GAME OVER AS AUSTRALIAN COPYRIGHT PIRATE WALKS THE PLANK
A warning was issued to copyright pirates earlier this month
when a claim made by the video game company Nintendo Co Ltd
(Nintendo) against an Australian individual for illegally copying
and uploading to the Internet its new Super Mario Bros Wii game was
settled. As a result, the pirate, 24 year old James Burt of
Brisbane, will pay AUD$1.5 million to Nintendo by way of damages to
compensate Nintendo for the loss of sales revenue caused by his
actions. In addition, the Federal Court has ordered Mr Burt to pay
AUD$100,000 towards Nintendo's legal costs.
In November 2009, Nintendo commenced Federal Court proceedings
against Mr Burt. Mr Burt had received an early copy of
Nintendo's New Super Mario Bros Wii (apparently after having it
sold to him early by mistake) and made it available for illegal
download on 6 November 2009, one week before the game's
official Australian release.
Super Mario Bros. is one of the best selling video game products
of all time. This latest game is the first version released for
Nintendo's popular Wii console. Under Australian law, it is a
breach of the Copyright Act to copy and distribute games without
the permission of the copyright holder.
Upon receiving notice that the game had been uploaded to the
Internet, and through forensic investigation, Nintendo was able to
trace the source of the illegal upload and identify Mr Burt as the
individual responsible for the upload. Nintendo was then able to
obtain a Federal Court Order to search Mr Burt's home and seize
relevant materials. By way of the Order, Mr Burt was forced to
disclose the whereabouts of all computers, computer discs and
electronic information storage devices or systems at the premises.
In addition, Mr Burt was ordered to allow access, provide passwords
to his social networking sites, email accounts and websites and an
independent computer expert that was appointed was permitted to
make copies of and/or remove any computer hard drive and computer
from the premises. Nintendo's forensic investigations revealed
that the file that Mr Burt uploaded to the Internet was downloaded
50,000 times over a five day period.
Burt's version of events, as told to the Sydney Morning
Herald by his father, is that in order to prove to other gamers on
Internet forums and blogs that he'd been able to purchase the
game a week ahead of its official release date, Burt uploaded the
game file on to the Internet. Burt's father told the SMH that
his son was a very quiet and "fanatical gamer who owned every
console released since he was a teenager and worked part-time at a
freight handling company". Mr Burt snr also said that, once
the game was uploaded to the Internet, another party was
responsible for making it available to be downloaded by others.
Nintendo says that evidence obtained during its investigations
revealed that Burt knew that, by uploading a copy of the game to a
known hacking website, members of the hacking community would be
able to overcome the security measures to allow the game to be
hacked and ultimately downloaded.
In a press release issued on 9 February 2010, Nintendo stated
that it would "pursue those whoattempt to jeopardise our
industry by using all means available to it under the law".
The action against Mr Burt, and its successful outcome for
Nintendo, show that Nintendo is serious about protecting its
intellectual property. Nintendo's success, and the advances in
technology that assisted Nintendo in identifying Mr Burt, may give
heart to other intellectual property rights holders who, like
Nintendo, see copyright piracy as a major problem resulting in huge
costs to industry.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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