Pirate told to pay Nintendo $1.5 million

By Ellie Gibson Published 9 February, 2010

For uploading New Super Mario Bros. Wii.

An Australian man convicted of videogame piracy has been ordered to pay Nintendo AU$1.5 million in compensation.

James Burt was accused of uploading New Super Mario Bros. Wii to the internet. According to Nintendo, "sophisticated technological forensics" were used to track him down as the source. A Federal Court search order was then obtained for Burt's home and the authorities seized some of his property.

"The legal proceeding resulted in a settlement in which the individual will pay to Nintendo the sum of $1.5 Million dollars by way of damages to compensate Nintendo for the loss of sales revenue caused by the individual's actions," the company said in a statement.

That's equivalent to nearly £840,000. Oof.

Picture of Ellie.

About Ellie Gibson

Since joining Eurogamer in the mid 2000s, Ellie has written about subjects as diverse as the fall of Gizmondo, the rise of Hollyoaks actresses in Red Alert games and the noise a bear makes under NSFW circumstances.

Read more articles from Ellie by visiting the Ellie Gibson archive page.

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Comments (114) Latest comment 2 years ago

Comments threads automatically close after 30 days, but please feel free to continue chatting on the forum!

  • jaxon58 #1 2 years ago

    £10 per week for 84,000 weeks? It's worth him asking.

  • DoctorZoidberg #2 2 years ago

    Serves him right.

    The only pirates I respect had big old beards and wooden legs.

  • MasterNameless #3 2 years ago

    That's an incredible fine for one man. Unless they continue this method en mass I fail to see a law case against a single induvidual putting off the hundreds of thousands, even millions, of pirates out there!

    Aussie games are nearly that much bought new anyway aren't they? Wouldn't be too much of a sting for him! ;)

    edit: typo
    Edited by 2 at 09/02/10 @ 09:36

  • CrunchinJelly #4 2 years ago

    For those interested:

    The guy bought the game legit, early, from a retailer in Australia. He then posted on the GBATemp.net forums that he had got the game early. Nobody believed him, so he uploaded a picture of his receipt, complete with all the store details. Oh, yeah, and he uploaded the game to some public website, as well.

    Needless to say, Nintendo followed up on it, gave the retailer a slap on the wrists, and proceeded legal dealings with this guy.

    Here's the post where he uploaded pics of the receipt.

    [link url=h ttp://gbatemp.net/index.php?s=23906e8ad41e56a2cbdca4d5e464d3 9a&showtopic=189802&st=345&p=2379735&#entry2379735
    ]http://gb atemp.net/index.php?s=23906e8ad...[/link]

    Stupid kid.
    Edited by 1 at 09/02/10 @ 09:37

  • onezeonx #5 2 years ago

    Surely of he has $1.5 mill to pay Nintendo then he can afford to buy a game!

  • Golgo #6 2 years ago

    Nice. Have some.

  • LHH #7 2 years ago

    "sophisticated technological forensics"

    lol love the phrasing on that

  • Weezer #8 2 years ago

    Ha ha! Splendid. I hope the little twat suffers horribly.

  • MasterNameless #9 2 years ago

    Haha. Love the anti-piracy site within the link above. Mainly because of the rather disgruntled looking Mario in the banner! :D

  • Meho #10 2 years ago

    Jeez, you guys. He's being asked to pay an arbitrary sum of money even if the actual damage made to the company was never proven. NSMB Wii sold over ten million copies so at 50 bucks a piece, this kind of sentence suggests another 30,000 people would have bought it if this guy hadn't uploaded the game. Which is unproven and pretty much unprovable. Until there is a serious study of how piracy actually affects game sales these kinds of sentences are little more than bullying and extortion.

  • MasterNameless #11 2 years ago

    If he was the first person to upload the game to the net, there would probably be a lot more than 30,000 people downloading it. Besides, there is plenty of proof found in the huge numbers of traffic that these torrents get, surely? Or do people just download the game and delete it straight away? I think not.

  • OneClassyBloke #12 2 years ago

    Oh dear, if only this <a href=http ://news.bbc.co.uk/1/hi/education/8499356.stm "">online safety cartoon </a href> existed for him, maybe he wouldn't owe 1.5 million now.
    Edited by 2 at 09/02/10 @ 09:58

  • mingster #13 2 years ago

    Yeah i agree Meho.
    Where do they pull these figures from?

    It's pure speculation they have no actual proof they lost 30K+ sales.

  • miiiguel #14 2 years ago

    Which is unproven and pretty much unprovable.
    I don't think it's unprovable, and I believe he's actually lucky that they considered 30K iliegal downloads, I believe it could/should have been considered a lot more.

  • Eldritch #15 2 years ago

    You can't hit pirates too hard. Bring it on.

  • swissorc #16 2 years ago

    Have to disagree regardless of the reason piracy is piracy theft of anothers property doesn't matter how much the fine or who it's directed at they get what they deserve.

  • asphaltcowboy #17 2 years ago

    If you got it early, why upload it for everyone else? Shirley it's much more fun to gloat and mock them?

  • dirk_aircool #18 2 years ago

    If federal court is like UK high court then the standard of proof is not ' beyond all reasonable doubt '. It serves the dunce right.
    And please dont call me shirley.
    Edited by 1 at 09/02/10 @ 10:05

  • PlugMonkey #19 2 years ago

    @ MasterNameless: But you have to prove that all the people who downloaded it would have bought it otherwise. I suspect most of them just wouldn't have bothered. The fine amount is completely arbitrary.

    It's a ridiculous fine, because he can't pay it anyway. They might as well say he owes Nintendo $674 trillion for all the difference it makes.

  • UncleLou #20 2 years ago

    this kind of sentence suggests another 30,000 people would have bought it if this guy hadn't uploaded the game. Which is unproven and pretty much unprovable

    Which is why it's fair to let the infringer carry that burden of proof, not the infringed party. Basic rule in IP worldwide, or you could never ever claim any damages whatsoever from patent, trademark or other IP infringements.
    Edited by 1 at 09/02/10 @ 10:08

  • makeamazing #21 2 years ago

    They have to try and send out a message, lets be honest piracy is having a major issue on the PC platform. The wii is getting hit very hard (previous figures were suggesting games like SMB had been pirated higher than the hundreds of thousands i think).. if they dont attempt to stop it then it will just continue.

