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Nintendo The Courts Wii Games

Man Fined $1.5 Million For Leaked Mario Game 287

An anonymous reader writes "A Queensland man will have to pay Nintendo $1.5 million in damages after illegally copying and uploading one of its recent games to the internet ahead of its release, the gaming giant says. Nintendo said the loss was caused when James Burt made New Super Mario Bros Wii available for illegal download a week ahead of its official Australian release in November of last year. Nintendo applied for and was granted a search order by the Federal Court, forcing Burt to disclose the whereabouts of all his computers, disks and electronic storage devices in November. He was also ordered to allow access, including passwords, to his social networking sites, email accounts and websites."
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Man Fined $1.5 Million For Leaked Mario Game

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  • Re:Pro-piracy (Score:4, Interesting)

    by anss123 ( 985305 ) on Tuesday February 09, 2010 @08:00AM (#31070504)

    What's so wrong about them suing him?

    There's nothing wrong with them suing him.

    The Pro-piracy comments you've seen is (probably) more directed towards "freedom" as the technologies/laws that limits piracy also limits that much valued freedom.

    Ergo pro freedom = there will be piracy

  • Re:Pro-piracy (Score:5, Interesting)

    by marcansoft ( 727665 ) <{moc.tfosnacram} {ta} {rotceh}> on Tuesday February 09, 2010 @08:04AM (#31070526) Homepage

    And yet they still don't give a damn about piracy, technologically speaking, or at least they care about it a lot less than they care to annoy homebrewers and importers.

    Proof: the last three iterations of Wii System Updates closed exploits used to run homebrew, but an ancient exploit that is still being used for piracy has remained untouched for that long (and counting). More proof: it would be trivial for them to detect and block modchips at the system update level, but so far they haven't even tried. Even more proof: NIntendo seems to be happy deliberately bricking your Wii if you have imported it, but it certainly hasn't even crossed their mind to do that for people who pirate. Yes, System Update 4.2 deliberately bricked all Korean Wiis that had been switched to the USA or EUR region. And by this I mean an explicit if(korean_detected()) { show_error_code_on_boot(003); }.

  • Re:Proportionality. (Score:2, Interesting)

    by Grantbridge ( 1377621 ) on Tuesday February 09, 2010 @08:22AM (#31070626)
    That's why bankruptcy laws were introduced!
  • Re:Pro-piracy (Score:3, Interesting)

    by Thansal ( 999464 ) on Tuesday February 09, 2010 @08:42AM (#31070746)

    I was going to write a post about that as well, and wondering why it would matter for an AUS release, as they actually have laws (or had, I assume they still exist) making region locking illegal, and thus importing media from else where a trivial matter.

    However, I then looked up the release dates of the game. Australia got it on Nov 12th, NA got it on the 15th, EU got it on the 20th, and JP got it on Dec 3rd.

    So, however he got it, he released it prior to ANYONE getting it, and probably in a region free version as well (though, I think Nintendo doesn't actually region lock their games, but I wouldn't swear to it).

  • Re:Proportionality. (Score:4, Interesting)

    by GF678 ( 1453005 ) on Tuesday February 09, 2010 @08:45AM (#31070762)

    You have a point. BUT... the guy didn't just trip over and somehow end up leaking the game by accident. He made a conscious decision to do what he did, knowing full well it could land him in hot water. It was an easily avoidable situation which he chose to place himself into, and paid the price. A very high price, and probably an immoral price, but he made his choice.

  • Both the Xbox1 and the Wii can run Linux. On the Wii nowadays this means using BootMii + Mini, which is a completely new framework that has no relation to any Nintendo code (though strictly speaking it isn't cleanroom, as we didn't go through the cleanroom process which involves having separate teams write a spec and implement the software to it). This is a completely legal setup as far as we know.

    "Native" Xbox1 homebrew (running on the Microsoft kernel) uses the Microsoft SDK, which makes binaries illegal to distribute. Most "Native" Wii homebrew (using Nintendo's IOS) uses a "homebrew" library (libogc) that is derived from a decompiled version of the Nintendo Gamecube SDK (exceptions: exploit stuff which is based on segher's Twilight Hack codebase, TinyLoad [wiibrew.org] which also is, little else), so effectively most Wii homebrew binaries are also illegal. However, the author of this decompilation pretend the code was an original work of his for a long time, and by the time we found out just how ripped it was everyone and their mom was using this library, so the net result is that most know that the resulting Wii binaries are about as illegal as the Xbox1 ones, but everyone pretends they aren't and they are happily distributed through "official" channels.

    No, I don't approve of the latter.

