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Alongside ZeniMax, Nintendo is probably the next biggest litigious gaming company within the industry. The company is known for getting serious when it comes to protecting its brands and ensuring that copyright infringers are punished to the fullest extent of the law. As you can imagine, those selling NES Classic Editions with pirated software were basically trapped in a proverbial alley like a mugger facing off against Batman.
The Hollywood Reporter is reporting that Nintendo has sued a man named Mikel Euskaldunak in Orange County, California. Nintendo claims that he was taking Nintendo Switch consoles and modifying them using the hacking tools that were released at the start of the year. Not only was he modifying the Switch to run homebrew software, he was also filling them up with games and selling them, which his a huge no-no in the realm of the Digital Millennium Copyright Act.
But his troubles didn't end there. Euskaldunak was also swept under the legal hammer of Nintendo for modifying the NES Classic Editions and selling them. It wasn't just that Euskaldunak was reselling the NES Classic Editions -- plenty of scalpers have been reselling NES Classic Editions all over eBay, and Nintendo wouldn't have a leg to stand on while challenging the First Sale Doctrine. However, Euskaldunak allegedly filled up the NES Classic Editions with more than 800 NES ROMs.
Now modifying and selling the console is one thing, but selling them with ROMS packed on them that were not part of the original package is what Nintendo has a problem with. According to the article, the systems were sold with 800 pirated games.
This is interesting because rapper Soulja Boy recently released the SouljaGame Handheld and SouljaGame Console. Both come with hundreds of games from a variety of game consoles, mostly retro systems from the 16-bit era, including the Neo Geo, the Sega Genesis, and the SNES. Both systems sell for over $100, and one must wonder if Nintendo has caught wind of this operation yet?
For now, the company seems to be focused on Euskaldunak and a few other unnamed defendants who have been gathering, modifying, and selling the Nintendo Switch and NES Classic Editions for some extra cash.
Nintendo is also arguing that the operation dilutes its trademarks and wants to have the court bar Euskaldunak from making or distributing modified systems.
It's an interesting case because one has to wonder -- if Euskaldunak sold the systems without any games on them, would Nintendo have still come after him? Also, was it the mixture of selling hacked Switch hardware and the NES ROMs that brought the hammer down? What if it were a modified Switch and a modified NES Classic Edition but no ROMS? Or if it were just a standard Switch and a modified NES Classic Edition?
Either way, this kind of lawsuit is unsurprising given that Nintendo also put some legal muscle on a go-kart company for mimicking Mario Kart, and the company also recently had a pair of emulation sites shut down as well with a $12 million settlement. Given Nintendo's track record for lawsuits, it's unlikely that Mikel Euskaldunak will walk away unscathed.