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`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 1 of 41
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON AT SEATTLE
`
`Plaintiff,
`
`v.
`
`
`NINTENDO OF AMERICA INC.,
`
`
`
`
`
`
`GARY BOWSER,
`
`
`
`
`
`NO.
`
`COMPLAINT
`
`JURY DEMAND
`
`Defendant.
`
`
`
`PRELIMINARY STATEMENT
`
`Plaintiff Nintendo of America Inc., by and through its counsel, on personal knowledge as
`
`to its own actions and on information and belief as to the actions, capabilities, and motivations of
`
`others, hereby alleges as follows:
`
`1.
`
`Nintendo of America Inc., a wholly-owned subsidiary of Nintendo Co., Ltd.,
`
`markets and distributes electronic video game consoles, games, and accessories developed by
`
`Nintendo Co., Ltd., including the Nintendo Switch and the Nintendo Switch Lite consoles
`
`(collectively the “Nintendo Switch”), as well as the proprietary and copyrighted software that
`
`serves as the Nintendo Switch’s operating system. Collectively, Nintendo of America Inc. and
`
`COMPLAINT - 1
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 2 of 41
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`Nintendo Co., Ltd. are referred to herein as “Nintendo.” Nintendo also makes award-winning
`
`video games that can be played on the Nintendo Switch. To protect its intellectual property rights,
`
`and to ensure that only authorized and licensed Nintendo Switch games can be played on the
`
`Nintendo Switch, Nintendo designed the Nintendo Switch with sophisticated security features
`
`meant to prevent unauthorized operating systems from being used on the Nintendo Switch, and to
`
`prevent pirated video games from being played on the Nintendo Switch. The Nintendo Switch is
`
`one of the most popular video game consoles of all time.
`
`2.
`
`Defendant Gary Bowser is one of the leaders of Team Xecuter, a pirate operation
`
`that unlawfully manufactures and traffics in an unauthorized operating system called the “SX OS,”
`
`and accompanying piracy tools which install it (the “Circumvention Devices”), for commercial
`
`gain. The purpose of the Circumvention Devices and the SX OS—developed, manufactured, and
`
`trafficked under Defendant’s leadership—is to hijack the Nintendo Switch by interrupting and
`
`bypassing its technological security features and protections. This thereby allows the Nintendo
`
`Switch to be used for massive intellectual property theft and infringement.
`
`3.
`
`The Circumvention Devices strip away or circumvent technological protection
`
`measures Nintendo put into place to protect its invaluable copyrighted software and video games
`
`from unauthorized access and copying (the “Technological Measures”).
`
`4.
`
`Once this circumvention has occurred, the SX OS is able to run on the Nintendo
`
`Switch, modifying the authentic, authorized Nintendo Switch operating system, thus allowing
`
`users to bypass the Technological Measures to obtain and play virtually any pirated game made
`
`for the Nintendo Switch, all without paying anything to Nintendo or to any of the large number of
`
`other game developers and publishers making and selling games for the Nintendo Switch. For
`
`example, users can find pirated Nintendo Switch games online, transfer unauthorized copies to a
`
`COMPLAINT - 2
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 3 of 41
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`memory card, insert that card into the Nintendo Switch, and then, with the SX OS running, play
`
`those infringing games on the hacked Nintendo Switch for free. If a user already owns a lawful,
`
`properly-purchased Nintendo Switch game, the user can use the SX OS and accompanying features
`
`to turn that game into an unlawful copy, which allows the user to share additional unauthorized
`
`copies with more users also using the SX OS on the Nintendo Switch.
`
`5.
`
`Defendant has been one of only a handful of key members of Team Xecuter,
`
`running the day-to-day operations of the hacking group, including: operating websites that traffic
`
`in the Circumvention Devices and SX OS; trafficking in the devices through other distribution
`
`channels, including multiple resellers; leading the marketing of the products and websites,
`
`including overseeing advertisements on the group’s websites and managing income from ad sales;
`
`and overseeing and/or liaising among Team Xecuter’s other key players, including distribution
`
`and manufacturing centers abroad, forum moderators, individual users, and resellers selling the
`
`Circumvention Devices, including in the United States and in this District, several of whom have
`
`already been adjudicated as having engaged in unlawful activity by two federal courts. Indeed,
`
`Defendant has been reported to be “the closest thing to a public face for the team of coders and
`
`foreign manufacturers that made up the [Team Xecuter] supply chain.”
