Lawsuits filed to address infringement can also play a key role as part of a wider deterrent messaging campaign. In the online arena inhabited by millions of pirates, dual-purpose lawsuits are especially common.
Even for Nintendo, suing every infringer isn’t just impractical. Negative exposure in the media has direct implications for image and branding. Additional risk of polluting or even displacing otherwise positive articles, could jeopardize what amounts to free advertising worth millions of dollars.
A deterrent message delivered on the back of the right case, however, could reach its target audience using the same means, with relatively few downsides. If the company had something similar in mind, a Nintendo lawsuit filed in November seems an almost perfect fit.
Targeting Jesse Keighin, aka EveryGameGuru, the lawsuit poses little risk to Nintendo’s image. It compresses many types of infringing and unlicensed activity into a single case, one so overwhelming in scope that resistance is likely to prove futile. Yet this complaint seems to offer more than just an easy win; on the deterrent front, it may offer something for everyone.
A Message For Gamers Everywhere?
Whether by pure coincidence or meticulous design, each type of offending alleged in the complaint relates to fairly common individual acts that, in isolation, millions of gamers will be familiar with already. The defendant’s potential downfall could send a message to pirates and emulator gamers everywhere: relatively minor individual acts can have serious consequences.
Live-streaming footage of games before their official release is a zero-tolerance issue for Nintendo, for example. Streaming is described in the complaint as the unauthorized public performance and reproduction of Nintendo’s copyrighted works. Live-streaming footage of any Nintendo game, regardless of date of release, using an illegal Switch emulator, is described as a violation of the company’s rights for exactly the same reason.
For those who enjoy sending links to friends or internet strangers, for the purposes of signposting locations where illegal emulators and/or ROMS can be downloaded, Nintendo alleges acts of inducement and contributory infringement. Sharing tiny files such as those carrying encryption keys, amounts to trafficking in circumvention devices under the DMCA.
As alleged, Keighin’s conduct was obviously much more serious than that of the average Joe. However, since relatively few gamers will be interested enough to soak up the details, any deterrent message – should Nintendo intend to send one – could end up especially broad.
That Keighin was a prolific streamer on YouTube, Discord, Twitch, TikTok, Trovo, Kick, Vaughn, Dlive, Picarto, Nimo, Facebook, and Loco, ensures social media reach with serious potential, although maybe not for a while.
Transforming a Dire Legal Position Into Something Worse
In an email dated November 8, notifying Keighin that a complaint had been filed at a court in Colorado, Nintendo expressed concern over evidence preservation, noting that things may have already gone off track.
“We have observed that, since filing of Nintendo’s litigation, you have begun deleting content you posted online, including content referenced in the Complaint. I write to remind you of your duty to preserve such evidence. Upon commencement of a litigation, litigants have a duty to preserve evidence relevant to the case,” the email reads.
“Please immediately confirm whether you have maintained copies of everything you have already deleted and that you will comply with your preservation obligations.”
Having received no such confirmation, a subsequent Nintendo email informed Keighin that efforts to serve him in person had failed multiple times already.
“We have been attempting to serve you with the summons and complaint (attached) for the above-captioned matter for multiple days, but after attempting several addresses, we have been unable to serve you personally. We believe you may be evading service. Indeed, we are aware that you have stated publicly that you are aware of this lawsuit,” the email reads.
Nintendo Not Thrilled By the Chase
In case the gamer preferred to waive formal service of the summons and complaint, Nintendo provided the necessary paperwork and offered to take care of everything upon receipt of a signature. Worth a shot, perhaps, but unlikely to succeed in light of Keighin’s response posted to X.
Court records reveal a number of failed attempts to serve the defendant at various addresses. One of those addresses appeared in five DMCA counternotices sent by Keighin, to reinstate content taken down by Nintendo DMCA notices.
An email sent to Nintendo on October 24, in connection with the suspension of an account for copyright infringement, suggested that further channel suspensions wouldn’t be effective.
According to Nintendo, it’s possible that preparations to avoid being served involved outside assistance. At various addresses, process servers found family members but no physical trace of the defendant.
To support its claim, Nintendo provided a screenshot of a Facebook post; it limited who could respond, but not who could view.
Fueling the Fire
Other evidence to show that Keighin knew about the lawsuit appears in a screenshot of a brief encounter with a 9news journalist hoping for a story. A Facebook post that used profanity to declare zero interest in the case, allegedly addressed a colleague at law firm Jenner & Block LLP using the word “BITCH”.
A friend’s post on X, suggesting that Keighin should fight the “legendary” lawsuit in court dressed as Mario, carried less weight than Keighin’s own posts three days later. They reveal a plan to “piss Nintendo off” by causing the company to waste “a ton of money” on legal fees, before ensuring that “Nintendo gets nothing” after waving “Bowser’s Bankruptcy Magic Wand.”
In his posts on social media, Keighin says that “he’s making sure there’s no precedence [sic] set here” and at minimum expects to “go down in video game history.”
The Nintendo lawsuit filed against Yuzu last year concluded with a win for the gaming company, minus any attempt to have the case settled on the merits, let alone set some type of precedent. Going down in video game history could go either way.
As the person who gifted Nintendo more than they ever imagined, in what is likely to be an uncontested default judgment, history may quickly forget. That Nintendo will emerge without even a scratch, having easily maintained the usually tricky moral high ground, is indeed one for the history books. Maybe even worthy of a memorable quote.
“Should have done more research on me,” Keighin warned Nintendo’s legal team.
“You might run a corporation. I run the streets.”
The complaint and subsequent filings are available here
From: TF, for the latest news on copyright battles, piracy and more.
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