The big Nintendo piracy case is a very sad story

The big Nintendo piracy case is a very sad story

Mario business

picture: nintendo

Back in February, Gary Bowser – who was described in most media reports as a “pirate” –Sentenced to 40 months in prison for his role in selling cheats and mods to Nintendo consoles. Being a court case, most reports only address the names on the page and the cold facts, but a transcript of Bowser’s sentencing hearing just gave us all a reminder that this was a very humane case where the motives, actions, and consequences were more complex than reported in mostly.

Text — First reported by AxiosRecords everything that was said in Bowser’s sentencing, including statements by his attorney, representatives from the United States Attorney’s Office, the Department of Justice, the General Counsel of Nintendo, and the judge himself.

I won’t reprint everything here, but there have been a number of passages that I believe paint this state in a more human light than we would otherwise have been able to see through the lens of “Crime + Judgment” reports, and so I thought they were worth sharing.

This Anand Patel of the Department of Justice, notes how much Bowser made during his time with hacking group Team Xecuter after the bankruptcy of his previous business:

Although he might have been an unlucky businessman, that doesn’t condone his actions here. The stipulated amount of loss was the expected result of the behavior of the company and Mr. Bowser. But even if you look at Mr. Bowser’s earnings, $320,000 over seven years, it provided a very comfortable lifestyle. This equates to about $3,800 a month, all of which was disposable income that would not have been available to him had it not been for his involvement in the plot. And you have to keep in mind that this was in the Dominican Republic, where the lifestyle is a bit different than some of the other defendants in the case. This amount allowed Mr. Bowser to live a comfortable life. He bought a car, lived in a beautiful apartment, having lost everything.

These are comments from Bowser’s lawyer explaining the kind of conditions he has been in since his first arrest, Which Nintendo was very eager to send out a congratulatory press release last February:

Your Honor, when I met Mr. Bowser, when I met Mr. Sanders with Mr. Bowser this morning in prison – it’s really interesting how you learn new things all the time, even after spending a year with someone – and we were just discussing the journey he made when he arrived in New Jersey, and He was detained, then moved from one federal prison to another and ended up in Nevada. And he told me that when he came, he weighed 410 pounds—I didn’t know he weighed that much—and by the time he got to FDC, he was down to 320. He had lost 90 pounds. So I asked him, “Well, how did that happen?” Well, he said he’s not getting proper treatment for elephantiasis in his leg. The only thing you really have to worry about is worrying about skin breakage, and when that happens, you’re very prone to getting a nasty infection. He had a bad infection, they took him to a hospital in Pahrump, Nevada, and he got over it. But, you know, I asked him how he was this morning. He says, “Well, you know, I had a little breakout on my skin this morning.” I said, “Well, how do you deal with that?” He said, “Well, I had some coffee and made a little paste, and I heard this is really good for taking care of your skin.” And I think it just brought me to the conclusion that the physical challenges he faces – are not life-threatening; You know, BOP will try his best to take care of him – it’s quite a challenge to get adequate medical care, and he has to basically take care of himself.

This is a typical cell photo in a SeaTac detention center. Two people live in this space. I showed this to Mr. Bowser this morning–because this is not his cell–and he said, “Well, you know, I’m in a somewhat private cell. Mine is about 18 inches wide because it’s a special cell to accommodate the wheelchair I’ve been using most of the time, and I get The bottom bed is because of my problem.” But there are two people here. For six of the past sixteen months, he has been confined to this cell of the size, plus 18 inches, for at least 23 hours a day. During the height of the coronavirus outbreak, they let people go out every three days to shower maybe half an hour and come back. So, you know, he’s coming out a little bit, but that’s where he’s been in for six months.

