As provider of the third most popular video game console of all time, Nintendo needs little introduction. The company’s Nintendo Switch platform has sold more than 143 million consoles, according to the complaint filed by Nintendo against an individual who boasted that he was selling access to multiple Nintendo game titles.
In an October 2024 letter to Nintendo, he said that he “had ‘a thousand burner channels’ to stream from and “can do this all day.”
Nintendo alleged that the individual, Jesse Keighin, who goes by the name Every Game Guru in social and streaming platforms online, streams pirated video games via YouTube, Discord, Twitch, TikTok, Trovo, Kick, Vaughn, Dlive, Picarto, Nimo, Facebook, and Loco, according to the Nintendo complaint; including at least fifty instances of games that had not yet been released.
Nintendo had submitted “dozens” of takedown notices as per Section 512 of the US Copyright Act, and multiple distribution platforms did comply with the requests, which are seen as obligations as per the statute.
Overcoming technological protection measures
Keighin also used illegal software that emulated the Nintendo Switch environment on PCs, Macs and Android devices; both circumventing anti-piracy safeguards implemented by Nintendo which allowed him both to stream the games from those devices, and to participate in the game play himself. Nintendo licenses its Nintendo Switch games only for play on the Nintendo Switch console.
Nintendo also implements security features it refers to as technological protection measures, to prevent copying or infringing use of its game software; including the use of proprietary cryptographic keys and distribution on proprietary cartridges.
The Nintendo Switch console itself has its own technological protections to reduce the likelihood of hacking or modification to the console, and to prevent access to cryptographic keys.
Nintendo further justifies its complaint by citing examples of cases where technological measures are circumvented, violating the Copyright Act 17 USC section 1201.
Damages sought
According to the Complaint, “Defendant is fully aware of the use of emulators to perform circumvention, and to facilitate piracy on a colossal scale. By not only streaming leaked games, but also directly providing users links to circumvention software (Nintendo Switch emulators), Nintendo’s proprietary cryptographic keys (prod.keys), and pirated ROM repositories, Defendant is giving his viewers everything they need to pirate as many games as they wish.”
Nintendo seeks the maximum financial penalty of $150,000 allowed by the Copyright Act for each act of infringement, plus $2,500 for each violation of the anti-circumvention and anti-trafficking provisions of the Act. Nintendo is also seeking actual damages, which would amount to revenues lost by Nintendo plue Keighin’s profits; plus legal fees incurred by the company.
Further reading
Nintendo of America Ind., Plaintiff v. Jesse Keighin, Individually, Defendant. Complaint and Demand for Jury Trial. Case No: 1:24-v-03101-STV. Document 1. November 6, 2024. US District Court for the District of Colorado.
Gamer sent Nintendo a letter boasting he had ‘a thousand burner channels’ to stream pirated games from and could ‘do this all day’ – Now Nintendo has sued him for millions of dollars. Article. By Wesley Yin-Poole. November 11, 2024 IGN
Nintendo suing gamer for streaming Zelda: Echoes of Wisdom, Mario & Luigi: Brothership, and more ahead of release. Article. by Nicole Carpenter. Noverber 8, 2024. Polygon
Why it matters
Nintendo states the issues succinctly in its Complaint: “While all of Defendant’s infringement is harmful, his repeated infringement of prerelease games is especially damaging. Streaming leaked games prior to their publication normalizes and encourages prerelease piracy – Defendant is signaling to viewers that they too should acquire a pirated copy and play the game now, without waiting for its release and without paying for it. Prerelease piracy harms law-abiding Nintendo customers who may have been waiting for a particular game release for months or years, and then may see gameplay and spoilers online that ruin their own surprise and delight when experiencing the game. In turn, prerelease piracy causes Nintendo tremendous harm, including millions of dollars of monetary harm from lost video game sales both of Nintendo’s and its licensees’ copyrighted games, and loss of goodwill.”
