Bold: Matthew Storman, Sans Lawyer, Counter Sues Nintendo For False Allegation Of Copyright Infringement

from the rom-com dept

The ongoing fight between Nintendo and RomUniverse continues! While most of the targets of Nintendo's ire in its war on ROM sites folded to the company fairly quickly, RomUniverse's Matthew Storman boldly chose to fight in court. That led to Nintendo suing the site for copyright infringement. Storman attempted to crowdsource his legal defense, failed at that, and has been fighting this battle without legal representation. That likely explains the site's lame argument that somehow first sale doctrine makes the Nintendo ROMs on its site non-infringing, as though owners of game cartridges could copy the content to the site and resell or give them away there. The court saw through Storman's argument and allowed the trial to move forward.

Which brings us to the present, in which Storman has not only responded to the lawsuit by claiming, again, that first sale doctrine protects him, but has now added a claim that he had no idea infringing files were on the site at all, and has demanded that Nintendo pay him for false claims of infringement. This reply was supposed to be due to the court in January, but the judge delayed that due date... so that Storman could attend a Federal Pro Se Clinic, where he got advice on how to represent himself.

After the brief delay, Storman filed his answer to the complaint at the California federal court. Still without an attorney, he maintains his innocence and denies all allegations of piracy and infringement.

The site operator states that he is unaware of any infringing content that was uploaded to the website. And if there is any, these uploads may be legally protected by the first sale doctrine.

This is not going to work. Claiming ignorance as to the infringing material is fairly laughable. The first sale doctrine argument is a likely loser as well. And the fact that RomUniverse sold memberships in order to get around download limits makes it so as Storman was profiting off of the infringing material. That Nintendo didn't request takedowns of infringing ROMs, giving Storman a chance to comply and stay on the right side of the law, is annoying, but it doesn't suddenly make his other legal arguments any more valid.

Storman goes on to claim, perhaps not entirely without merit, that RomUniverse is actually good for Nintendo.

In an attempt to turn the tables, Storman argues that Nintendo profited from his site. RomUniverse.com and the associated NDSUniverse.com, serve as free advertising vehicles for the gaming company which generated profit from it, for which the site owner never received a penny.

“Copies on the Website originally from Nintendo when seen by users is a positive advertising asset to Nintendo. It is part of an implied contract with Nintendo over the last 10 years. This advertising asset can be calculated and measured by Nintendo in cooperation with Defendant,” Storman adds.

It's an argument we've made ourselves and it probably has some legs. The problem here is that there is no implied contract and Nintendo is well within its rights to sue for copyright infringement, even if that infringement has benefits for Nintendo.

The real bonkers part of this, however, is Storman's counterclaim for damages from Nintendo.

Instead of compensating Nintendo, Storman wants the gaming company to pay up instead. He demands $150,000 per copyrighted work for the false allegations of infringement, as well as $2,000,000 for each false counterfeiting claim.

On top of that, Storman also wants Nintendo to “permanently approve all copying, distributing, selling, performing, displaying, playing, or otherwise using any copy of an [Nintendo] copyrighted work, or any derivative thereof.”

I don't even know where to begin. Storman's play isn't going to work. Whatever lessons he learned in the Pro Forma classes, his actions aren't a good advertisement for those classes. RomUniverse, whatever its benefits to Nintendo, pretty clearly was a purveyor of infringing material. The site made money off of it. Nintendo, whatever you think of the company, is well within its rights here.

It'd be best if Storman would realize he's digging his hole deeper and cut his losses.

Filed Under: copyright, first sale doctrine, matthew storman, pro se, roms
Companies: nintendo, romuniverse


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  • icon
    That One Guy (profile), 9 Mar 2020 @ 6:41pm

    Breaking out the chewbacca offense I see...

    Clearly he's trying to cause Nintendo's lawyers to facepalm hard enough that they are knocked into comas and therefore unable to continue suing him, as no other explanation could even come close to making sense.

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    • identicon
      spodula, 10 Mar 2020 @ 4:08am

      Re: Breaking out the chewbacca offense I see...

      Well, if your going to go down anyway, You may as well go down screaming and kicking.

      Or perhaps, throw enough sh*t at the wall and see what, if any, sticks. However, i'm guessing none.