    The kid got it coming, its just a shame that he wont be able to pay and so probably wont have any effect.

  • MasterNameless #22 2 years ago

    @PlugMonkey

    That's a very good point, yeah. It is probably why they settled on a figure of 30k too, as I imagine the figures were probably an awful lot higher than that!

    And yes, there wouldn't much point fining him more than that anyway, as it's difficult to see how the hell he could pay back such a huge amount of money.

    Edited by 2 at 09/02/10 @ 10:15

  • miiiguel #23 2 years ago

    Idk how it works in Au, but here if you can't afford to pay a fine the court issues a order to the company you work for and a cut from your wage is directed to pay the fine, each month, for years.

  • figgis #24 2 years ago

    Love all the idiots on here defending Nintendo fining someone £840,000 for file-sharing a game.

  • penhalion #25 2 years ago

    I love the "used sophisticated forensics"....er you mean the guy shopped himself online by bragging about uploading and then posting details of where he bought the game, what area he lived in and pretty much did all the legwork for Nintendo.

    I think the fine was a bit much though, I guess he's going to need to appeal just like every games dev does when a small outfit that they've ripped off tries to sue them.

  • miiiguel #26 2 years ago

    ^ that's what I say puke smells beter than poo, but I don't like either, soz.

  • dirk_aircool #27 2 years ago

    I don't see people defending Nintendo,they just put the evidence before a court, evidence provided by the ' Accused '.

  • NGCes26294BIV #28 2 years ago

    Whatever you think about piracy, a fine of $1.5 million is arbitrary and unreasonable. Like a previous poster has already stated, it may as well be trillions of dollars for all the years it will take to pay it off.

    Yes, the guy was wrong and should not have uploaded the game, but what in theory could be a single mistake is going to ruin his entire life. You could commit benefit/tax fraud and get less of a punishment (short custodial, perhaps, but no/limited fine).

    Piracy needs to be punished, but the punishments need to be sensible, measured and regulated.

  • Xerx3s #29 2 years ago

    "The only pirates I respect had big old beards and wooden legs. "

    Yes because pillaging, raping and murdering is so much morally superior than uploading a piece of software to the internet.

  • Sunyavadin #30 2 years ago

    Meho's right, marking down a reasonable argument is what I'd expect of Daily Mail readers, not EG.
    While it's fair to get him to pay them or it, $1.5 million is a number pulled right out of their arses. 60% is more realistic (The percentage of people who paid more than $1 for World of Goo on the 'pay what you want to' offer), anyone unwilling to pay a realistic price would be unlikely to buy the game. Next we assume that 20% (The sort of numbers publishers claim when having a go at retailers for "lost revenue";) are going to buy it preowned. So knock that off.
    This leaves us with $633600 (AU$722304) as a realistic estimate of what it cost nintendo. Adding a million on top of that is simply ridiculous, their legal costs can't have been anywhere near that much, and murderers have been ordered to pay less than $200,000 in damages - so even with boh those factors it shouldn't break the million mark...

    And as others have said, we need a proper study into this. I'd assume the same people at Cambridge who determined the optimum maximum length for copyright is 14 years would be all over this one.
    Edited by 1 at 09/02/10 @ 10:41

  • Xerx3s #31 2 years ago

    "Ha ha! Splendid. I hope the little twat suffers horribly. "

    He who is without sin, cast the first stone. I highly doubt that you will find many people on this planet (you included) that have never used a form of piracy in any way. Should I be screaming for your blood?

  • GamesConnoisseur #32 2 years ago

    I dont argue that we cannot prove the sales lost, as people would not buy it for any price but would download anything free. BUT piracy DO need to be tackled, sure on several approaches going on and not just the criminal proceedings.

    I dont believe just reducing prices would solve the world problem of piracy nor is pursuiting just one man for what is a global problem.

    WHAT we can do is individually takes our responsibility and decide how we would act, hypocritical but I limit myself to DS piracy and only for certain titles that I would not bought!

    All else is bought for inc Spirit Track, and 40 other DS titles.

    Shifting responsibility wont do, blaming publishers or others as they are an easy tagets.

  • superted1974 #33 2 years ago

    @NGS

    It won't ruin his life. If he doesn't have the cash (and who would) he goes bankrupt and starts again owing nothing but with a poor credit rating.

    If you can't do the time (fine) don't do the crime (or civil offence)

  • MasterNameless #34 2 years ago

    ""The only pirates I respect had big old beards and wooden legs. "

    Yes because pillaging, raping and murdering is so much morally superior than uploading a piece of software to the internet."

    Bloody hell, I think that was meant to be a joke, lighten the hell up. Besides, you're describing actual pirates. DoctorZoidberg was describing Pirates of the Caribbean/Monkey Island-type pirates. Believe it or not, there is quite a substantial difference - if you want to get all serious.
    Edited by 1 at 09/02/10 @ 10:54

  • ianegg #35 2 years ago

    Eldritch "You can't hit pirates too hard. Bring it on."

    Fuck yeah, lets hunt down and murder GamesConnoisseur and his entire extended family right now.

    "I limit myself to DS piracy and only for certain titles that I would not bought!"

  • NGCes26294BIV #36 2 years ago

    @superted1974

    Actually, no. That's not how it works.

    The government will ensure that a fixed sum (in %, I believe) will be removed from every pay packet he ever receives, until (and IF ever) the fine is cleared.

    Also, your last comment defines exactly WHY this issue needs to be discussed, formally. There is no set 'time' or punishment for commiting piracy. Fines have ranged from $300 to $30m, with no real basis for comparison.

    What often happens is that the licensees will charge a fairly small fee for piracy offences ($000's), but if the accused refuses they are taken to court and fined an astonomical amount. Here's an example case: http://ww w.foxnews.com/story/0,2933,5272... - they offered to settle for $3-5000, but when she refused it went to court and she now owes $1.9 million.