Bowser’s attorney also took the opportunity to remind everyone that while the defendant was now known as “the hacker” thanks to news reports covering the case, his exact role with Team Xecuter was actually a salesman and support man:

One of the things that has happened over time is that the facts get embellished when we talk about what the group did and what Mr. Bowser’s role was, and I think it’s important to keep those two things separate. Without Mr. Bowser, this project would have continued. There could have been another Mr. Bowser. Without Mr. Chen, without Mr. Lorne [the leaders of Team Xecuter], this is not true. Mr. Bowser was not a developer. The developers, the people who actually made and fixed these devices when Nintendo responded to them, got paid pretty impressive, a lot more than Mr. Bowser. He was not a seller. He wasn’t one of those independent contractors who was making a lot of money for it. However, comments about Mr. Bowser’s role as an important role are accurate, and we don’t question that.

Bowser himself has taken the stand as well, mostly to apologize to the developers and publishers for his actions, but also to provide some background on what he’s been up to 16 months in custody:

It was a very painful experience for me when I was caught, coming here, going through this. This is my first time in prison actually going through court proceedings and everything. And the amount of time I actually spent, 16 months in confinement, a lot of that time — I spent six months, basically, locked up because of COVID. I went through all three waves of COVID before a vaccine was available. I personally did not get the vaccine, cause, I am skeptical about my medical condition, how it will affect me, and I was not actually able to get proper medical treatment because I was not able to get face to face with the doctor to see if the vaccine is possible with my health condition. When I was first arrested, I weighed 410 pounds. I had to use a wheelchair. I’ve spent my life drinking, since I was fifteen, after my mother’s death, and that’s the longest I’ve been sober.

This is Nintendo’s general counsel, Ajay Singh, repeating the same fallacy you always see in piracy cases – the false pretense that every pirated game equals a lost sale, which is simply not true – before getting to the true gist of Nintendo’s pursuit: he claims that Team Xecuter, The group that Bowser was a part of, is such a pain in Nintendo’s ass that the company has had to release entirely new models of hardware, which seem more like a motivating factor in this suit than the games themselves:

With respect to Nintendo, the defendant and the government sought damages in excess of $65 million. On top of that, Nintendo has spent massive resources trying to stop Team Xecuter. We’ve been working on this for decades – well, at least for a decade, I’d say. Nintendo had to update its hardware to prevent Team Xecuter’s hardware from working. This included the release of a new version of our console. It has also spent significant resources on software updates, and of course on intellectual property enforcement around the world.

Finally, here’s the judge passing Bowser’s sentence, saying that he somehow exercised hard on the defendant (by ‘sending a letter’) while also leniency (by saying under ‘normal circumstances’ he would be sent to prison for ‘five Years):

… I always tell jurors, “Your role is not to send a letter. Your role is to decide guilt or innocence based on the facts.” But my turn sometimes entails sending a message. For a long time, as you know, the crime of white was not considered a real crime and flourished. We, in this community, still remember the Washington Mutual Bank disaster where no one went to prison, no one was imprisoned, and no one was criminally prosecuted, for what should have been serious criminal offenses. And when people start accusing them of things, it has an effect and provides a general deterrent because this is not a joke, these are serious criminal offenses, with real victims and significant financial impacts on communities. So I think there is a role we have to play here in terms of sending the message, and I want the message to be clear, under normal circumstances, I would send Mr. Bowser to prison for five years. I don’t want to send any kind of mixed message to France. If Mr. Lorne [a more prominent figure in the piracy scene] Coming in front of me for sentencing, he may have served double digit years in prison for his role and sharing, same with the other person. But we have a situation here where Mr. Boozer, though heinous of his crimes, is the least guilty of the three, has serious medical problems and challenges, and has been imprisoned under very difficult conditions for a long period of time. So with all these things in mind, I will agree with Mrs. Wally here that a penalty of 40 months is appropriate, and I will impose 40 months.

None of this changes the basics of the story or Bowser’s guilt. The man committed a crime, knowing that he committed it and was punished for it. But as I said, it does provide some context for events other than a “man commits a crime”, and perhaps help show that such cases are more complex than the press releases Nintendo sends out and federal authorities are able to get past them.

2022-06-07 00:40:00

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