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      • icon
        Stephen T. Stone (profile), 10 Mar 2020 @ 4:54am

        Storman can’t argue “first sale” because he didn’t sell/give away only a single copy of a game that someone else sold/gave him.

        He can’t argue “false infringement” because he pretty clearly infringed upon Nintendo-held copyrights (among many others).

        He can’t argue “non-profit” because he was selling memberships that allowed for unlimited downloads of Nintendo ROMs (among other types of content).

        He can’t argue “ignorance” because he ran a site called “ROM Universe”; the intent of the site (and its owner) is fairly obvious to anyone with a passing knowledge of emulation.

        And he sure as shit can’t argue “Fair Use” because…well, that should be pretty clear by now.

        Storman will lose. That much is obvious, except maybe to him. The only question is how hard the courts drop the hammer on Storman in terms of damages.

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        • identicon
          Anonymous Coward, 10 Mar 2020 @ 8:06am

          Re:

          He also can't argue "service provider DMCA safe harbor" because he registered as an agent with the copyright office one day before filing his answer.

          The only thing I saw in his response that might be arguable is a claim on statute of limitations. Under this argument, an infringement claim against any ROM that's been on the site for at least 3 years could be dismissed.

          He should really either throw in the towel though, or find a very good IP defense lawyer.

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          • icon
            Stephen T. Stone (profile), 10 Mar 2020 @ 8:22am

            The only thing I saw in his response that might be arguable is a claim on statute of limitations.

            If we were talking about one copy of one ROM downloaded a few years ago, and the “master copy” on the server was deleted after that download, maybe the argument might hold water. But we’re not, so…yeah, “might” is being exceptionally generous.

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        • identicon
          Anonymous Coward, 10 Mar 2020 @ 8:07am

          Re:

          He can’t argue “ignorance” because he ran a site called “ROM Universe”; the intent of the site (and its owner) is fairly obvious to anyone with a passing knowledge of emulation.

          "ROMs" are not illegal, nor do they necessarily violate copyright. The name is not enough. If he was specifically promoting Nintendo ROMs or had a Nintendo category, that can't make him look good, because there are very few licensed for unlimited public distribution. Although there are a few.

          And he sure as shit can’t argue “Fair Use” because…well, that should be pretty clear by now.

          He can argue whatever he wants, if not convincingly. But "effect upon work's value" is still a relevant factor, and judges are permitted to look at things beyond the standard 4. It's likely that most of the games he distributed have little commercial value, and as a set they do have historical and educational value. And the payments were not for the specific purpose of downloading Nintendo-copyrighted files, were they?

          The first sale argument is, of course, total nonsense. The only arguments that stand a chance would be fair use and DMCA safe harbor (remember that Nintendo didn't send notices here—but that defense will fail if he knew about the infringement).

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          • icon
            Stephen T. Stone (profile), 10 Mar 2020 @ 8:34am

            "ROMs" are not illegal, nor do they necessarily violate copyright.

            Their existence? No. Their being offered for download without the copyright holder’s permission, to the point where the offering site actively profits from the downloads through paid site memberships? Yes.

            He can argue whatever he wants, if not convincingly.

            Yes, thank you, that’s my point: Storman can make those arguments if he wants, but no judge worth a good goddamn will ever accept them.

            "effect upon work's value" is still a relevant factor

            Consider the following: ROM Universe was offering both ROMs of Nintendo Switch games and paid memberships to the site that allowed for unlimited/faster downloads. “Profiting from unlawful distribution of copyrighted material” trumps any possible “preservationist” or “free promotion” argument that could possibly be made.

            The only arguments that stand a chance would be fair use and DMCA safe harbor

            “Fair use” doesn’t mean shit when the copyrighted material is being offered in full with no commentary or critique attached. And the DMCA argument likely won’t apply here because of the sheer scale of infringement going on. Given the name of the site, its content offerings, and the benefits of paid memberships for the site, Storman arguing that he lacked knowledge of infringement would be so patently absurd that no court could dare entertain the notion without losing all credibility.

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            • identicon
              Anonymous Coward, 10 Mar 2020 @ 9:35am

              Re:

              “Fair use” doesn’t mean shit when the copyrighted material is being offered in full with no commentary or critique attached.

