitalist energy.

Image: Zhang Peng/LightRocket via Getty Images

A Justice Department lawyer told a judge that the man ordered to pay Nintendo $4.5 million in a piracy case would resign himself to a “socially isolated and financially deprived” life.

Gary Bowser has been treated by some as a fun title, as a man named Bowser worked with Nintendo Switch’s most prominent hacking squad and eventually became the defendant in a criminal case. However, the reality of his case and his 40 month sentence is anything but. A recently released court transcript, first reported by Axios, shows that Nintendo and the DOJ sought to severely punish Bowser to make him an unintended “example” and symbol of our punitive, prison-like approach to piracy.

“It is difficult and therefore rare that we have a foreign actor, a foreign cybercriminal, whom we have identified, extradited and brought to justice in a United States court, and as such, this case gives the court an opportunity to provide a message strong to people following in Mr. Bowser’s footsteps,” Annand Patel, a U.S. attorney, told the judge during the sentencing hearing.

The transcript gives a rare insight into what Nintendo’s lawyers really think about the hack and its rhetoric about it.

Ajay Singh, Nintendo of America representative, lamented the idea of ​​parents being “forced to explain to their children why people cheat and why sometimes games aren’t fair just because one person wants an unfair advantage” . Singh goes on to say that this case, and all future cases attacking piracy, will help protect the broader gaming “community”, in which smaller developers operate with “thin margins”. Singh’s argument, while compelling on its face in its defense of indie developers, overlooks that many of today’s developers grew up hacking and imitating video games. Piracy, for as many legitimate problems as it can cause developers, is an essential part of the video game ecosystem and a vital entry point for low-income children.

It also provides significant insight into not only the hackers’ activities, but also the processes by which Nintendo attempted to track them down:

“[The] The conduct of the defendant and that of his co-conspirators has deeply affected Nintendo of America and what we do and the community we serve.

We also believe this is a unique opportunity for the court – sorry, for the illegal hacker community and for the gaming community as a whole to understand that intellectual property crimes cause real harm and constitute serious offenses…the hacker community and much of the wider gaming community is following the outcome of this case very closely, and Team Xecuter leaders have actively followed Nintendo’s litigation in the past, ranging going as far as creating Pacer accounts under false names to pull our files… We know that this criminal case has deterred some members, but it has not deterred them all, and the next steps will be impacted by the sentence that the court imposes here.

Bowser, a Canadian national, was arrested in New Jersey while awaiting a connecting flight from the Dominican Republic, where he lived, to Canada, for his involvement with Team Xecuter, a notable hacking group specializing in nintendo switch hack. Bowser, who ran the team’s marketing and customer service arm, pleaded guilty on all counts, to a case in which the other two defendants, team leader Max Louarn and co-conspirator Yuanning Chen, were convicted. charged but were not present in the United States.

After 16 months in custody, a judge sentenced Bowser to 40 months in prison, followed by a 3-year supervision period. He must also pay $4.5 million in restitution to Nintendo of America, to be paid in monthly installments not exceeding 10% of his monthly income. This is an intentionally harsh penalty designed to deter future piracy.

Recently released court transcripts paint an unflattering picture of Nintendo of America as insecure and unnecessarily punitive. Patel goes so far as to acknowledge the fact that they are not only giving him a three-year prison sentence, but that after his release, “he will be socially isolated and financially destitute”. A situation that the DOJ admits to be “very similar to [his situation] when he was first introduced to Team Xecuter.

The DOJ’s argument is that with a harsher penalty, would-be hackers will be deterred from attempting to profit from piracy. Nintendo, both in its official statement of harm and in its statement to the court during Bowser’s sentencing, lists the supposed damage the hack is inflicting not just on its business, but on the wider “community” of gamers. He claims that Team Xecuter and Bowser inflicted over $65 million in damages on the company. However, it should be noted that the reality of whether or not pirated video games translate directly into lost sales is highly contested. Pirated content is viewed illegally, it’s true, but that doesn’t mean the content would have been purchased legally if piracy hadn’t been an option, as numerous studies have shown. In fact, video game piracy in particular has been proven to help companies break into developing markets.

However, despite claims by Nintedo and the DOJ that an example should be taken from Gary Bowser, Bowser’s attorney makes a compelling argument that a harsher sentence will not lead to meaningful deterrence:

“You know, the concept of general deterrence, and my reading of it, is that it’s not really the length of an individual’s sentence that really promotes general deterrence; it is the certainty of apprehension, arrest, condemnation. Sentence length really doesn’t have that much of an impact on general deterrence. And I agree with what Mr. Singh and Mr. Patel have said that this case will get attention and people in the online community will talk about it, but the way to dissuade people is to to arrest more people, to charge more people, to take more civil actions against people. I know the government, and I know Nintendo in particular, are really focused on this and working hard on this. But the court should not be used as a vehicle to send a message, so to speak, to others through one person by imposing an unduly harsh sentence simply for the purpose of sending a message to others. others. First, I don’t think that’s empirically supported, and again, I don’t think that’s a fair way to deal with Mr. Bowser in particular, who, again, is, you know, the third defendant in this three-accused case. and the least culpable of the three people involved and the one who was most dispensable and least compensated.

Bowser received a 40-month sentence, reduced from the 60-month sentence requested by Nintendo and the DOJ. This sentencing, the judge said, attempts to strike a balance between treating Bowser fairly and the DOJ’s desire to make an example of him. I doubt he succeeded either.

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