Gary Bowser from Team Xecuter pleads guilty to charges, agrees to pay Nintendo $4.5 million

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Last year saw the arrest of two members of Team Xecuter, the hacking group behind the infamous SX OS. MaxConsole administrator and GBAtemp user GaryOPA was a part of that, and was extradited from Canada to the United States, where he would face charges. While he initially claimed he was innocent, the opposing prosecution did not accept the defense of SX OS merely allowing Nintendo Switch users to play homebrew software, and asserted that the main goal of Team Xecuter's exploit was to play pirated copies of games.

Faced with 11 felony counts, Bowser has just pleaded guilty to two of them: trafficking in circumvention devices and conspiracy to circumvent technological measures. According to the court, Team Xecuter has caused an estimated number between $65 million to $150 million in losses to video game companies.

This means that Bowser will not have to go to trial, with the plea deal also waiving the other 9 criminal charges. Despite that, he still may face prison time, and as part of the deal, has agreed to pay Nintendo for restitution, to the tune of $4.5 million. Bowser will also have to consent to the destruction or give up the technology seized from his home during his arrest, which includes around 30TB of hard drives, micro SDs, and flash drives, along with laptops, phones, modchips, and hacked game consoles.

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Kopimist

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It absolutely is if it requires DRM circumvention. Removing/bypassing copy protection is a DMCA violation.
Backup copies are covered under Section 117 of US Copyright Law. The DMCA prohibits bypassing circumvention of technological measures for unauthorized copies. Ive always interpreted this personally as legitimate backups ARE authorized by federal law so unless youre actually pirating games no crime has been committed. Im also not a lawyer or legal expert nor do I pretend to be.

https://www.copyright.gov/help/faq/...ction 117, you or,the original copy, once the
 
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RedBlueGreen

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Backup copies are covered under Section 117 of US Copyright Law. The DMCA prohibits bypassing circumvention of technological measures for unauthorized copies. Ive always interpreted this personally as legitimate backups ARE authorized by federal law so unless youre actually pirating games no crime has been committed. Im also not a lawyer or legal expert nor do I pretend to be.

https://www.copyright.gov/help/faq/...ction 117, you or,the original copy, once the
"It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy. There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies."
This pretty much puts a stop to that, because most games and systems don't permit you to make back ups, which is why you need to circumvent the DRM protection. You can legally back up most computer programs, as in those on personal computers because there's nothing stopping you from copying the files or making a disk image.
 
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tabzer

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"It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy. There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies."
This pretty much puts a stop to that, because most games and systems don't permit you to make back ups, which is why you need to circumvent the DRM protection. You can legally back up most computer programs, as in those on personal computers because there's nothing stopping you from copying the files or making a disk image.
How does it put a stop to it when it says, specifically, the Copyright Act has provisions for making backup copies of computer programs.

Are you making the argument that computer programs and games fall under different categories, covered by different laws?
 
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RedBlueGreen

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How does it put a stop to it when it says, specifically, the Copyright Act has provisions for making backup copies of computer programs.

Are you making the argument that computer programs and games fall under different categories, covered by different laws?
For starters said section specifically says you can't make copies if it's against the license agreement. Also computer programs doesn't mean your game cartridges, it means software on your computer. Maybe digital games, but you already agreed not to copy digital games by accepting the console EULA. This is about being allowed to back up computer programs you purchased like Photoshop, not hacking your consoles to dump your games. It is a crime to bypass copy protection. If you have to do this, odds are you don't have the right to make a back up copy of the software, and are making an unauthorized copy. This is why computer software often includes in its EULA that you may have one back up/archived copy.
 
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ZeroT21

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I wonder how these so-called losses can even be incurred, when pirates never have the intention to spend, or does ninty make money off of lawsuits? :wtf:
 

tabzer

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I wonder how these so-called losses can even be incurred, when pirates never have the intention to spend, or does ninty make money off of lawsuits? :wtf:
Pirates may have unintentionally paid for software by paying xcuter. I doubt Nintendo's lawfirms are supposed make more money than what is gained in the legal victories. Whether folks like Gary actually pays the fee is another story.
For starters said section specifically says you can't make copies if it's against the license agreement. Also computer programs doesn't mean your game cartridges, it means software on your computer. Maybe digital games, but you already agreed not to copy digital games by accepting the console EULA. This is about being allowed to back up computer programs you purchased like Photoshop, not hacking your consoles to dump your games. It is a crime to bypass copy protection. If you have to do this, odds are you don't have the right to make a back up copy of the software, and are making an unauthorized copy. This is why computer software often includes in its EULA that you may have one back up/archived copy.

I read from a different source (Cornell), and not the actual gov site that had the entirety of what you quoted. To have "It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy," and "There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies," in the same paragraph seems confusing--but it does appear that the first part makes it pretty clear, that in some cases, you may not be purchasing software, but terms of usage.

I don't understand why they would suggest the existence of provisions (or lack thereof) if the EULA would trump it anyway.
 