              That statement is bullshit. To be clear, so is most of what Storman is saying. But there are four "standard" factors to fair use, and those are to be considered along with other relevant information. It's not a checklist where all factors need to be met. If other factors weigh heavily enough for fair use, a full copy of a work could be sold in theory.

              Consider the following: ROM Universe was offering both ROMs of Nintendo Switch games and paid memberships to the site that allowed for unlimited/faster downloads. “Profiting from unlawful distribution of copyrighted material” trumps any possible “preservationist” or “free promotion” argument that could possibly be made.

              Was ROM Universe offering the files, or were their users? Youtube sells "better" levels of access without affecting safe harbors. Nintendo would still need to show Storman participated in the infringement or was well aware of it (which is likely to be really easy for them, but there is of course the remote possibility he wanted people to post only freely-distributable ROMs for Nintendo systems).

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              • icon
                Stephen T. Stone (profile), 10 Mar 2020 @ 12:28pm

                If other factors weigh heavily enough for fair use, a full copy of a work could be sold in theory.

                You can’t tell me that selling an entire unabridged copy of Harry Potter and the Deathly Hallows without the approval of the book’s copyright holder would be a legal act under any interpretation of Fair Use or copyright law as a whole. You’d lose all your credibility.

                Was ROM Universe offering the files, or were their users?

                The site was called “ROM Universe”. I think that speaks for itself.

                Youtube sells "better" levels of access without affecting safe harbors.

                YouTube also has legal permission to do that.

                Nintendo would still need to show Storman participated in the infringement or was well aware of it

                Again: The site was called “ROM Universe”. Either he was aware of copyright infringement on a site practically named to incite infringement or he was a fully incompetent site administrator. Guess which one is more likely.

                there is of course the remote possibility he wanted people to post only freely-distributable ROMs for Nintendo systems

                With the possible exception of any open source games developed specifically to run on an actual piece of Nintendo hardware (and I can promise you that the number of those is hella low, if any such games exist at all), there are no ROMs for Nintendo systems that are legally free to distribute. You might — might — have a sliver of an argument with “abandonware” games, but you’d have to prove nobody truly holds the copyrights to any such game,

                Storman has no viable, rational defense. He will be crushed beneath Nintendo’s heel and Nintendo will move on like Mario after stomping a Goomba. (Happy Mar10 Day, BTW.)

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            • identicon
              Anonymous Coward, 10 Mar 2020 @ 9:45am

              Re:

              Their existence? No. Their being offered for download without the copyright holder’s permission, to the point where the offering site actively profits from the downloads through paid site memberships? Yes.

              Correct. So how does that relate to your argument that the site's name, "ROM Universe", implied illegality?

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              • icon
                Stephen T. Stone (profile), 10 Mar 2020 @ 12:37pm

                Unless you can prove a ROM is either open source, public domain, or an orphaned work/“abandonware” game with no copyright holder to enforce said copyright, every ROM for every game system developed since the advent of videogaming is illegal to distribute.

                Pong? Copyrighted. Pac-Man? Same thing. Super Mario Bros.? Still under copyright for at least another 50 years or so, and that assumes copyright terms aren’t lengthened in the meantime. No matter how old the game, the ROM is still under copyright unless proven otherwise.

                ROM sites past and present are littered with notices to the effect of “delete this after 24 hours unless you own the original game”, which is the lightest of legal ass-coverings. (It’s also wholly ineffective, but that’s another story.) Equating the sharing of ROMs for any videogame system with “legal behavior” is a practical impossibility. You can argue that the people who dump ROMs are doing something legal, given that they likely own a copy of the original game and format shifting is legal(-ish?). But sharing the ROMs, however one does it, is still an unlawful act.

                Everyone with even a passing interest in emulation knows that fact. But they forge ahead anyway, for whatever reason they have. ROM Universe is no exception; it played with fire. Now its owner gets to watch it, and his life, go up in flames.

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                • identicon
                  Anonymous Coward, 10 Mar 2020 @ 12:53pm

                  Re:

                  Unless you can prove a ROM is either open source, public domain, or an orphaned work/“abandonware” game with no copyright holder to enforce said copyright, every ROM for every game system developed since the advent of videogaming is illegal to distribute.

