Nintendo’s big piracy case against hackers is a very sad story

Back in February, Gary Bowser – described as a “hacker” in most media reports –was sentenced to 40 months in prison for his role in selling cheat and mod devices for Nintendo hardware. Since this was a court case, most of the reports were just names on one page and cold facts, but a transcript of Bowser’s sentencing hearing was just released and there reminding us all that this was a very human case in which the motivations, actions and results were more complex than most reported.

The transcript – first reported by axios— records everything said at Bowser’s sentencing, including testimonies from his attorney, representative of the United States Attorney’s Office and Department of Justice, Nintendo’s general counsel, and the judge himself.

I won’t repeat everything here, but there were a number of passages that I felt presented this case in a more human light than we might otherwise have seen through the lens of Crime + Verdict reporting. I thought this were worth sharing.

Here’s Anand Patel from the Justice Department pointing out how much Bowser made during his time with hacker group Team Xecuter after his previous business went bust:

Though he may have been an unfortunate businessman, that does not condone his actions here. The agreed amount of damages was the foreseeable result of the conduct of the Company and Mr. Bowser. But even if you look at Mr. Bowser’s earnings, which made $320,000 over seven years, he has enabled a very comfortable lifestyle. That equates to about $3,800 a month, all disposable income that would not have been available to him without his involvement in the conspiracy. And you have to remember that this was in the Dominican Republic, where the lifestyle is a little different than some of the other co-defendants in the case. This amount enabled Mr. Bowser to lead a comfortable life. He bought a car, he lived in a nice apartment after basically losing everything.

These are comments from Bowser’s attorney explaining the conditions under which he has been imprisoned since his initial arrest. and which Nintendo was just so keen on sending out a congratulatory press release in February that it boasted about:

Your Honor, when I met with Mr. Bowser, when Mr. Sanders and I met with Mr. Bowser in prison this morning – it’s really interesting how you keep learning new things, even after you’ve been with someone for a year were together – and we were just talking about the journey he took when he arrived in New Jersey, was taken into custody and then went from one federal prison to another and finally ended up in Nevada. And he told me when he came in that he weighed 410 pounds – I didn’t realize he weighed that much – and by the time he got to the FDC he had shrunk to 320. He had lost 90 pounds. So I asked him, “Well, how did this happen?” Well, he said he wasn’t getting proper treatment for the elephantiasis in his leg. And the only thing you really have to worry about is that you have to worry about skin cracking and when that happens you are very vulnerable to a bad infection. He had a bad infection, they took him to a hospital in Pahrump, Nevada, and he got over it. But you know, I asked him how he was this morning. He says, “Well, you know, I had this little tear in my skin this morning.” I said, “Well, how do you guys deal with that?” He said, “Well, I’ve had coffee and made a little paste, and I’ve heard that’s really good for skin care.” And I think it made me realize that the physical challenges he’s having, are not life-threatening; You know, the BOP will try to take care of him as best they can – it’s a big challenge to get proper medical care and he has to fend for himself essentially.

This is a picture of a typical cell at SeaTac’s detention center. Two people live in this room. I showed it to Mr Bowser this morning – because that’s not his cell – and he said, ‘Well, you know, I’m in a little special cell. Mine is about 18 inches wider because it’s a special cell to hold the wheelchair I’ve been using most of the time and I get the bottom bunk because of my problem.” But there are two people here. For six months out of the last 16 months he has been locked in a cell that size plus 18 inches for at least 23 hours a day. During the peak of COVID, they only let people out every three days to shower for maybe half an hour and then come back. You know, he’s getting out a bit, but he’s been here for six months.

Bowser’s attorney also took the opportunity to remind everyone that while the defendant was now commonly known as a “hacker” thanks to news reports on the case, his precise role at Team Xecuter was that of a salesman and support guy:

One of the things that’s happened over time is that when we’re talking about what the group did and what Mr Bowser’s role was, facts get embellished and I think it’s important to keep those two things separate keep. Without Mr. Bowser this enterprise would have continued. There would have been another Mr. Bowser. Without Mr. Chen, without Mr. Louarn [the leaders of Team Xecuter], that is not true. Mr. Bowser was not a developer. The developers, the people who actually made and fixed these devices when Nintendo responded, were paid very well, much more than Mr. Bowser. He wasn’t a reseller. He wasn’t one of those independent entrepreneurs making a lot of money doing it. That being said, the comments about Mr Bowser’s significant role are accurate and we don’t dispute that.

Bowser himself also commented, mainly to apologize to developers and publishers for his actions, but also to provide more background on what his 16 months in prison had been like:

It was a very traumatic experience for me to be arrested, to come here, to go through this. This is the first time I’ve actually been in a prison and going through the court process and everything. And the time I’ve spent already, 16 months in detention, much of that time – I’ve basically spent six months in jail because of COVID. I went through all three waves of COVID before a vaccine was even available. I personally did not get the vaccine and the reason is that I am skeptical about my health condition how it will affect me and I could not get proper medical treatment because I could not get one-on-one with a doctor to see if the vaccination would be possible with my medical condition. When I was first arrested I weighed 410 pounds. I had to use a wheelchair. I’ve spent my life drinking since I was 15 after my mother died and this is the longest I’ve been sober of my life.

This is Nintendo’s General Counsel Ajay Singh repeating the same fallacy you always see in piracy cases – the false equivalency that every pirated game equals a lost sale, which just isn’t true – before he gets to the heart of Nintendo’s pursuit: He claims that Team Xecuter, the group Bowser was a part of, was as annoying to Nintendo as the brand new company Releasing hardware models, which seems to be a much more likely motivating factor in this litigation than the games themselves:

Regarding Nintendo, the defendant and the government have agreed to pay more than $65 million in damages. Additionally, Nintendo has expended tremendous resources to stop Team Xecuter. We’ve been working on this for decades – at least a decade, I would say. Nintendo had to update its hardware to prevent Team Xecuter devices from working. This included the release of a new version of our console. It has also devoted significant resources to software updates and, of course, enforcing intellectual property around the world.

And finally, here’s the judge condemning Bowser, saying that somehow he’s treating the defendant harshly (by sending a message) while sparing him (by saying that under “normal circumstances” he’d be sent to jail for ” 5 years”):

…I always tell the jury: “Your job is not to send a message. Your job is to use the facts to determine guilt or innocence.” But sometimes my role is to send a message. You know, for a long time, white crime wasn’t considered real crime, and it thrived. We in this community still remember the Washington Mutual Bank disaster where nobody went to jail, nobody went to jail, nobody was prosecuted for what should have been serious crimes. And when people are charged, it has an impact and creates a general deterrent that this is no joke, but serious crime with real victims and a significant financial impact on communities. So I think there has to be a role to play here in order to send a message and I want the message to be clear that under normal circumstances I would send Mr Bowser to prison for five years. I don’t want to send a mixed message to France. If Mr. Louarn [a more prominent figure in the piracy scene] comes before me for sentencing, he could very well serve tens of years in prison for his role and involvement, and the same goes for the other person. But we have a situation here where Mr. Bowser, terrible as his crimes were, is the least guilty of the three, and he has serious medical problems and challenges, and he has been imprisoned in very difficult conditions for a considerable period of time . With all of this in mind, I agree with Ms. Whaley here that a 40-month sentence is appropriate, and I will give the 40 months.

None of this changes the fundamentals of the story or Bowser’s guilt. The man has committed a crime, knows it and has been punished for it. But as I said, it provides context for events beyond “people commit crimes,” and perhaps helps to show that such cases are more complicated than Nintendo and federal press releases can convey.