Since the reign of the original Xbox, hacking team Team-Xecuter has built a reputation for defeating the digital locks that prevent users from running pirated games on consoles.
More recently, Team-Xecuter has been strongly linked to the Nintendo Switch scene but last year the operation hit the rocks when their operation found itself at the center of a criminal case prosecuted by the US Government.
Last year the US Department of Justice announced that two members of Team-Xecuter had been arrested. Max Louarn, a 48-year-old French national, and 51-year-old Gary Bowser from Canada, were placed in custody and charged under suspicion of being part of a criminal conspiracy. A third defendant, a Chinese man named Yuanning Chen, 35, was reportedly at large.
As that case progresses in the background, with Team-Xecuter’s future in the balance, Nintendo is now taking direct legal action against one of the defendants.
Nintendo Sues Gary Bowser in a US Court
Filed in Washington court on Friday, the lawsuit describes Bowser as one of the leaders of Team-Xecuter, which in turn is described as a “pirate operation” that unlawfully manufactures and traffics for profit an “unauthorized operating system” called ‘SX OS’ and associated circumvention devices.
“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,” the complaint reads.
“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.”
Nintendo says that Bowser is one of a handful of key Team-Xecuter members running the operation day-to-day, including by trafficking in SX OS and circumvention devices via websites, marketing, managing advertising, liaising with manufacturers, and dealing with multiple resellers, several of whom have already been dragged through the courts in the US.
The gaming giant claims that Bowser operated at least four websites – Team-Xecuter.com, Xecuter.rocks, and Team-Xecuter.rocks, and Sx-Xecuter.com, through which SX OS and circumvention devices were marketed. Nintendo also claims that Bowser was the founder and operator of MaxConsole.com which served as a central location for customer and reseller support.
According to the complaint, Nintendo was able to match Bowser with the online handles “Gary opa” and “GaryOPA” since at times, the aliases appeared alongside the full name Gary Bowser. This shows that Bowser is Team-Xecuter’s “front man” and that he had control of the websites’ content, Nintendo adds.
Team-Xecuter and Gary Bowser – A History of Hacking
While the complaint only targets alleged Switch-related offenses, Nintendo supplies a potted history of Bowser’s involvement in the hacking scene dating back at least 13 years.
The complaint states that Bowser was charged in Canada in 2008 in connection with an “elaborate operation” to counterfeit Nintendo games and modify games consoles, adding that Bowser has trafficked in circumvention devices for several consoles prior to the Switch including Nintendo DS, Wii, and 3DS.
In respect of SX OS, Nintendo says it was wildly popular and at one point was pre-installed on 89% of modded/hacked Nintendo Switch products available for sale. This caused Nintendo “tremendous harm” and undermined the trust that third-party developers should have in Nintendo that their games won’t be illegally distributed or played.
Multiple and Sustained Breaches of the DMCA
Nintendo says that it should be protected by the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA) but Bowser violated Nintendo’s rights by supplying SX OS and circumvention devices that defeated the company’s technological protection measures.
Trafficking in SX OS and circumvention devices has already been shown to be illegal, Nintendo writes, pointing to a pair of earlier Switch-related cases, one decided last December with a $2m judgment and another with a broad injunction.
“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,” Nintendo says.
“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.”
Trafficking in Devices in Violation of the DMCA
Section 1201 of the DMCA prohibits the trafficking of devices that are primarily designed to circumvent technological protection measures that control access to and prevent the copying of copyrighted works. This includes their manufacture, importation, and sales to the public.
Nintendo says that Bowser violated its rights when it offered tools including SX OS, SX Tools, SX Installer, SX Server, SX Loader, SX Dumper, and similar software distributed via MaxConsole.com. The defendant also breached the DMCA when he selected and approved resellers of SX OS license codes, since that is considered a “service” as defined under the DMCA.
In addition, every time Bowser recruited people as testers of the SX Core and SX Lite products he shipped circumvention devices to those testers, which Nintendo says amounts to additional trafficking offenses.
For Bowser’s alleged violations of 17 U.S.C. § 1201, Nintendo says it is entitled to the maximum statutory damages of $2,500 for each breach listed in two counts, plus costs and attorneys’ fees. The company also demands a permanent injunction prohibiting any further acts of trafficking in devices and software.
Nintendo also claims that Bowser infringed its copyrights when he displayed images of the company’s games on the Team-Xecuter site. Interestingly, the statutory damages for each infringement here are substantially larger than for breaches of the DMCA’s anti-circumvention provisions. For each of the nine images displayed, Nintendo is demanding $150,000 in damages plus, costs, fees and a permanent injunction.
Finally, Nintendo wants Bowser to hand over all the domains listed in the complaint, including all of the Team-Xecuter, Xecuter, and MaxConsole variants. It also demands an order that will allow it to seize and destroy all copies of SX OS and circumvention devices in Bowser’s custody.
Nintendo’s complaint against Gary Bowser can be found here (pdf)