  • Sunyavadin #37 2 years ago

    Also - in spite of my call for rationality - I do think he's an absolute idiot. For shopping himself (Sorry, allowing "sophisticated electronic forensics" experts to see a "digital optical capture" he "electronically transmitted" to a "complex database of text uploads"...)

  • FooAtari #38 2 years ago

    Jesus christ. At the end of the day all he did was made some software available

    You get less fines and punishments for causing accidents while drink driving or assaulting someone...

    It's all a bit backwards.
    Edited by 1 at 09/02/10 @ 11:10

  • UncleLou #39 2 years ago

    Jesus christ. At the end of the day all he did was made some software available

    I've seen lesser fines for people causing accidents while drink driving or assaulting someone...

    It's all a bit backwards.

    Definitely. The sum is ridiculous, and no private person with no intention to gain profit from the infringement should be fined to such a degree. In my post above, I was defending the general mechanics of the burden of proof in IP and the "virtual" damages, not the specifics of this case.

  • teabagger #40 2 years ago

    While I'm not massively sympathetic the fine does seem arbitrarily large.

  • Murton #41 2 years ago

    Genuine study is needed into the effects of piracy on sales. Take the anti-piracy bill that the UK is seeing forced through, that would see pirates potentially fined £50,000 per file shared, uploaded or downloaded. You could walk into HMV and steal a cd album (ten tracks) and get a fine a couple of hundred quid, or you could download the album and end up with a fine of half a million, it's madness.

  • ps3owner #42 2 years ago

    what happens if he declares himself bankrupt?! wouldn't that solve the problem

  • Shikasama #43 2 years ago

    You can get drunk, get in a car and speed down the road at 90 mph and get a lot less than that.

    At least they don't cause large corporations to lose some money though eh? Worst they might do is kill someone, which is cheap.

    But yeah, all the self righteous people in the thread (grawr, I'm cool because I hate piracy) are right, THIS guy is the problem.

  • Golgo #44 2 years ago

    If the sum is as accurate as possible a reflection of lost earnings, then it is not as ridiculous as people are bleating.
    Irrelevant whether it's "first offence, just one bloke, a silly mistake", etc.

  • Mono_X #45 2 years ago

    The article says 'The legal proceeding resulted in a settlement', this seems to imply that the case was settled out of court and never went to court and the pirate was never actually prosecuted.
    What probably happened is that Nintendo actually threatened to sue the pirate for a lot more than $1.5 million and it looks like the pirate decided to accept liability at a lesser amount. I wonder what would have happened if the case had gone ahead, I suspect the fine (if successfully prosecuted) would have been a lot less.

    Whilst I have no sympathy for the pirate, the fine is too high.
    And this kind of tactic can prove very risky for corporations. If they use it too often it can backfire like it did when the American record companies they tried taking individuals to court for piracy.

  • FooAtari #46 2 years ago

    @Golgo

    It is ridiculous. I consider assaulting someone or getting in a car drunk and putting the lives of others in danger infinity worse than file sharing... Yet the punishment for file sharing is far worse.

  • Der_tolle_Emil #47 2 years ago

    The sum may be a bit much but I have no doubt that uploading a game (especially such a huge title) a week before it was released may easily be the cause for 30k less sales. However, that's not really the point.

    At least this is a clear-cut case. It's not a company suing someone because they think someone downloaded something using a bittorrent client. It's not some other case where someone chipped his console and also burned a few discs for his friend. He may not be a "big time pirate" but the stupidity of boasting on an internet forum and uploading a game not yet released is obviously something he should not have done. Nintendo's claim is ten times more valid than so many other lawsuits from companies that dragged people to court with nothing but a few torrent logs to get people to settle out of court.

  • RobotRocker #48 2 years ago

    Relax. The guy is a sheer incompetent idiot and moron for uploading it but he wont be paying that much. Nintendo will probably bring it down to around $50,000-$100,000 quietly when the press dies down since they want to make a statement of "Dont pirate our product or face the consequences" in the press but don't want the bad publicity of ruining a persons life over an idiotic mistake since the RIAA and MPAA have had a really rough ride in the press over it once its dragged out. See RIAA Vs Rassett for example.

    As for a study. It would be great but the dickheads running ELSPA would freak if there ever was one as it would show that the rate of piracy is either very low or it will show how game pricing effects low income families who turn to pirated software. I have recently seen market stalls offering R4 cards with DS games pre-loaded on them and most families would rather pick one up for the same price as one or two DS games, particularly as the downturn is really going to effect the working class and money for entertainment goods will be quite tight. This of course ruining the entire "OMG PIRATES ARE FUNDING PEDOS AND TERRORISTS AND ONLY CRIMINALS BUY PIRATED GAMES BECAUSE THEY WANT TO PIRATE" moral panic ELSPA tries to induce every time this comes about to try dodge the question of "Are games too expensive?"

  • Caimbeul #49 2 years ago

    "Serves him right.

    The only pirates I respect had big old beards and wooden legs. "

    - You mean the ones that used to go round robbing, raping and pillaging innocent people?

  • Caimbeul #50 2 years ago

    "sophisticated technological forensics" - You mean they looked at the receipt, saw the transaction reference and collered him from that?

  • MasterNameless #51 2 years ago

    Wow, some people are so uptight, they can't see a light-hearted joke when it stares them in the face.

  • Darren #52 2 years ago

    Good riddance I say. Well done, Nintendo!

  • IneptPercy #53 2 years ago

    I can see the idea here, if being the first to share a game could ruin your life would you do it?

    You can't go after each individual for downloads, but if you can stop the torrent ever getting out then how can they download it?

  • Petulant_Radish #54 2 years ago

    "You can't hit pirates too hard"

    You probably can, depending on what you hit them with, for a foam hand this would probably be true (unless you poked them in the eye, but then I suppose the ey patch would come in handy) but if you hit them with a JCB bulldozer you probably could hit them too hard as they would most probably be dead.

  • BartonFink #55 2 years ago

    LOL pirating scum - Go Nintendo

  • ignatiusjreilly #56 2 years ago

    The trouble is, these rulings are all about making an example of someone. There is no other way to explain a larger fine for filesharing than things like drink-driving or possesion of child pornography.

    The question is, should justice be about making examples of people? My view is that if justice is blind, there should be no room for special treatment.