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smf

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the DMCA is fraudulent law bought by a bunch hollyweird pedophiles
if you actually pay for media (music, movies, etc.) you are supporting pedophilia , terrorism and the removal of your own freedoms
Off the meds again?

DMCA is not fraudulent.
 

mspy

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but you already agreed not to copy digital games by accepting the console EULA
Can the EULA supersede local law? Like if the law says that you have the right to make backups and the EULA says otherwise which one matters the most?

Also to dump a game you don't necessary need to see/agree to the EULA.
So like if you only see the EULA after you dump a game when trying to run it, since the game is already dumped you are only agreeing to it from that point on? Kinda nitpicking here a bit but that is how the law works, everything is too subjective.
 
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smf

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I've always been perplexed when this happens. Nintendo claims that they've been harmed between 65-150 million, but are made whole by a 4.5 mil restitution. How are they made whole if it's just a fraction of lost sales then? Every year it seems that these companies make such broad claims of piracy damages but fail to provide proof.
Restitution rarely covers the total loss.

Is the 65-150 million total sales? They wouldn't have made that much profit on them.

But sure, they can't know what the sales are, but then nobody can ever know that.

Does it matter if you're mugged and you don't know exactly how much money was in your wallet when you were mugged. If you thought you had $100 in there then you'd say that, even if you were wrong.
 

smf

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Can the EULA supersede local law? Like if the law says that you have the right to make backups and the EULA says otherwise which one matters the most?
Contract law allows you to sign up or for or sign away rights, whether the EULA forms a contract and whether the terms in that contract are fair (and most jurisdictions allow you to ignore unfair contract terms) is another matter.
 
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smf

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while they may have the legal right to lock down hardware as does any other electronics company they certainly have no moral right to do so,
They have the legal right to do it because almost everyone hacking consoles, is doing it purely to pirate games.

I'd say that kinda gives them a moral right to do it.

I'm not entirely sure why it bothers anyone.
 

smf

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"Team Xecuter has caused an estimated number between $65 million to $150 million in losses to video game companies"
How EXACTLY did they loose that? that's bullshit lol These companies always talk about some imaginary loss.

It's an estimate. It's impossible to prove what the loss was & the courts realize that.

You also can't prove that someone is dangerous when driving drunk or speeding, they might not have an accident etc.

However when SXOS was being sold (or someone gets behind of the wheel drunk) then they also don't know how bad the outcome will be and instead put their own self first.

So the prosecution makes a guess how bad it is & you have no moral high road to stand on & say they are wrong.

If you try then it will come over as you not having remorse and it will be worse for you.

If you suggest a lower figure then it also shows you were capable of determining that there would be a non zero loss.
 

Kopimist

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The DMCA isn't all bad as it provides safe harbor provisions for ISP's, web hosts etc etc. Imo the anticircumvention clauses need to be tossed out completely in favor of consumer freedom.
 

City

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So much hate towards a scene that provided people the tools you all used to allow piracy.

problem with the internet, no respect for the scene and you all wonder why no one will bother to try find a new exploits for new consoles, as soon as they get caught or dont provide updates, everyone then seems to hate.

id say gutted to be them and say thanks for what you did for all these years.
This guy had enough money to casually pay $4.5 millions in restitution to Nintendo, and I'm pretty sure he has other money that Nintendo can't get their hands on due to them possibly being offshore. If anything, this story will increase the amount of people trying to break the code to make millions.
 
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Memoir

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It's an estimate. It's impossible to prove what the loss was & the courts realize that.

You also can't prove that someone is dangerous when driving drunk or speeding, they might not have an accident etc.

However when SXOS was being sold (or someone gets behind of the wheel drunk) then they also don't know how bad the outcome will be and instead put their own self first.

So the prosecution makes a guess how bad it is & you have no moral high road to stand on & say they are wrong.

If you try then it will come over as you not having remorse and it will be worse for you.

If you suggest a lower figure then it also shows you were capable of determining that there would be a non zero loss.
Getting drunk has been proven to cause impairment. Piracy has not been proven to damage a company. Not a good comparison.
 

smashbro596

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Getting drunk has been proven to cause impairment. Piracy has not been proven to damage a company. Not a good comparison.
not saying i think we should all be pirates. but yeah, i agree. in the grand scheme of things it's not as big a deal as nintendo is making it.
they are still selling like hotcakes. even with all the piracy taken into account.
 

Zajumino

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Can the EULA supersede local law? Like if the law says that you have the right to make backups and the EULA says otherwise which one matters the most?

Also to dump a game you don't necessary need to see/agree to the EULA.
So like if you only see the EULA after you dump a game when trying to run it, since the game is already dumped you are only agreeing to it from that point on? Kinda nitpicking here a bit but that is how the law works, everything is too subjective.
I feel like these kinds of questions are unlikely to ever be answered, because no one actually gets in trouble for making backups of their games (unless they distribute them in an attention attracting way). Local law enforcement is probably unlikely to go after someone that broke a EULA, but not any local laws. One way of looking at it is to say piracy is effectively legal for most people.
 
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