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A Justice Department attorney told a judge the man sentenced to pay Nintendo $4.5 million in a piracy case is resigned to a “socially isolated and financially destitute” life.
Gary Bowser was treated as a funny headline by some because a man named Bowser worked with the most prominent Nintendo Switch piracy crew and ended up becoming the accused in a criminal case. However, the reality of his case and 40-month sentence is anything but. A newly released court transcript, first reported by Axios, shows that Nintendo and the DOJ attempted to punish Bowser harshly to be an “example” to him and an involuntary symbol of our punitive, prison-like approach to piracy.
“It is difficult and therefore rare that we have a foreign actor, a foreign cybercriminal, that we have identified, extradited and brought before a US court and therefore this case gives the court an opportunity to send a strong message to people, following in 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 about piracy, and their rhetoric about it.
Nintendo of America representative Ajay Singh decried the idea of parents being “forced to explain to their children why people cheat and why sometimes games aren’t fair just because a person wants an unfair advantage.” Singh goes on to claim that this case, and all future cases of piracy attacks, will help protect the broader gaming “community” where smaller, “narrow-margin” developers operate. While Singh’s argument is initially compelling in his defense of indie developers, it forgets that many current developers grew up around pirates and video game emulation. Piracy is an integral part of the video game ecosystem and a key entry point for low-income kids because it can cause many legitimate problems for developers.
He also provides important insights into not only the activities of hackers, but also the processes through which Nintendo tried to track them down:
“[The] The behavior of the defendant and his co-conspirators has deeply affected Nintendo of America, what we do and 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 harm and constitute serious criminal offenses… the hacking Community and much of the gaming community at large The community is closely watching the outcome of this case, and Team Xecuter leaders have actively monitored Nintendo litigation in the past, going so far as to set up Pacer accounts under false names to preserve our files to retrieve… We know this criminal case has dissuaded some members, but it has not dissuaded them all and the next steps will be influenced by the verdict handed down by the court here.”
Bowser, a Canadian citizen, was arrested in New Jersey while awaiting a connecting flight to Canada from the Dominican Republic, where he lived, for his involvement with Team Xecuter, a notable hacking group focused on Nintendo Switch piracy specialized. Bowser, who led the team’s marketing and customer service divisions, pleaded guilty to all counts in a case in which the other two defendants, team leader Max Louarn and co-conspirator Yuanning Chen, were charged but were not present in the United States.
After 16 months in prison, a judge sentenced Bowser to 40 months in prison, followed by 3 years of probation. He also has to repay $4.5 million to Nintendo of America in monthly installments that cannot exceed 10 percent of his monthly income. It’s an intentionally harsh phrase meant to discourage future hacking.
The recently released court transcripts paint an unflattering picture of Nintendo of America as unsafe and unnecessarily punitive. Patel even goes so far as to acknowledge the fact that not only are they giving him a three-year sentence, but that upon his release he will be “socially isolated and financially destitute.” A situation the DOJ admits is “very similar [his situation] when he was first introduced to Team Xecuter.”
The DOJ argues that with a tougher ruling, future hackers will be discouraged from attempting to profit from piracy. Nintendo, in both its official damage statement and its testimony in court during Bowser’s sentencing, lists the alleged damage hacking is causing not only to its business but to the broader gaming “community.” It is alleged that Team Xecuter and Bowser caused more than $65 million in damage to the company. However, it’s worth noting that the reality of whether or not pirated video games directly lead to lost sales is highly debatable. While pirated content is accessed unlawfully, that doesn’t mean the content would have been bought legally if pirated content wasn’t an option, as many studies have shown. In fact, there is evidence that video game piracy in particular has helped companies enter developing markets.
Yet despite claims by Nintedo and the DOJ that an example must be made of Gary Bowser, Bowser’s attorney makes a compelling argument that a tougher sentence will not result in a significant deterrent:
“You know, the concept of general deterrence, and what I’ve read about it, is that it’s not really the length of an individual’s sentence that really promotes general deterrence; it is certainty of arrest, arrest, conviction. The length of the sentence really doesn’t have much of an impact on overall deterrence. And I agree with what Mr. Singh and Mr. Patel have said, that this case will get some attention and people in the online community will read about it, but the way to put people off is to arrest more people, more To accuse people, to take more civil lawsuits against people. I know the government, and I know Nintendo in particular, is really focused on that and they’re making a lot of effort in that regard. But the court should not be used as a vehicle, so to speak, through one person to send a message to others by imposing an unduly harsh sentence just to send a message to others. First, I don’t think it’s empirically supported, and again I don’t think that’s a fair way of treating Mr Bowser in particular, who in turn is the third defendant in this three-crime case and the least culpable of the three involved people and whoever was most expendable and least compensated.”
Bowser was sentenced to 40 months in prison, reduced from the 60-month sentence that Nintendo and the DOJ had sought. This ruling, the judge said, attempts to strike a balance between treating Bowser fairly and the DOJ’s desire to make him an example. I doubt that both succeeded.