  • DoctorZoidberg #57 2 years ago

    - You mean the ones that used to go round robbing, raping and pillaging innocent people?

    Yes, those ones.

    They knew how to live... Rum, sex, stealing, gold, trips to sunny islands, beards, parrots, interesting accents, they had the lot.

  • Korpers #58 2 years ago

    Couldnt he have at least uploaded something decent?

  • MasterNameless #59 2 years ago

    Drink driving et al are properly enforced crimes, with a clear and well established deterrent in place. If you do commit a similar serious crime, the chances of getting caught is a lot higher than getting caught for piracy/copyright infringement and the prosecution will almost always follow as there are such clearly defined methods of obtaining the necessary proof.

    There are so many grey areas and legal loop-holes with piracy/file sharing that making an example of such people is probably their best option. I only mean for cases such as this, where someone uploads one of the first copies of the game, opening the floodgates for thousands upon thousand of people to download it. It is incredibly harsh, and less justifiable, for a game/record company to sue people for such huge amounts for downloading just one game, and therefore depriving the copyright-holding company of a single sale - like in the case someone posted a link for on the last page where a woman got fined $80,000 for each of the 24 songs she downloaded.

    edit: Not that I'm defending corporate big-wigs, god no, the fact I nearly was does leave a bad taste in my mouth! If anything, I'd like to think I'm defending stuggling developers, which Nintendo are not, but hey. I was mainly making the point that compared to serious crimes, it is very difficult to fight piracy due to all the legal grey areas and loop-holes and got a bit carried away. :D
    Edited by 2 at 09/02/10 @ 14:10

  • sneetch #60 2 years ago

    @MasterNameless
    Drink driving et al are properly enforced crimes, with a clear and well established deterrent in place.

    Also, if your drink driving in fact caused/allowed 30,000 other people to drink drive you might expect a harsher penalty. If your assault caused/allowed 30,000 other people to commit assault then you might expect a harsher penalty. People don't seem to realise the scale of these crimes. It's like rolling a snowball down a mountain and being surprised when you're arrested for causing an avalanche, "but it was only a snowball!"

  • geeza2020 #61 2 years ago

    "Itsa meea, Mario! Copy my gamesa and youra ass isa mine!!!"

    Welcome to the capitalist world people, we have disney, McDonalds, Coca Cola, and where a persons life is worth less than a pirated video game. Sweet dreams....

  • ignatiusjreilly #62 2 years ago

    Actually I'd be pretty pissed off if I got arrested for rolling a snowball down a mountain...

    Drink driving et al are properly enforced crimes, with a clear and well established deterrent in place.

    That's why no one's complaining about those. Piracy is nowhere near a "properly-enforced" crime - it seems it's enforced arbitrarily or even randomly, and people in general have no idea what the punishment might be (or sometimes even if what they're doing is a crime).

    Plucking people at random and fining them more than they might earn in their lifetime to scare others is not a fair way to go about combating the problem - and when you are talking about justice and the law, fairness should be pretty high up on your list of considerations.
    Edited by 1 at 09/02/10 @ 14:27

  • Goodfella #63 2 years ago

    How about Nintendo pay me $1.5m for making me buy a Wii under the pretence that it's a games console.

  • Lee_Morris #64 2 years ago

    Don't break the law and you won't get busted. Simples

  • FooAtari #65 2 years ago

    @BartonFink

    And of course you have never pirated in your life. Never downloaded or copied a single song, peice of software or any other copyrighted media ever...

  • RobotRocker #66 2 years ago

    @ MasterNameless

    Nah, its a great summary. I think its also valid to point out that this kid will never ever pay off that money and Nintendo will probably consider the damages settled if he pays off even a tenth of that (Possibly less if he is lucky while keeping his mouth shut and his hands clean). The debt hanging over the head of a person and following them through their career is enough of a deterrent already. Nintendo just needs to hope that this guy does not become a martyr for the piracy cause because this is pretty high profile.

    Its a pretty big deterrent since its so public that its going to be hard for the guy to get a job.
    Edited by 2 at 09/02/10 @ 14:47

  • Joco84 #67 2 years ago

    Do I make the cheque out to Mr. Miyamoto?

  • Murton #68 2 years ago

    @ rustynuts: my point is that the law in the UK doesn't differentiate between the act of making copyrighted works available and merely downloading copyrighted works. You could download something, without uploading a single byte of information in return and in the eyes of the law you're equal to the person who made it available in the first place when in reality you're more comparable to the guy who pilfered the same album from HMV.

    It's about making the penalty proportional to the crime, and in the case of piracy, of anything be it games, music or movies, it just isn't, and it seems to be getting worse, which is why proper study is needed to determine what effect, if any, piracy actually has on sales. Only then can lawmakers make a properly informed decision on what is needed from anti-piracy law and what penalty would be correctly proportionate.

  • MasterNameless #69 2 years ago

    @ignatiusjreilly

    People weren't complaining about those no, but they were comparing the two. I was just stating the difference between them - I shouldn't have needed to though, no. It's no surprise, lots of people on this site are very good at comparing apples to oranges. :)

    Other good points there too (and funny ones!). I agree that this is more of a deterrent, as it's all they really can do at the moment, and for the unforseeable future too. The snowball argument is also a very good one, which quite clearly differentiates this from the drink driving comparison some people foolishly made.

    Too much serious talk now, beginning to bore myself. Can't think of a good enough joke to balance it out so I'm just going to go with...

    CABBAGES!

    For no particular reason.
    Edited by 1 at 09/02/10 @ 16:11

  • laharl80 #70 2 years ago

    Its probably already been said but i'll say it anyway.....arrrghhh.

  • Bloobat #71 2 years ago

    it will take him forever to pay for it!

    what a prick anyway, pirating just stops devs from making more games as they don't get enough sales as people torrent the games!

  • RexRunti #72 2 years ago

    Most people here can't see the difference between uploading a game and downloading it. If I download a game it's like walking into a market and finding someone giving away free, but illegal copies of SMB and taking one home. I knew it was illegal at the time and if Nintendo have a go I cost them £50. If however I'm the guy giving away the free copies of the game and Nintendo have a sue I cost them £50 times however many versions I gave away.