`
`6.
`
`As part of his leadership, Defendant has operated at least four websites—TEAM-
`
`XECUTER.COM, XECUTER.ROCKS, TEAM-XECUTER.ROCKS, and, upon information and
`
`belief, SX.XECUTER.COM (the “Websites”)—through which he has unlawfully trafficked in,
`
`promoted, and marketed the SX OS and Circumvention Devices. Defendant also created and ran
`
`the website MAXCONSOLE.COM, which served as a central location for Defendant to post
`
`reviews, advertisements (including from resellers), and support forums for the Circumvention
`
`Devices and the resellers selling those Devices. Defendant has also provided material support to
`
`COMPLAINT - 3
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 4 of 41
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`reseller websites through which Circumvention Devices have been trafficked, including in this
`
`District, and has also operated a number of accounts at blogs, forums, and other online news
`
`outlets, typically under the alias “Gary Opa” or “GaryOPA,” which is sometimes displayed along
`
`with Defendant’s real name, as in: “Gary Bowser (garyopa).” Defendant will often take the content
`
`that he has posted on the Team Xecuter Websites under the name Team Xecuter, and post the same
`
`content to his own site and third-party sites under the alias GaryOPA, showing that he is the illegal
`
`operation’s front man, and demonstrating that he frequently had control over the content of the
`
`Websites.
`
`7.
`
`Defendant has been a leader in the hacking and piracy community targeting
`
`Nintendo’s intellectual property more broadly for many years. Defendant has trafficked in
`
`circumvention devices and helped facilitate infringement of Nintendo video games not only on the
`
`Nintendo Switch, but also on earlier consoles, including the Nintendo DS, released in 2004, the
`
`Wii, released in 2006, and the Nintendo 3DS, released in 2011.
`
`8.
`
`Defendant is also known to law enforcement. Defendant was charged in Canada in
`
`2008 in connection with his elaborate operation involving counterfeit Nintendo video games and
`
`the modification of video game consoles. And late last year, Defendant was indicted by the United
`
`States Attorney’s Office for the Western District of Washington for, inter alia, trafficking in
`
`circumvention devices, the vast majority of which target Nintendo consoles, and which include the
`
`devices at issue here. The indictment in United States v. Louarn et al., No. 2:20-cr-00127-RSL
`
`(the “Indictment”), alleges that Defendant, along with two other individuals—Max Louarn and
`
`Yuanning Chen—ran a criminal enterprise under the name Team Xecuter, which “developed,
`
`manufactured, marketed, and sold a wide variety of circumvention devices . . . designed . . .
`
`primarily to circumvent technological measures in a manner that allowed users to play pirated
`
`COMPLAINT - 4
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 5 of 41
`
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`versions of copyrighted videogames . . . .” The indictment notes that the enterprise specifically
`
`designed the devices “to circumvent the technological measures in . . . Nintendo Switch consoles.”
`
`9.
`
`Under the joint leadership, direction, and control of Defendant, Chen, and Louarn,
`
`Team Xecuter has grown into an international pirate ring, manufacturing and trafficking in
`
`unlawful Circumvention Devices and operating systems on a massive scale in this District and
`
`around the globe. On information and belief, Defendant has trafficked in many thousands of
`
`Circumvention Devices and downloads of the SX OS throughout the United States, including in
`
`this District.
`
`10.
`
`Indeed, Team Xecuter’s unlawful SX OS is the most-installed piracy software on
`
`the Nintendo Switch. At one point, the SX OS was pre-installed on 89% of modded/hacked
`
`Nintendo Switch products available for illegal sale.
`
`11.
`
`Defendant’s unlawful conduct has caused Nintendo and all those third parties that
`
`develop games for the Nintendo Switch platform tremendous harm. Nintendo’s copyrighted
`
`games are at the heart of its popularity, and Nintendo’s business necessarily relies upon the
`
`authorized and licensed sale of authentic copies of the video games, and upon the trust of third-
`
`party game developers that the games they develop will be secure on Nintendo’s consoles and will
`
`not be illegally distributed or played.
`
`12.
`
`This is exactly why Nintendo has invested and continues to invest in Technological
`
`Measures to secure its consoles and protect against unauthorized access to and infringement of
`
`copyrighted games developed by Nintendo and thousands of third-party developers.
`
`13.