  • by adosch ( 1397357 ) on Tuesday February 09, 2010 @09:00AM (#31070860)

    Nintendo is going to do what any other software mongrel in the free world is going to do when their production is illegally propagated to the masses. However, let's not overshadow the fact that the New Super Mario Bros Wii game did sell over 10 million copies as pointed out [slashdot.org] a little over 2 weeks ago.

    Just for fun, I'd like to see what Nintendo's exterior argument was from 'loosing sales' because, clearly, they capitalized on the sales aspect and in any retail store I've been in recently in my area, even a month or better past the holiday season, has the game completely sold out.

    Furthermore, pirating a game like New Super Mario Bros Wii, to me, seems quite contradictory. It's $50 in the store, but it's not like you don't get the gameplay you desire out of it. My wife and I have had this game since late Decemeber 2009 and we've played it daily ever since. With 8 regular levels and 8 unlockable coin levels to conquer, all the easter eggs to discover and the nostaliga of getting to play a killer 2-D game again on a modern-day gaming console, if you don't think that's worth your $50, I pitty you.

  • Re:Pro-piracy (Score:2, Interesting)

    by Anonymous Coward on Tuesday February 09, 2010 @09:04AM (#31070880)

    You know, that's a bit silly. First of all, nobody, or at least not I, have argued that he should go completely free, and secondly;Do you seriously think he'd be more or less of a deterrent if he had been hit with a $100 000 stick instead?

    The difference is that there would have been some hope to actually pay that amount and move on with his life, rather than being stuck in eternal poverty with nothing left to lose really. By this decision justice has not been done, and nobody got deterred that wouldn't have been from a significantly lower sum. All that happened is that another economical desperado who can scoff any law which carries monetary punishments has been created.

  • Re:Proportionality. (Score:5, Interesting)

    by Blue23 ( 197186 ) on Tuesday February 09, 2010 @09:04AM (#31070884) Homepage

    here should be some kind of proportion to the damages, seriously that amount ruins an ordinary person for the rest of their life. Did the court deliberately set out to give him a life sentence of sorts? And if the amounts are to be set at company rates for individuals he should have his own choice just to do some time for it. Seriously, go on a walk for 3 years and move on in your life instead of being sentenced to financial death for the rest of your natural time.

    Your suggestion seems to be setting the amount as punishment, not as restitution for lost sales. Now, I think the $1.5 million in lost sales is highly debatable, but I would think that whatever amount is awarded should be to recover the amount of lost sales, not a punitive amount as punishment that's scaled to what the person makes.

    To flip this around, if someone committed a premeditated violent crime that they are sentenced to jail for 20 years, I wouldn't expect them to reduce the sentence for a 70 year old because "20 years might be all he's got left, it's a life sentence" vs. the 25 year old who committed the same crime.

  • Re:There's a leak? (Score:3, Interesting)

    by Ivan Stepaniuk ( 1569563 ) on Tuesday February 09, 2010 @09:52AM (#31071316)
    Recentrly, Spain's Plumbers association honored Mario [kotaku.com] "For 28 Years Of Plumbing Accomplishments"
  • Re:Pro-piracy (Score:4, Interesting)

    by xtracto ( 837672 ) on Tuesday February 09, 2010 @09:57AM (#31071372) Journal

    Hey marcan, first let me tip my hat for your work.

    Second, I use some of those "oh noes piratz" enhancing mechanisms to copy my legally purchased games to a USB hard disk and play them. Note that I bought my Wii console while living in Britain, I have bought games in Mexico (where I am from) and USA (cheaper to ask a relative to get them from there) AND Germany (where I am currently living and playing games).

    When I moved to Germany, I refused to take all my CDs/DVDs with me [Laugagge handlers at Lufthansa are a bunch of monkeys.. you should see the state of my bags when they arrived to Germany], therefore I put all the content (serveral music CDs, some DVD movies and several Wii games) into magnetic media and took them with me.

    Having said that, I really applaud Nintendo for doing this specific move, and I completely believe that this is the *right* move to combat piracy.

    It is not illegal to modify hardware you buy, it is not illegal to play a copy of your purchased media, however, IT IS illegal to distribute such media without copyright permit; and that is what Nintendo prosecuted with this guy.

  • Re:Proportionality. (Score:1, Interesting)

    by Anonymous Coward on Tuesday February 09, 2010 @10:30AM (#31071736)

    Depending on the laws. Taxes and Court Ordered restitution aren't always able to be written off in bankruptcy. However, they can take it into account. He has to be allowed ot live (food, clothing, roof over his head) - all within reason. They can enter judgment against him for the rest of the money he makes.