    Also, yes drink driving is a serious offence and the fine is a lot less. What if the person drink driving crashes his car into Ferrari garage, the fine for drink driving would remain but would also be sued by the owner of the garage to pay for all their "loss of earnings".

  • Collymilad #73 2 years ago

    I love all the people saying "Damn pirates, serves em right blah blah blah blah"

    It's pathetic. They are going to ruin someones life for uploading a game. That's the reality of the situation. As others have said it's a hell of a lot more of a consequence than for many more henious crimes. But then it's all about the money, eh?

    I don't entirely agree with piracy, I myself don't do it (at least for games, but the value for money of other media is debatable in my opinion) but the people who fail to realise the connection between how much money people may lose and the harshness of the punishment are incredibly stupid. It's not exactly the fact the guys being punished that I disagree with, it's vigour with which companies/people go after others when it involves their cash pile growing at a slower rate.

  • Sunyavadin #74 2 years ago

    Most people here can't see the difference between uploading a game and downloading it. If I download a game it's like walking into a market and finding someone giving away free, but illegal copies of SMB and taking one home. I knew it was illegal at the time and if Nintendo have a go I cost them £50. If however I'm the guy giving away the free copies of the game and Nintendo have a sue I cost them £50 times however many versions I gave away.

    However the attitude seems to be to sue the downloaders they catch based on the full value of the game AND sue the uploaders they catch. Essentially making double the profit those "lost" sales could potentially have made. This is why we need sensible valuations on this kind of thing, and well laid out punishments in place.

  • Murton #75 2 years ago

    RexRunti: +1 for sense, it's good to see that someone understands the difference between downloading and uploading.

    Also the "developer loses money" argument doesn't wash. Developers get paid by their publishers throughout and upon completion of the project, and the publisher sells to the retailers so it could be argued that piracy is hitting retailers first and foremost and then being passed back from there. Piracy means less sales at retail which means second orders are lower which means publisher sells less overall, any effect on developer houses is dependent on the terms of their contract with the publisher, which is something that we simply have no details on.

  • Freek #76 2 years ago

    Even if 30.000 people downloaded the game, that does not mean they lost 30.000 sales. Because downloading is free and easy it means people will download pretty much anything, even if they never intended to buy it in the first place.
    That doesn't exuse piracy in anyway, lets be clear about it. The point is, the way media companies are fighting piracy: by slapping arbitrary sums of money on individuals, is excesive and won't stop piracy.

    It's a sad state of afairs in wich neither party can claim the moral high ground.

  • Dave797 #77 2 years ago

    Or this has nothing to do with the potential loss of sales and Nintendo are simply sending a message to other "pirates" by using this fellow as an example? They've obviously got the evidence on this guy locked down which is pretty hard to do considering the amount of pirate copies of games there are these days.

    He's the unlucky example but thats life, if you can't do the time don't do the crime.

  • FooAtari #78 2 years ago

    @Collimilad
    "I don't entirely agree with piracy, I myself don't do it (at least for games, but the value for money of other media is debatable in my opinion)"

    What the hell. You don't entirely agree with piracy, but do it anyway?!? Weather you see the worth of a type of media is irrelevant. If you download something that you should be paying for you are stealing it,pirating it or whatever. At least be man enough to admit you don't mind pirating. You can't take the moral high ground for games, when you are happy to pirate music or movies.

    I don't pirate any PC games any less than 3 or so years old, I also don't download 360 games as it's more hassle than it's worth and I don't pirate PC software, preferring to use open source. But I have download older PC games (usually if not available via digital distribution) and I have downloaded music and movies. However I don't try and differentiate between them, it's all equally wrong and it's all stealing at the end of the day. Personally I don't loose any sleep over anything I download as I buy just as much music/movies/games etc.
    Edited by 1 at 09/02/10 @ 18:17

  • Boomerang #79 2 years ago

    Games not being 40-50 fucking quid will help stop piracy.

  • Freek #80 2 years ago

    Arbitrary fines and excesive punishments as a means to make "examples" out of people don't fitt in with the kind justice the legal system should uphold and does not help in stopping piracy either.

  • smelly #81 2 years ago

    HAHAHAHAHA!!! Take that your durty pirate!

  • smelly #82 2 years ago

    >Games not being 40-50 fucking quid will help stop piracy.

    Iphone games are roughly usually between $1 and $2. Piracy is still a huge problem on the iphone. Read a story recently where a popular game - 80% of the people posting scores on the high score table had pirated it.. It cost $1 to buy.

    So that argument is bull too

  • Nithron #83 2 years ago

    The reasons for piracy are different across different people. Lowering the price would stop some people doing it; some people would do it anyway. It's impossible to generalise and also, unfortunately, impossible to tell which proportion would start buying, were the prices lowered.

  • Boomerang #84 2 years ago

    > So that argument is bull too

    Games being cheaper would help ME buy more games. So not strictly bull.

  • regularjoe #85 2 years ago

    "The legal proceeding resulted in a settlement in which the individual will pay to Nintendo the sum of $1.5 Million dollars by way of damages to compensate Nintendo for the loss of sales revenue caused by the individual's actions"

    A settlement, in ordinary legal usage, happens when parties agree the amount of damages amongst themselves - it is not a unilateral judicial imposition of damages. So, unless the Nintendo guys were using the word "settlement" wrongly in contect (rather than, say, "judgment" or "judicial order";), this would appear to be a very rich pirate indeed!
    Edited by 2 at 09/02/10 @ 20:47

  • alcides #86 2 years ago

    Piracy hasn't stopped Mario from topping the charts. Or Modern Warfare. Piracy: not an issue!!! You cannot compete for a market that doesn't exist, to which dosh-value doesn't apply. Piracy is a shadow market. Having your game spamming the torrent charts and p2p bandwith offers less visibility to other titles. It helps the IP grow stronger.

  • RobotRocker #87 2 years ago

    So that argument is bull too

    Oh ho ho! Wait a moment there cowboy. Before you start spouting that off. Go read this rather excellent report by the Rev.Stuart Cambell regarding iPhone piracy figures

    [link url=http://wosblog.wordpress.com/2010/ 01/15/the-most-spurious-piracy-figures-ever/
    ]http://wo sblog.wordpress.com/2010/01/15/...[/link]

    Now, please. Again from the top.

