Nintendo really, really doesn’t like piracy.
Earlier this week, Nintendo filed a lawsuit against a California man who allegedly sold software that helps people play pirated games on their Switch. The man also sold customized NES Classic consoles with more games than Nintendo originally loaded onto the device, according to the lawsuit. The Hollywood Reporter was the first to report the case.
The case is the latest episode in Nintendo’s battle against piracy, with the company recently increasing its efforts to shut down any operation that distributes pirated Nintendo games, including websites that served a critical archiving resource. Here, the alleged pirate was seemingly selling at a profit, however.
Naturally Nintendo points to the Digital Millennium Copyright Act in its lawsuit, writing that “Copyright law prohibits both the copying of Nintendo Console Games and the modification of the Nintendo Switch and NES Classic Edition consoles to play unauthorized copies of Nintendo Console Games.”
Nintendo is seeking damages as well as the defendants’ profits, which are currently unknown. Otherwise, Nintendo says it is entitled to $150,000 for each copyright infringed.
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According to the lawsuit, Mikel Euskaldunak has a profile on the shopping website OfferUp, where he offers modifications that allow customers to “play ANY switch games [they] want.”
Motherboard found an OfferUp profile that appears to belong to Euskaldunak. One sold item includes “Nintendo Switch Mod/Hack Homebrew” for $40. Another item that appears to allow a customer to play a pirated version of Super Smash Bros. on their Switch recently sold for $150.
As Motherboard has reported, Nintendo Switch piracy is built on a complex supply chain of exploits, pieces of custom firmware, and tools to allow users to play pirated games. Here, the modifications Euskaldunak allegedly sold include firmware as well as the installation of a physical chip onto the Nintendo Switch, allowing customers to bypass the console’s protections, the lawsuit adds. Specifically, Euskaldunak’s listings include a license for SXOS, a piece of piracy software that its developers sell for profit.
A representative from Team Xecutor, the piracy group behind SXOS which is based overseas, told Motherboard in an email the group did not know Euskaldunak.
"Beside, this is a case based in USA. We operate legally in our jurisdiction, we
can only advise resellers of SX Pro and SX OS to make sure our products are
legal in the area they are distributing it. USA is particular as the legal
system there is very much pro big corporation, but we hope this vendor will
prevail," they wrote.
"We believe even in the USA, our product should be absolutely legal. But ultimately it will be on this court to decide. We hope it will be with with absolute fairness and not under the pressure of another big corporation," the Team Xecutor representative added.
In all, the complaint alleges Euskaldunak modified over 100 Switch consoles.
As well as selling SD cards containing pirated Switch games, Nintendo’s lawsuit also alleges Euskaldunak offered modified NES Classic consoles that come pre-loaded with over 800 different games, many more than the off the shelf version comes with.
“Defendants do not have a license to distribute any of those additional games. Defendants sell these modified NES Classic Edition game systems for $15.00 above retail price,” the lawsuit adds.
Nintendo isn’t just suing Euskaldunak, though. The complaint also points to John Does 1-100; referring to unknown parties which Nintendo believes was involved in the copyright infringement.
Kenneth Parker, one of the lawyers representing Nintendo, directed a request for comment to Nintendo itself. Nintendo of America told Motherboard in a statement "We have nothing to announce regarding this litigation."
Euskaldunak did not immediately respond to a request for comment.
Update: This piece has been updated to include comment from Nintendo of America and Team Xecutor.