`
`Recognizing the threats faced by copyright owners like Nintendo in the age of
`
`digital piracy, Congress enacted the Anti-Circumvention and Anti-Trafficking provisions of the
`
`Digital Millennium Copyright Act (“DMCA”), making it illegal to circumvent or traffic in devices
`
`COMPLAINT - 5
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 6 of 41
`
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`that circumvent technological protections put into place to protect against unlawful access to and
`
`copying of copyrighted works.
`
`14.
`
`Defendant’s unlawful conduct falls squarely within these provisions. The SX OS
`
`and Circumvention Devices disable the Nintendo Switch’s Technological Measures—which
`
`Nintendo put in place to protect its copyrighted works from unlawful access, copying, and
`
`playing—thereby enabling, and exacerbating, widespread piracy.
`
`15.
`
`Defendant’s importation, marketing, sale, and/or trafficking in the Circumvention
`
`Devices and the SX OS has directly injured and damaged Nintendo, infringes and threatens
`
`irreparable injury to Nintendo’s intellectual property rights, and violates the anti-trafficking
`
`provisions of the DMCA, 17 U.S.C. § 1201 et seq., entitling Nintendo to the relief sought herein.
`
`16.
`
`In addition, Defendant’s website TEAM-XECUTER.COM prominently displays
`
`three blog posts that contain images of the Nintendo Switch running the unauthorized operating
`
`system, including unauthorized images of Nintendo’s copyrighted games being pirated using the
`
`SX OS. These three posts—collectively displaying nine images from Nintendo’s copyrighted
`
`games—violate Nintendo’s exclusive right to display its audiovisual works under 17 U.S.C. §
`
`106(5), and entitle Nintendo to the relief sought herein.
`
`17.
`
`Two U.S. federal courts have already ruled that the trafficking of the Circumvention
`
`Devices and of the SX OS violates the DMCA.
`
`18.
`
`In Nintendo of America Inc. v. Dilts et al., 3:20-cv-01076 (N.D. Ohio 2020), a
`
`federal court entered a $2 million judgment and permanent injunction against a U.S.-based reseller
`
`of the Circumvention Devices working at Defendant’s direction. The court enjoined the
`
`defendants from offering for sale the same Circumvention Devices at issue here because the
`
`devices violated the anti-trafficking provisions of the DMCA, and the court, among other things,
`
`COMPLAINT - 6
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 7 of 41
`
`
`
`
`directed the defendants to shut down their website and Facebook group, and to destroy “all
`
`Circumvention Devices, [and] all copies of SX OS . . . .” Dilts, No. 3:20-cv-01076, Dkt. 16.
`
`19.
`
`In Nintendo of America Inc v. ANXCHIP.COM et al., 2:20-cv-00738-TSZ (W.D.
`
`Wash. 2020), this Court awarded Nintendo a judgment and permanent injunction against multiple
`
`other resellers of the Circumvention Devices. The judgment included violations of both the anti-
`
`trafficking provisions of the DMCA, arising from the selling of the Circumvention Devices, as
`
`well of the Copyright Act, 17 U.S.C. § 101 et seq. (“Copyright Act”).
`
`20.
`
`Notwithstanding some of the success Nintendo has had enforcing its rights against
`
`resellers of the Circumvention Devices, Defendant has continued to thumb his nose at the law,
`
`manufacturing and trafficking in the Circumvention Devices and SX OS. He has empowered
`
`resellers to re-emerge and launch new websites—including after the same websites had been shut
`
`down by courts and other vehicles of enforcement—and facilitated additional avenues of
`
`distribution, all forcing Nintendo into a game of whack-a-mole. In fact, as set forth below, even
`
`as Nintendo has implemented Technological Measures aimed at addressing the unlawful
`
`Circumvention Devices, Defendant and Team Xecuter have rolled out new Circumvention Devices
`
`aimed at circumventing those newer Technological Measures.
`
`21.
`
`Today, the Circumvention Devices trafficked by Defendant continue to put more
`
`than 79 million Nintendo Switch and Nintendo Switch Lite consoles at risk from piracy, and
`
`Defendant has further facilitated the provision of free pirated content to users, such that the
`
`Circumvention Devices appear economical to the willing consumer.
`
`22.
`
`The harm to Nintendo is manifest and irreparable.
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`COMPLAINT - 7
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 8 of 41
`
`
`
`
`NATURE OF THE ACTION
`
`23.