  • smelly #88 2 years ago

    @RobotRocker : See the mistake youve done there is to link to anything that moron who probably still lives with his mum has to say.. Especially on the topic of piracy.

    I'm not even going to follow that link and give him a hit.

  • stan_dman #89 2 years ago

    Nintendo would be wiser to target the sellers of the equipment that allows people to run these copied games.

  • smelly #90 2 years ago

    @stan_dman : They already are.

    Only a complete fool would argue that someone releasing a game to the internet before it was released in shops was somehow in the "right" though. But judging by the negatives im getting, a lot of pirates on here disagree with that.

  • Rev.StuartCampbell #91 2 years ago

    Pretty much everything about this story is bullshit. A less wishy-washily vague version can be found here:

    [link url=http://www.theaustralian.com.au/australian-it/queensland- nintendo-pirate-cops-15m-fine/story-e6frgakx-1225828399238
    ]    http://ww w.theaustralian.com.au/australi...[/link]

    It appears to confirm that this was an out-of-court settlement, rather than a legal judgement. It also notes that the offender is a 24-year-old Electronics Boutique store manager who's worked for them since he was 18, so I think it's a pretty safe bet that he doesn't have $1.5m. So why would he agree to a settlement he obviously can't afford to pay?

    Presumably, because this way he won't have a criminal record, and can't go to prison for defaulting on the fine, since it isn't a fine at all. Nintendo won't get their money, but they do get a big scary headline to try to deter other pirates with. And the perpetrator suffers, at worst, bankruptcy proceedings and a fucked-up credit rating for a while. (My money's on Nintendo not bothering to chase him for the actual money at all, and indeed that perhaps being part of the "settlement". They've got what they want.)

  • alcides #92 2 years ago

    they should club themselves then, as there is no equipment needed on wii.

  • smelly #93 2 years ago

    Oh look .. campbell siding with the pirate.. there's a surprise.

  • RobotRocker #94 2 years ago

    Nintendo, with beautiful tenacity and timing also followed this report up with some goomba stomping of their own customers

    "Nintendo Australia is always pushing for games to be released here at the same time as the rest of the world, so we were pleased to get New Super Mario Bros. Wii before anyone else," explains Nintendo of Australia. "Unfortunately, due to to the actions of this individual, future release dates may be affected for Australia, which is disappointing for us."

    Source: [link url=http://au.ga mespot.com/news/6249964.html
    ]http://au.ga mespot.com/news/6249964.html
    [/link]

    Remember kids, publishers hate you to death, they only like your cash.

  • charming_fox #95 2 years ago

    AU$1.5 million is coincidentally what the next installment of COD will RRP for! (WINK!)

  • FooAtari #96 2 years ago

    @smelly
    "Only a complete fool would argue that someone releasing a game to the internet before it was released in shops was somehow in the "right" though. But judging by the negatives im getting, a lot of pirates on here disagree with that.

    The guy was in the wrong releasing the game online. I don't disagree with that. However the punishment does not fit the crime.

    And I'm pretty confidant you should probably be stepping off that high horse. You can honestly tell me you have never copied or downloaded a single peice of media or software?

    And finally piracy is a problem, and it's wrong. But there is a HUGE amount crap statistics released by anti-piracy groups/companies or whoever, just as much bullshit as you will see from those who are pro-piracy. There is very little truth or facts that come from either side of the fence. Stuart Cambells article linked to above does a pretty good job of proving that, you should have a read, it's pretty fair and hard to argue with.
    Edited by 2 at 09/02/10 @ 23:00

  • smelly #97 2 years ago

    Have you ever gone over the speed limit in your car? Do you agree though that people who are caught speeding should be punished?

    But to answer your question - no i have never uploaded a game pre-release onto the internet for everyone to download before it's available to buy in the shops. Nor have i ever downloaded a pirated game, if i want to play something i pay for it.. same as everything else i buy. Although i do admit to copying the odd spectrum cassette tape when i was younger and too young to know better.

    And I DO still find it ironic that campbell - who makes his money from writing copyrighted material about videogames is the person who defends piracy so much. I wonder how he'd feel if someone pirated his work?

    And I do admit to be really struggling here not to resort to infantile insults by typing "camp bell-end".

    Edited by 1 at 09/02/10 @ 23:05

  • alcides #98 2 years ago

    @RobotRocker

    Ha ha^^! According to their non-idiotic logic, then, paying customers should be punished because non paying customers pirate their games. Such empty threats, even if THAT ONE guy did pay, and see what he did with it... But witholding their product... how is that going to let them cash-in more efficiently? Eyebrows from down under raise right up to Japan. This mommy-kiddo act is ludicrous.

    I meand, Aussies and their advanced machines that mysteriously rip data off shiny disks. Surely that can be found nowhere else!

  • smelly #99 2 years ago

    As for the fine being too high.. it totally depends on how many people downloaded it from him doesnt it?

    For example - 25,000 downloads from people who wanted to play the game before it hit the shops.. They were obviously desperate to play it to be downloading it early.. so if they were that desperate then a good majority of them wouldve bought it if it wasnt available online... times that by $40.. that's $1million there.

    This is where you respond with "but piracy isnt a lost sale" and "games are too expensive" (while ignoring how much time/money goes into making one).. To which you can retort something witty like "it was mario, all they did was change the sprites" or something.

  • FooAtari #100 2 years ago

    @smelly
    I have ever sped in a car? Yes. On my bike? Even more so (although only on the open road).
    Do I agree I should be punished if I get caught? Yes. My own stupid fault for getting caught.

    But even if I was caught doing 90 through a 30 while drunk, with kids running across the street I would not be fined 1.5 mil. And thats my point. Uploading a game does not come close to extreme reckless driving but the punishment is far worse.

    As for your copyright infringement, what about movies and music? Never copied or downloaded a single thing? Downloading is just isn't much better than uploading at the end of the day.

    Anyway, I guess it's all a bit pointless, this fine would never be upheld if taken to court as anyone who has followed the Jammie Thomas case in the US should know.