    If they so chose. Out of court settlements - really depends on the terms of the settlement and if he gave up his right to allow it to be written off in bankruptcy.

  • by marcansoft ( 727665 ) <{moc.tfosnacram} {ta} {rotceh}> on Tuesday February 09, 2010 @10:43AM (#31071866) Homepage

    I'll see what I can do about the report.

    Linux has some extra overheads, which is why I suggested eCos, althought the kernel does boot in a of couple seconds and the userspace framework could be very thin. USB, Bluetooth, Wi-Fi are already supported by Linux (they're standard chips/interfaces). Mini doesn't have to support anything, as it can just enable direct access by the PPC by flipping some bits in a register (this is how Linux works), and the advantage of offloading driver support to the Starlet CPU isn't much (the main purpose of Starlet in the Wii architecture is security separation and WC24 mode, not offloading drivers). I have a feeling eCos should be able to support USB, Bluetooth, and SD with ease. Wi-Fi would need some porting of the Linux b43 driver.

    It's worth noting that not running under IOS gains you 11MB of RAM. Linux already takes advantage of this when running under mini, not to mention that hardware support is a lot better, faster, and more featureful than when running legacy Linux under IOS. For example, Linux under mini has proper Wi-Fi support and the SD/USB transfer rates are much faster than under IOS.

    NAND filesystem is pretty much useless and discouraged; it's a lot safer to live our homebrew lives inside an SD card or other external storage, unless you want to dedicate a Wii to Linux use or something like that (but in that case you might as well use JFFS2).

  • Re:Pro-piracy (Score:2, Interesting)

    by Rasperin ( 1034758 ) on Tuesday February 09, 2010 @12:00PM (#31072906)
    Actually, A/C has a valid point here. On the one hand some people download and never buy, on the other hand you have people who buy and only download so they have a digital back up.

    In most realities people both buy and download, they buy the games, music, movies that are worth re-playing/listening/watching. And discard those which are utter crap, believe it or not pirating is capitalism at work. It forces companies to manufacture goods on a competitive level that needs to actually be better for the consumer, instead of the consumer blindly trusting the company made a good product. I literally put the right to pirate with the right for free speech; a company shouldn't censor reviews of it's product nor should it stop people from demoing it with the right to return. The biggest problem is you can't just buy a game anymore, install it, play it for a week and return it as most retailers will not allow you to return it.

    Besides reviewing a game/album/movie there is also the entirely financial side to the fact. Put bluntly, I can't afford as much entertainment I consume, even with a 6figure income. This is where one might construe it as theft; I like to call it the ideals of communism; but in actuality it assists our economy further by making a more even distribution of wealth across the companies. Each generation has had a "thing" up to only 5-10 years ago. They were either Music (70's/80's) Movies (80's/90's) Games (90's/00's) where a market was fully owned by a genre but what you are seeing now is that people buy only what they want of each and pirate the rest that isn't important. Again, with my previous point, and so they're is more need to innovate a broader spectrum of things (eBooks, PC's/Laptops, Phones, Music, Movies, Games) without a particular class of that owning the market. Basically, the more we pirate the more we win as a consumer.

    Just some food for thought. This guy was only enabling what our market is changing into and I support his actions.*Pirate Hat and Eye Patch* arghhhhhh.
  • Re:Pro-piracy (Score:4, Interesting)

    by qubezz ( 520511 ) on Tuesday February 09, 2010 @12:53PM (#31073806)

    More chilling - a corporation with suspicion of someone not 'busted' can get a court to confiscate every computer and device someone owns, and force them to turn over every password to every account they have so the company can root around for evidence for a civil matter (copyright infringement).

    Maybe when the MafIAA alleges an IP address that might have been assigned to you at some point was infringing, and gets the thugs to toss your place and take anything they want and look at all your emails, texts, and friends online you might then want to complain, but you won't own anything electronic anymore to complain with.

  • Re:Curious... (Score:3, Interesting)

    by Hatta ( 162192 ) on Tuesday February 09, 2010 @01:17PM (#31074206) Journal

    I'm more curious as to how they caught him. Are pre-release copies of the game watermarked? Or did he just have a big mouth?

  • Re:Pro-piracy (Score:3, Interesting)

    by Dhalka226 ( 559740 ) on Tuesday February 09, 2010 @01:18PM (#31074232)

    Let me preface by saying that this case was actually a settlement and not a judgment, so my comments don't necessarily apply directly to this one case.

    What's so wrong about suing? Nothing. The problem most people have is how bogus and utterly life-ruining the amounts are. Most people won't be able to pay something like $1.5MM. Ever. Whether an individual cares about piracy or not, right there we have to stop and question whether or not literally ruining a person's life is justice being served. Just because somebody did something wrong does not mean they don't deserve justice to be on their side, it must remain a two-way street.

