Nintendo Wanted to Make an Example Out of Switch Hacker

Mario pumping his fist in the air in a store, with an uncomfortably hypercapitalist energy.

Image: Zhang Peng/LightRocket via Getty Images

A lawyer for the Department of Justice told a judge that the man sentenced to pay $4.5 million to Nintendo in a piracy case would be resigned to a “socially isolated and financially destitute” life.

Gary Bows was treated by some as a funny headline, because a man named Bowser worked with the most prominent Nintendo Switch piracy crew and ultimately became the defender in a criminal case. However, the reality of his case, and of his 40-month sentence, is anything but. A newly released court transcript, first reported by Axios, shows that Nintendo and the DOJ sought to harshly punish Bowser to make an “example” of him and an unwilling symbol of our punitive, carceral approach to piracy.

“It’s difficult and, therefore, rare that we have a foreign actor, a foreign cybercriminal, that we have identified, extradited, and brought to justice before a US court, and because of that, this case gives the court an opportunity to provide a strong message to people following Mr. Bowser’s footsteps,” Annand Patel, a US attorney, told the judge at the sentencing hearing.

The transcript gives a rare glimpse into what Nintendo’s lawyers really think of piracy, and its rhetoric about it.

Ajay Singh, Nintendo of America’s representative, lamented the idea that parents will “be forced to explain to their children why people cheat and why sometimes games are not fair just because one person wants an unfair advantage.” Singh goes on to claim that this case, and any future cases attacking piracy, will work to protect the broader gaming “community,” in which smaller developers operate on “slim margins.” Singh’s argument, while compelling at first blush in its defense of indie devs, forgets that many current developers grew up pirating and emulating video games. Piracy, for as many legitimate problems as it may cause developers, is an essential part of the video game ecosystem, and a vital entry point for low income kids.

He also gives significant insight into not only the activities of hackers but also the processes through which Nintendo has attempted to track them down:

†[The] Defendant’s conduct and that of his co-conspirators has deeply affected Nintendo of America and what we do, as well as the community we serve.

We also believe this is a unique opportunity for the court — sorry, for the unlawful hacking community and for the gaming community as a whole to understand that IP crimes cause real harms and are serious offenses … the hacking community and much of the wider gaming community is watching the outcome of this case very closely, and Team Xecuter leaders have actively monitored Nintendo litigation in the past, going so far as to set up Pacer accounts under fake names to pull our filings … We know that this criminal case has dissuaded some members, but it has not dissuaded all of them, and the next steps will be impacted by the sentence the court imposes here.”

Bowser, a Canadian national, was arrested in New Jersey while awaiting a connecting flight from the Dominican Republic, where he lived, to Canada, for his involvement in Team Xecuter, a notable hacking group specializing in Nintendo Switch piracy. Bowser, who ran the team’s marketing and customer service arm, pleaded guilty to all accounts, for a case in which the other two defenders, team lead Max Louarn and co-conspirator Yuanning Chen, were charged but were not present in the United States.

Following 16 months in custody, a judge sentenced Bowser to 40 months in prison, followed by a 3-year supervisory period. He also has to pay $4.5 million in restitution to Nintendo of America—to be paid in monthly installations not exceeding 10 percent of his monthly income. It is an intentionally harsh sentence designed to deter future hacking.

The recently released court transcripts paint an unflattering picture of Nintendo of America as insecure and unnecessarily punitive. Patel goes as far as to acknowledge the fact that they are not only inflicting a three year prison sentence upon him, but that following his release, “he will be socially isolated and financially destitute.” A situation that the DOJ admits is “very similar to [his situation] when he was initially introduced to Team Xecuter.”

The DOJ’s argument is that, with a harsher sentence, future hackers will be deterred from attempting to profit off of piracy. Nintendo, both in its official statement of harm and its statement to the court during Bowser’s sentencing, lists the supposed damages that hacking inflicts on not only its business, but the broader gaming “community.” It claims that Team Xecuter and Bowser inflicted more than $65 million worth of damages on the company. However, it is worth noting that the reality of whether or not pirated video games translate directly to lost sales is highly contested. Pirated content is being unlawfully accessed, this is true, but that does not mean that the content would have been purchased legally had piracy not been an option, as many studies have shown. In fact, there is evidence that video game piracy in particular has helped companies break into developing markets.

However, despite Nintedo and the DOJ’s claims that an example must be made out of Gary Bowser, Bowser’s attorney makes a compelling argument that a harsher sentence will not lead to significant deterrence:

“You know, the concept of general deterrence, and the reading I’ve done on it, is that it’s not really the length of an individual’s sentence that really fosters general deterrence; it’s certainty of apprehension, judgment, conviction. The length of the sentence really does not have that great of an impact on general deterrence. And I agree with what Mr. Singh and what Mr. Patel said, that this case will have some attention and the online-community people will read about it, but the way to deter people is to arrest more people, charge more people, take more civil actions against people. I know the government, and I know Nintendo in particular, are really focused on that and they’re making strong efforts in that regard. But the court should not be used as a vehicle to send a message, so to speak, to others through one person by imposing an unduly harsh sentence simply for the purpose of sending a message to others. First, I don’t think it’s empirically supported, and, again, I don’t think that’s a fair way to treat Bowser in particular, who, again, the, you know, third defender in this three-defendant case and the least culpable of the three people involved and the one that was the most dispensable and the least compensated.”

Bowser was given a 40 month sentence, reduced from the 60 month sentence which Nintendo and the DOJ requested. This sentence, according to the judge, attempts to strike a balance between the fair treatment of Bowser and the DOJ’s desire to turn him into an example. I doubt that it has succeeded at either.

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