`
`This is a civil action seeking equitable relief and damages for unlawful trafficking
`
`in circumvention devices in violation of the DMCA, 17 U.S.C. § 1201 et seq., and for unlawful
`
`display of protected works in violation of the Copyright Act, 17 U.S.C. § 101 et seq.
`
`JURISDICTION AND VENUE
`
`24.
`
`This Court has original jurisdiction over this action pursuant to 28 U.S.C. §§ 1331,
`
`1338(a), and 17 U.S.C. §§ 106, 501, 1201, & 1203.
`
`25.
`
`Defendant is subject to the jurisdiction of this Court pursuant to Washington
`
`Revised Code § 4.28.185 and Federal Rule of Civil Procedure (“Rule”) 4(k)(1) because he
`
`transacted business in the State of Washington and in this District and has specifically marketed,
`
`offered to the public, and otherwise trafficked in the Circumvention Devices and the SX OS in the
`
`United States and in this District. On information and belief, Defendant purposefully directed his
`
`activities into this District and to residents of this District, including by directing the consummation
`
`of online transactions with residents of this District on the Websites, facilitating the shipment of
`
`Circumvention Devices into this District, and in so doing, availing himself of the privilege of
`
`conducting business in this District. Nintendo’s claims arise out of and relate to Defendant’s
`
`activities in this District. Between June 1, 2018 and January 15, 2021, the State of Washington
`
`was first in the country for Google searches for SX OS and SX Pro.
`
`26.
`
`Indeed, and as set forth in the Indictment, the connections to this District are strong.
`
`Specifically, Team Xecuter, under Defendant’s leadership and direction, caused at least one
`
`Circumvention Device to be delivered to investigators within this District. When those
`
`investigators installed and activated the SX OS software, the Nintendo Switch consoles
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`COMPLAINT - 8
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 9 of 41
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`communicated with servers both inside and outside the District—including servers operated by
`
`Nintendo—from the District.
`
`27.
`
`In addition, Defendant—who primarily traffics in unlawful devices designed solely
`
`for Nintendo products—expected or should have reasonably expected his acts to have
`
`consequences and cause harm in Washington, the location of Nintendo of America Inc.’s
`
`headquarters in the United States.
`
`28.
`
`In addition, Defendant’s Websites are interactive. They allow users to create
`
`accounts, download files—including illegal circumvention software—communicate with Team
`
`Xecuter leadership and other SX OS users, post content, and obtain SX OS license keys. And
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`consumers within Washington are regularly visiting and using the Websites. Over the past year,
`
`Washington State residents have visited Defendant’s Websites nearly 25,000 times, and viewed
`
`pages on the Websites over 70,000 times. Defendant also supervised and exercised control over
`
`websites that were resellers of Team Xecuter products, who shipped Circumvention Devices
`
`throughout the U.S., including into this District. Those sites allowed users to browse for products,
`
`write reviews of products, contact customer service, add items to a cart, purchase items, and
`
`process payments. Defendant also engaged in back-and-forth direct communications with Team
`
`Xecuter customers—including in the U.S.—through Defendant’s alias GaryOPA on various online
`
`forums.
`
`29.
`
`Alternatively, Defendant is subject to the jurisdiction of this Court pursuant to Rule
`
`4(k)(2). Nintendo’s claims arise under federal law, and Defendant targets the U.S. generally.
`
`Defendant’s Websites provide links to “authorized resellers” of the Circumvention Devices who
`
`are “recommended” by Defendant, including multiple resellers that ship to the U.S. and have
`
`warehouses within the U.S. Indeed, Defendant has specifically recommended resellers based on
`
`COMPLAINT - 9
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 10 of 41
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`the fact that they have U.S. warehouses. The Websites have prominently displayed ads from
`
`resellers targeting U.S. customers. At one point, an advertisement on the left-hand side of every
`
`page on TEAM-XECUTER.COM displayed: “USA/DE Warehouse Local Shipping.” Another
`
`advertisement advertised a reseller that would accept PayPal, was the “Fastest Seller,” and offered
`
`“USA/EU Shipping.”
`
`30. Moreover,
`
`the U.S.
`
`is
`
`the country with
`
`the most visitors
`
`to TEAM-
`
`XECUTER.COM and the second most visitors to SX.XECUTER.COM. Indeed, on information
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`and belief, Defendant has provided his offerings to hundreds of thousands of U.S. consumers, has
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`derived substantial revenue from interstate and international commerce, and has entered into
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`agreements with third parties in the U.S. in furtherance of his unlawful activities.
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`31.