    Second, they just invent numbers. $1.5MM at, say, $50 retail, they're saying 30,000 people downloaded it in a week. Possible? Yes. Likely? I don't know. Accurate? Definitely not. The number was just pulled out of thin air, and even if the person admitted to what they did they can't defend against a fabricated number. Any defense that "well yes I did exactly what they're accusing me of, but I SHOULDN'T HAVE TO PAY THAT MUCH!" is going to be ill-received. A person essentially has to defend themselves against evidence that doesn't actually exist.

    Third, even if we had exact numbers of people who pirated a given piece of software, the damages are still unknown. This case is actually a perfect example of this. This is not a PC game, where you pirate it, press install and laugh as you saved yourself retail price. This is a Wii game. The only people who can pirate it are those with emulators or some modern-day equivalent of mod chips (are they outdated these days?). Let's say that 30,000 people is exactly correct for how many people downloaded it. You're talking 30,000 people all of whom belong to an audience who has to go well out of their way to pirate this game, not somebody who merely presses download. How many of these people do you honestly believe would have bought this game? These are people who literally are invested in their pirating setup, whether through the time (software download/setup) or actual expenses (potentially software, mod chips, etc). I guarantee the answer isn't 30,000. Beyond that, nobody knows. We can make an educated guess that it is much closer to 0 than 30,000 given our circumstances, but that's about it. Obviously not all cases present a scenario this extreme, but the question of what damages ACTUALLY are remain in every single one of these cases.

    Fourth, a lot of us are uncomfortable or outright angry about the disproportionate resources at play. It's certainly not Nintendo's fault or problem that they're a relatively rich corporation and their lawsuit targets are almost always average joes, but it makes it almost impossible for somebody who didn't do what they're being accused of to defend themselves. It makes the lawsuits seem almost extortionate. The RIAA is a great example of this, as they basically send you settlement terms at the same moment they serve you and the settlements are always vastly under the amount they claim they're going to sue you for. It's a legally-permissible threat. "Pay us $X or we'll bring our hordes of lawyers to crush you for fifty times more." Even if you're innocent, you're going to pause and think long and hard about whether or not it's worth the fight. For that matter, even if you win your lawsuit (or they drop it--tack that on to the list of things that piss people off about lawsuits like this) you may ruin yourself financially. The costs to you will almost certainly be more than the settlement would have cost, and the odds of you recouping that money as part of a judgment have been slim thus far.

    And fifth, if you're looking for explanations you can throw in the oft-heard differences between physical and digital goods, and mesh in the disproportionate punishments. You're almost better off actually stealing a physical good these days; the punishments are probably going to be less severe.

    Put it all together and even people who might agree that p

  • Re:Pro-piracy (Score:2, Interesting)

    by himitsu ( 634571 ) on Tuesday February 09, 2010 @02:07PM (#31074970)
    Then we end up in this same situation.

    Lately Nintendo, and Microsoft weirdly, have been more receptive to releasing Japan-only games in the US. I just bought Tatsunoko vs Capcom for the Wii which has a bunch of characters I have never heard of from 1970's anime. Microsoft is dipping their toe in the water on this as well by releasing Mushihimesama for the 360 without the usual region protections; the damn thing costs $75 to import from Japan but it will play on a stock US 360. It looks like they are recognizing that there is a global market for "niche" games.
  • Re:Pro-piracy (Score:3, Interesting)

    by Cimexus ( 1355033 ) on Tuesday February 09, 2010 @04:02PM (#31076940)

    It's true - region locking isn't permitted here. The most obvious manifestation of this is the fact that any DVD player you buy in Australia can play any region disc with no issues. Really pissed me off when I moved to the US for a few years and found I couldn't play any of my DVDs with a US DVD player except for the couple I had that were region 1 (I have an assortment of region 1, 2 and 4 DVDs, depending on which ones I could find cheapest on Ebay usually).

    Secondly we don't exactly have "laws against violent videogames". We just don't have a classification above MA15+ for video games, so they get refused classification. Without a valid classification, they aren't allowed to be sold on retail shelves. So the effect is sorta the same, but there's a big difference between a law actively against something or banning something, and there just not being an appropriate legal category in which to place certain games. That's why this doesn't really conflict with the 'no region locking' laws ... I have plenty of RC (refused classification) games in Australia - I just bought them overseas or online (i.e. from a different region).

    Slashdot tends to indulge in quite a bit of hyperbole when reporting situations in other countries than the US, particularly surrounding censorship issues - always keep that in mind.

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