    As as I said most things written on the net about piracy are load of bollocks one way or another. Very little of it is factual. Regardless of what side of the fence your on surely we all want to read the truth about it, through proper reporting (not done here) to proper studies and factual figures. This case is more about getting a headline than anything else.

  • FooAtari #101 2 years ago

    @smelly
    As for the fine being too high.. it totally depends on how many people downloaded it from him doesnt it?

    For example - 25,000 downloads from people who wanted to play the game before it hit the shops.. They were obviously desperate to play it to be downloading it early.. so if they were that desperate then a good majority of them wouldve bought it if it wasnt available online... times that by $40.. that's $1million there.

    This is where you respond with "but piracy isnt a lost sale" and "games are too expensive" (while ignoring how much time/money goes into making one).. To which you can retort something witty like "it was mario, all they did was change the sprites" or something.

    To me, no it doesn't matter much how much people downloaded it. You are right, one download does not equal one lost sale, how much time and money went into the game has no relevance on that fact. Many people download something because it's free,and will try anything when there is no cost attached. Sure there is some lost sales there but who knows what the percentages are. But it doesn't really matter. I don't care if 100 million people downloaded the game, there are worse crimes that people physically inflict on one another yet carry a lighter penalty. Making a bunch of 1's and 0's available on the internet doesn't really compare. However I am not saying he shouldn't punished, just that the punishment should be relative.

    However I'm kind of arguing pointlessly here. This seems to have been an out of court settlement by all accounts. If taken further the fine probably would not hold up.

  • trip919 #102 2 years ago

    Harsh methinks.

    /looks at all of my illegal gear with anxiety

    *ONLY JOKING FFS DO NOT REPORT ME*

    /terrified of Nintendo (never thought I’d say that)

  • smelly #103 2 years ago

    "Many people download something because it's free,and will try anything when there is no cost attached. "

    So if you punish the people uploading, then there wont be copies available for free... So if they WANT to play the game, they'll have to buy it (not all of them will.. but there will still be a percentage of them who would - therefor lost sales).

    It's especially disgusting to release a copy before it's even hit the shops imho.

    Someone downloading a single copy has only gotten 1 thing he should've paid for, for free. Someone uploading something had just given away something for free to hundreds/thousands/millions of people - some of whome wouldve been potential customers if they couldnt get it for free.

  • smelly #104 2 years ago

    oh - and how much time it takes to make a game is HUGELY relevant.

    Do you think companies invest millions of dollars into making a game for FUN? If no-one bought said game and everyone downloaded it, why would that company bother to keep making games? You pirates are only damaging the hobby you love so much.

    I find it especially ironic (moronic?) when you see console fanboys defending the machines but then pirating the software... makes no sense to me. But then im a fan of nintendo games - so they always get my money.
    Edited by 1 at 09/02/10 @ 23:39

  • Spekingur #105 2 years ago

    Funny how for actual theft you are fined alot less than this stupifyingly large amount of money. And that's REALLY removing a physical copy away from being sold. Whereas a digital 'theft' (piracy, or rather breaking distribution laws) is all about removing a proposed value of product away from the publisher and/or creator of said product.

    Also, yes, it is always "good" to blame digital-pirates for all what is wrong rather than have a look at how the business itself is broken. Which it is. They need to move on with the times.

  • smelly #106 2 years ago

    @Spekingur : If i steal a game - the company has lost $40 off of me *

    If i give copies of the game away for everyone to download instead of buying that's $40 they've lost off everyone who downloaded it for free. A much much bigger number.


    Now at that point a pirate scumbucket will come back and say "aaaah, but the pirated copies arent necessarily lost sales are they?", to which i take you back to my first point marked with a *. Now maybe i couldnt afford said game, and therefor me stealing it from the shop shelf isnt a lost sale, as i would've never have bought it anyhow. That means that they've only really lost money on the box and the disc - which probably only comes to 20p that i've stolen.

    HOWEVER what i've REALLY stolen in BOTH cases is peoples time.

    If I refuse to pay someone who has given me a massage, i've not stolen anything physically from them - only the 1 hour of their time - which i'm sure you'd agree is wrong. For example, how would you feel after a weeks work that your boss refuses to pay you? He hasnt stolen anything from you, except his promise to pay you and subsequently your time.

    By pirating or stealing a game you're stealing the thousands of man hours it took to make that game. You're not stealing any physical item (Something pirates like to use to justify their behaviour), but your are stealing from the people who made the game.

    As games players you're in effect the bosses of the games developers working on their stuff for you to use. By pirating (or stealing) the game you're using the benefit of their work - but not paying them for it. Basically your the evil boss who refuses to pay his employees for the work done.

  • smelly #107 2 years ago

    But yet i know i seem to be in the minority on this matter - looking at the number of negatives im getting.

    So that means that some of you game "fans" (many of you will take great offense if i slagged off your favourite game) would have no problems copying said favourite game (Which is a much bigger insult to the game makers than someone on a forum saying it's shit)

    .. I cant be a arsed to say much more on the topic.. i'll just leave you with my last post to ponder.

  • SG #108 2 years ago

    NGCes26294BIV
    09/02/10 @ 10:29

    Whatever you think about piracy, a fine of $1.5 million is arbitrary and unreasonable. Like a previous poster has already stated, it may as well be trillions of dollars for all the years it will take to pay it off.

    Yes, the guy was wrong and should not have uploaded the game, but what in theory could be a single mistake is going to ruin his entire life. You could commit benefit/tax fraud and get less of a punishment (short custodial, perhaps, but no/limited fine).

    Piracy needs to be punished, but the punishments need to be sensible, measured and regulated.

    Post respect.
    Edited by 1 at 10/02/10 @ 03:25

  • Spekingur #109 2 years ago

    Yet, smelly, it is not about theft. It's about distribution. It is about control.
    Publishers and media just cover it up as theft.

    I am not arguing about weither it (piracy) is right or wrong.
    I am arguing about the concept that it is about theft - and loss of sales. Market is decided about how you control a product. When it is released, the price, the amount, etc. This is what publishers control, the distribution. They have gotten so good at it that publishers have developed into product making companies themselves rather than just being the in-between-guy for consumer and creator.