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`Finally, on information and belief, Defendant is currently in this District and may
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`be served here; thus, Defendant is subject to the jurisdiction of this Court pursuant to Washington
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`Revised Code § 4.28.080 and Rule 4(k)(1) because he will be served personally within this
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`District.
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`32.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), (c), and/or 28
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`U.S.C. § 1400(a) in that the Defendant is an individual subject to personal jurisdiction in this
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`District.
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`THE PARTIES
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`33.
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`Nintendo of America Inc. is a Washington corporation headquartered in Redmond,
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`Washington. Nintendo of America Inc. is a wholly-owned subsidiary of Nintendo Co., Ltd., a
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`Japanese company headquartered in Kyoto, Japan. Nintendo of America Inc. is responsible for
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`the marketing and sale of Nintendo’s products, and the enforcement of Nintendo’s intellectual
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`property rights, in the United States. Nintendo Co., Ltd. develops, and Nintendo of America Inc.
`
`COMPLAINT - 10
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 11 of 41
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`markets and distributes, electronic video game consoles, games, and accessories. Collectively,
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`Nintendo of America Inc. and Nintendo Co., Ltd. are referred to herein as “Nintendo.”
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`34.
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`Defendant Gary Bowser has worked with a network of developers; established a
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`distribution chain of resellers, testers, and websites; and designed the marketing and content of
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`other public-facing websites for Team Xecuter. In addition to using the name Team Xecuter and
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`acting as Team Xecuter on the Websites and otherwise, Defendant also operated as GaryOPA on
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`other online news or blogging outlets promoting Team Xecuter products and services, recruiting
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`testers of the service, and answering questions about the products. Upon information and belief,
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`day-to-day decisions regarding Team Xecuter’s business were made by Defendant.
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`35.
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`Defendant, through the Websites and other channels of distribution, traffics in
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`devices that circumvent the Nintendo Switch’s Technological Measures and that facilitate
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`infringement of numerous of Nintendo’s copyrighted works on a massive national and
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`international scale.
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`FACTUAL BACKGROUND
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`36.
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`Nintendo is a company and brand famous throughout the United States and the
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`world, known by consumers of all ages for its video games, video game consoles, and video game
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`characters.
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`37.
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`For decades, Nintendo has been a leading developer and producer of video games
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`and video game consoles. In 1983, Nintendo released the Family Computer in Japan and in 1985,
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`released the Nintendo Entertainment System, or “NES,” in the United States, which introduced
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`millions of consumers to now-classic games like Super Mario Bros., The Legend of Zelda, and
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`Donkey Kong. The NES console also introduced millions of consumers to some of Nintendo’s
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`original and long-lasting characters, including Mario and Luigi, Yoshi, Link, Donkey Kong, and
`
`COMPLAINT - 11
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

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`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 12 of 41
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`
`
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`Samus Aran. Over the ensuing decades, Nintendo followed up the popularity of the NES console
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`with the release of such groundbreaking home video game consoles as the Super Nintendo
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`Entertainment System (or “SNES”), Nintendo 64 (or “N64”), Nintendo GameCube, Wii, Wii U,
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`and the Nintendo Switch, and groundbreaking handheld video game consoles such as the Game
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`Boy, Game Boy Color, Game Boy Advance, Nintendo DS, Nintendo 3DS, the Nintendo Switch,
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`and recently, the Nintendo Switch Lite (a sister console of the Nintendo Switch dedicated to
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`handheld play). The Game Boy family of consoles in particular is one of the most popular video
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`game consoles ever released, and introduced consumers to landmark games like Tetris, Kirby’s
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`Dream Land, and Pokémon. Since 1983, Nintendo has sold more than 4.7 billion video games and
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`more than 750 million hardware units globally. Global sales of the Nintendo Switch alone have
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`topped 79 million, and the top five Nintendo-developed copyrighted Switch games have sold over
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`20 million copies each, rising above 129 million global sales in total.
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`38.
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`Nintendo has built its company through substantial creative and financial
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`investment in the development of new consoles, video games, products, technological security
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`protections, intellectual property, and marketing. Nintendo has garnered significant consumer
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`awareness and goodwill through its commitment to developing and delivering innovative, fun, and
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`memorable video game consoles and games. Nintendo’s video games are creative, audiovisual
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`works with detailed stories, characters, and elements that are wholly original to Nintendo and
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`protected by the Copyright Act.
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`39.
