Nintendo wins $12.2 million piracy lawsuit, but at what cost?

A judge in Arizona has ruled that local residents Jacob and Cristian Mathias must pay Nintendo a not exactly inconsequential sum of $12,230,000 for copyright and trademark infringement. Operating as Mathias Designs LLC, the husband and wife hosted the LoveROMs and LoveRetro websites, providing free downloads of old games from multiple publishers – many of them not available through other means.

Nintendo filed a complaint in federal court back in July alleging that the two websites “are among the most open and notorious online hubs for pirated video games”, with a statutory damages claim of $150,000 per Nintendo game, and up to $2,000,000 for each trademark infringement.

“Through the websites, the defendants reproduce, distribute, publicly perform and display a staggering number of unauthorized copies of Nintendo’s video games, all without Nintendo’s permission,” Nintendo asserted in its lawsuit. “This includes thousands of games developed for nearly every video game system Nintendo has ever produced.”

Between them, LoveROMs and LoveRetro’s libraries featured about 150 Nintendo games at the time, and both websites – and, perhaps realising that shit was about to get real, also several other ROM websites – were shut down before the end of that month.

According to TorrentFreak, the couple has conceded the case in a deal that, at least on paper, puts them $12.2 million in Nintendo’s debt. Whether or not they will actually have to pay this much is not confirmed for the moment, however, as the extravagant amount cited could more effectively constitute a warning to other, similar websites online than be spent building a new moon base for Nintendo president Shuntaro Furukawa.

But while the company has every right to pursue this sort of litigation, the erasure of otherwise out-of-print games from the internet is a much more ambiguous problem. Accessibility on now-gen consoles for much of the industry’s legacy catalogue is limited – even Nintendo’s Switch doesn’t have virtual console support, and its NES Classic and SNES Classic reissues come pre-installed with whatever its marketing team decided on, and not necessarily that game you stayed up all night playing when you were 10. If Nintendo and other publishers aren’t going to preserve their own history for the next generations, who can? People who have $12 million in the bank for funsies, I guess.