    And publishers do not like the big evil thing that is 'the internet' - because they cannot control it.

    We all know (or should know) how the game industry works nowadays. Publisher invests in a developement of a game. Developer gets paid. Publishers gets the game, publishes and hopes to get their investment's worth in sales of said game. Even if the game sells more than they put out for developement, most of the time the developers themselves don't get any of that amount (depends on contract).

    So there is piracy that makes publishers cry out for blood? So the publishers refuse to move with times and the games industry business model is stagnant? So the developers don't get properly rewarded when their game does good and fired if does bad (by publishers that also push for release dates even when something isn't ready)?
    Life isn't fair.

  • 3william56 #110 2 years ago

    The "you've download so you're a hypocrite" argument does not hold water. Like most folks in this day and age, I've got a few naughty things (music and a couple of movies) sitting around my HDD from things I couldn't get legally/was too hard or folk sent. Mea culpa - I'm not perfect. But if Warners or whoever came looking, the lost revenue would come to a hundred quid at most. There's no Kazaa or bittorrent on my Mac.

    The "poor boy can't afford it" is sh*t too. Is it OK for some povo student to total your new car, and then cry poor because he can't afford to pay you for it? Rubbish. You do the damage, and you pay the cost. Simple. The fact that there's no *exact* method of determining the cost doesn't matter - the court decides based on submissions from both sides - it's what courts do.

    There's a huge difference between downloading a single file and uploading for distribution to thousands. This idiot (who actually makes his living from selling games and would actually feel piracy in his hip pocket from lost EB Games revenue via his wages - real genius) didn't post a pic of the game to impress his mates he had it first, or a sample of code, he ripped and posted the entire game - not a minor undertaking. He knew what he was doing, knew the penalties, and so the idiot got what was coming to him.

    Compared to the iinet case, at least Ninty did the right thing and did the hard yards to go after the tw@t who nicked their stuff. The music industry would have tried to shut down his entire ISP or demanded global filtering. At least Aussie courts have made the process straightforward. Crims steal, you have to chase the crims like any other crime, but with decent proof you can nail them. Fair enough IMHO.

  • Charlie_Miso #111 2 years ago

    Fucking Queenslander, what do you expect from these people?

    Glad he's getting fucked over.

  • Rev.StuartCampbell #112 2 years ago

    "The fact that there's no *exact* method of determining the cost doesn't matter - the court decides based on submissions from both sides - it's what courts do."

    Ah, the classic "weigh in with a bunch of ignorant crap without bothering to read anything else in the thread" post. Love it.

    1. The court didn't decide anything. It was a settlement, not a judgement.

    2. There isn't even a *wildly vague and inaccurate* method of determining the cost, never mind an exact one. The figure of 30,000 lost sales is, to use the technical legal term, a completely random number pulled out of someone's arse, same as most figures quoted about the "damage" done by piracy.

    (Damage, incidentally, which has currently restricted New SMB Wii to a pathetic 11 million sales at £40 a pop of an eight-level 2D platform game. I expect poor Nintendo will file for bankruptcy tomorrow, assuming they can climb over all the piles of money to get out of their front door and down to the court.)

  • FooAtari #113 2 years ago

    @smelly
    "Do you think companies invest millions of dollars into making a game for FUN? If no-one bought said game and everyone downloaded it, why would that company bother to keep making games? You pirates are only damaging the hobby you love so much."

    You completely missed my point. How about you try reading what I'm actually saying, not what you want me to say... OK, before I go any further Just re-read the post, it was actually me that misread what you said, and therefor put that part of my post out of context (I was referring who the cost of manufacturer did not matter when discussing weather one download equaled one lost sale).

    You are right of course it does matter how much it costs to make games. Thats why I have bought and own the vast majority of my games. I have never uploaded a game to the intneret, never downloaded a console game of the last two generations (and only from other generations when they well and truely off the market), very rarely downloaded a PC game any less than 3 - 5 years old. I am not a rampant games pirate, if I don't want to pay for a game 99.9% of the time I don't play it. I can think of two exceptions here, Crysis: Warhead which I deleted 30 mins later (although yes, damage is already done by that point) and Red Alert 3 which I then went and bought. Although again damage is already done just by downloading.

    I think some people here either can't read or are missing the point of many posts here. I don't think anyone is saying this guy should not be punished. Just that the punishment for this crime IS NOT RELATIVE when compared to the punishment of WORSE crimes. That's all. The guy got caught, he should be held accountable for his actions. But the punishment should fit the crime, and here it doesn't. Even worse it's a actually a bit of a mockery as he will never be able to pay it back and won't pay it all back. Nintendo know this.

    If I got caught downloading something I would not bitch and moan about getting punished for it, same as I don't bitch and moan when I have been caught speeding. I knew the risks when I did it.

    3william56
    "The "you've download so you're a hypocrite" argument does not hold water"

    I wasn't using that to argue for anything. Was just saying that all those people who are giving "haha, serves the dirty pirate right" and getting all on their high horse about it are more than likely being hypocrites. However I didn't say that had any relevance on weather the guy should have been punished or not. Just that the people here posting those comments should tone it down a bit and not try and take the moral high ground.

    "The "poor boy can't afford it" is sh*t too."
    Again kind of missing the point aren't you? It's not about weather he can afford it or not. I could probably walk into a shop, assault the person in the shop, walk out with 15 copies of the game and would get away with a lighter punishment. My crime would be far worse than that of uploading the game, simply because I beat someone up. That's just backwards.

    As I keep saying, there is no question that the guy should be punished. But the punishment given is very questionable.

    And anyway, as others and myself have said. This case is a lot of bollocks (as in the fine would more than likey never hold up in court), as is most news stories about piracy. Piracy is a huge problem, no doubt. But almost everything you read about it is either made up facts and figures and bull shit stories like this, bending the truth of what actually happened.
    Edited by 2 at 10/02/10 @ 09:02

  • zzyzx #114 2 years ago

    Of course the fine is excessive. But...

    Mario is Nintendo's most valuable franchise - and it isn't close. Pirating a Mario game and thinking that Nintendo will look the other way . . . that's a special kind of stupid.