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`Nintendo has made substantial investments in the development, marketing, and
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`promotion of its innovative products and services. Nintendo and its authorized licensees create
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`and publish many popular video games made specifically and exclusively for play on Nintendo’s
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`video game consoles.
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`COMPLAINT - 12
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 13 of 41
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`
`
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`40.
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`The popularity of Nintendo’s video games and video game consoles has made
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`Nintendo the target of intellectual property pirates who benefit from Nintendo’s innovation and
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`investment by making unauthorized copies of Nintendo’s video games, or by creating (and selling)
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`the means by which others can play pirated copies of Nintendo’s video games on a Nintendo
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`console.
`
`41.
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`Nintendo has taken many steps and expended significant resources to halt the illegal
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`copying, marketing, sale, and distribution of unauthorized copies of Nintendo’s video games (or
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`games made by other Nintendo-authorized licensees) designed to be played on Nintendo’s video
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`game consoles, and to halt the illegal trafficking in devices that allow users to play unauthorized
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`copies of games on Nintendo’s video game consoles. Nintendo’s efforts have included the
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`implementation of technological protection measures in Nintendo’s video game consoles that
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`protect against unauthorized access to Nintendo and its licensees’ copyrighted works, and that
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`prevent the unauthorized play of pirated games on the consoles.
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`The Nintendo Switch’s Technological Measures Protect the Nintendo Switch Against
`Piracy
`
`42.
`
`In March 2017, Nintendo released a new console called the Nintendo Switch, a
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`home video game console that can also be played “on the go.” It quickly sold out in stores across
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`the country and around the world, and, in the four years since, has become one of the best-selling
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`video game consoles of all time, selling over 79 million units worldwide.
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`43.
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`In late 2019, Nintendo released a new version of the Nintendo Switch with better
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`battery life, and the Nintendo Switch Lite, which runs the same games as the Nintendo Switch, but
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`is smaller and can be played only as a handheld device. As noted above, the Nintendo Switch and
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`COMPLAINT - 13
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 14 of 41
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`Nintendo Switch Lite video game consoles are referred to collectively herein as the “Nintendo
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`Switch.”
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`44.
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`The top five Nintendo-developed games released for the Nintendo Switch alone
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`have sold more than 129 million copies as of December 2020, and individually each title has sold
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`over 20 million copies. These games, as well as others produced by Nintendo, are subject to valid,
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`registered copyrights either owned or exclusively controlled by Nintendo.
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`45.
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`Like other Nintendo video game consoles, the Nintendo Switch contains numerous
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`Technological Measures designed to prevent unauthorized access to the console and games,
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`prevent bypassing or impairing Nintendo’s copyrighted operating system, and prevent the
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`unauthorized copying, playing, or sharing of games.
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`46.
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`For example, each Nintendo Switch contains an encrypted identifier, or
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`“signature,” that is checked when the console boots (i.e., starts up). The operating system itself
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`also contains Technological Measures designed to ensure the operating system is authorized. Only
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`if the operating system Technological Measures and the encrypted system signatures are confirmed
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`as authentic—thus proving the console and operating system are authorized by Nintendo—will the
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`Nintendo Switch start up normally.
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`47.
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`The console’s data as well as the game data—whether stored on the Nintendo
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`Switch’s built-in flash memory or on a removable flash memory card inserted into the console—
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`are also encrypted with a key unique to each Nintendo Switch console.
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`48. Moreover, when the Nintendo Switch attempts to connect with Nintendo’s servers
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`(which happens when a user attempts to play online, purchase games, or download updates), those
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`servers will check the console’s certificate. Users are able to access Nintendo’s online services
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`only if this check is successful. Nintendo also has the capability of banning specific consoles from
`
`COMPLAINT - 14
`
`
`
`
`
`G O R D O N
`T I L D E N
`T H O M A S
`C O R D E L L
`
`600 University Street
`Suite 2915
`Seattle, WA 98101
`206.467.6477
`
`

`

`Case 2:21-cv-00519 Document 1 Filed 04/16/21 Page 15 of 41
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`accessing Nintendo servers (to do things like download new games or software updates) should its
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`authentication measures detect unauthorized use.
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`49.
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`In addition to the Technological Measures related to the console and the operating
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`system, the Nintendo Switch also contains Technological Measures that verify each game played
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`on the Nintendo Switch (the “Game TPMs”). The Game TPMs employ encryption and signature
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`checks similar to that of the Ni