For major companies like Nintendo, tackling online piracy isn’t just about punishing individual infringers; it’s about strategic deterrence.

Filing lawsuits against casual gamers who may have made an isolated mistake is not a good look and could potentially backfire. Nintendo understands that and carefully picks its battles.

The case against Jesse Keighin, better known under his gaming handle “EveryGameGuru”, exemplifies this approach. Filed in a Colorado federal court last November, Nintendo’s complaint lists many alleged wrongdoings, including pre-release game streaming using pirated ROMs and distribution of circumvention tools.

Add in the public exposure through streaming platforms such as YouTube, Discord, and Twitch, and it’s not difficult to see why Nintendo singled out this defendant.

Absent and Undeterred Defendant

Facing a lawsuit from a multibillion-dollar company can be a frightening prospect. In this case, however, the defendant seemed undeterred, based on public messages that appeared online.

Instead of trying to avoid a legal disaster, Keighin apparently went on the offensive, with no sign of giving in. Quite the contrary.

“You might run a corporation. I run the streets,” Keighin wrote to Nintendo’s legal team at some point, warning that they should have done more research on him before taking action.

The defendant reportedly destroyed evidence and evaded Nintendo’s attempts to serve him personally. Due to these complications, the court eventually allowed service via email and the home addresses of his mother, grandmother, and partner.

When that didn’t yield a response in court either, the game giant requested an entry of default, so it could move the case forward without an official defense.

Nintendo Seeks Default Judgment

In a motion for default judgment, Nintendo explains that the defendant willfully streamed pirated copies of pre-release games to his followers. These streams were tagged as “EARLY RELEASE” or “FIRST LOOK,” but without authorization from Nintendo.

“At least fifty times in the last two years, Defendant streamed gameplay of pirated copies of at least ten different Nintendo games—all before those titles were released,” Nintendo writes.

“By streaming games prior to their publication, Defendant normalizes and encourages prerelease piracy, signaling to viewers that they too should pirate and play the game now, without waiting for its release or paying for it.”

Nintendo’s allegations

In addition to directly infringing the copyrights of games including “Mario & Luigi: Brothership”, the defendant also shared links to the Nintendo Switch emulators Ryujinx, Yuzu, Suyu, and Sudachi on social media. By doing so, Nintendo says he effectively trafficked in circumvention devices.

Nintendo also accuses Keighin of circumventing technical protection measures himself, in violation of the DMCA, as well as using hacked hardware to play pirated games.

“Defendant often used an emulator but also used a hacked Nintendo Switch, demonstrating that he decrypted and accessed without authorization the prerelease games he streamed,” Nintendo writes.

$17,500 and a Broad Injunction

The legal paperwork includes ten titles that the defendant allegedly infringed, willfully. In theory, this can lead to up to $1.5 million in statutory damages for copyright infringement alone, but the game company requests a substantially lower amount.

Here, Nintendo requests damages for only one of the ten games and says that $10,000 is an appropriate award. After ignoring previous warnings for close to two years, this should help deter future wrongdoings.

For circumvention of technological protection measures and trafficking in circumvention technology, the game giant requests damages of $5,000 and $2,500 respectively. This brings the total damages amount to $17,500.

In addition to the monetary damages, Nintendo also seeks a broad permanent injunction against Keighin, which would apply worldwide. If granted, this injunction will prohibit the defendant from any infringing activities going forward, including the use of emulators.

Nintendo’s proposed injunction (not granted yet)

These restrictions apply to existing emulators such as Yuzu or Ryujinx, but also those not yet named. Similarly, the injunction would apply to existing Nintendo games and games that do not yet exist. Meanwhile, all infringing hardware and software need to be destroyed.

The court has yet to grant Nintendo’s motion, but it’s notable that the company has not requested the maximum amount in compensation. Instead, it hopes to send a deterrent message to Keighin and other alleged pirates, to stop pirating and streaming Nintendo games.

Whether this strategy will pay off remains to be seen. Thus far, “EveryGameGuru” hasn’t been very receptive to Nintendo’s outreach. That said, this legal action also puts others on notice that Nintendo doesn’t appreciate pre-release streams or advertising of ‘rogue’ emulators.

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A copy of Nintendo’s motion for default judgment against Keighin, filed at the U.S. District Court for the District of Colorado last Friday, is available here (pdf)

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