                  That is patently false. And completely backwards. ROMs are not inherently piracy. There are a great many in the public domain and nobody has to prove they're innocent. The burden of proof lies with those who would claim any given ROM is pirated.

                  That said, I'm sure the vast majority of ROM Universe's catalog consisted of pirated ROMs. Though automatically assuming a site named ROM Universe is violating copyright isn't any more accurate than racial stereotypes, in this case it's true. This time reality aligns with your bias.

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                  • icon
                    Stephen T. Stone (profile), 10 Mar 2020 @ 1:36pm

                    ROMs are not inherently piracy.

                    The existence of a ROM for Super Mario Bros. does not necessarily infringe upon a copyright. This much is true. But the unauthorized (and thus unlawful) distribution of that ROM most certainly does infringe.

                    There are a great many in the public domain

                    And exactly zero of them are from Nintendo.

                    nobody has to prove they're innocent

                    Storman kinda does. He ran a site dedicated to infringement of copyrighted material. He has to prove he didn’t know about any of that infringement at all. His having named the site “ROM Universe” and having set up dedicated sections for various videogame systems sure as shit doesn’t help him.

                    The burden of proof lies with those who would claim any given ROM is pirated.

                    And Nintendo has plenty of proof. For starters, it holds the copyright to every game it has ever published. And it still exists. Ergo, unless Storman had explicit permission from Nintendo to distribute copies of its games (and he didn’t), the bar that Nintendo needs to clear is so low that even a Goomba can’t run under it.

                    automatically assuming a site named ROM Universe is violating copyright isn't any more accurate than racial stereotypes

                    Except it is, unless the site specifically and exclusively distributed open source/public domain/confirmed “abandonware” ROMs. (It didn’t.) Nobody goes to a ROM site looking for those types of ROMs. I never did.

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                    • identicon
                      Anonymous Coward, 10 Mar 2020 @ 10:40pm

                      Re:

                      "Storman kinda does [have to prove he's innocent]."

                      Actually, no. It's really just a tehnicality but I think all he has to do is convince people (jury, probably) that Nintendo hasn't proved him guilty.

                      His chance of refuting Nintendo's arguments are slim to none, I'd imagine, but we should always approach a horse from the right direction :-)

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                      • icon
                        Stephen T. Stone (profile), 11 Mar 2020 @ 1:14am

                        all he has to do is convince people (jury, probably) that Nintendo hasn't proved him guilty

                        Given the facts of the case, he won’t be able to do that. At all. Ever.

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                  • icon
                    Scary Devil Monastery (profile), 11 Mar 2020 @ 3:49am

                    Re: Re:

                    "The burden of proof lies with those who would claim any given ROM is pirated."

                    Interestingly this closely mimics the Pirate Bay Trial argument.

                    Which was, in the end, won by the copyright cult despite them not being able to prove that infringement had taken place, for as much as a single work, by the legal loophole that the TPB crew had shown intent to contribute to infringement.

                    US law closely mimics swedish law when it comes to mens rea so although your argument is correct, the relevant "burden of proof" may not necessarily be the one you mention.

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                • identicon
                  Anonymous Coward, 10 Mar 2020 @ 7:07pm

                  Re:

                  Unless you can prove a ROM is either open source, public domain, or an orphaned work/“abandonware” game with no copyright holder to enforce said copyright, every ROM for every game system developed since the advent of videogaming is illegal to distribute.

                  Nintendo hasn't quite gotten "guilty until proven innocent" written into law yet. Your point was that the name of the site suggested something illegal. That's as absurd as the case in which TechDirt was accused of malice because it has "Dirt" in the name.

                  If the guy had called the site "Nintendo Rom Universe" you might have a point. Although it's still ambiguous, being that there are open-source ROMs for most Nintendo systems. Maybe if it claimed to have all the popular ROMs, sure, that wouldn't do him any favors in court; or if he'd personally created sections for publishers that never allowed free distribution (particularly if there's still a market for those games, which would damage a fair use defence).

                  The "24 hours" bullshit, and the behavior of other ROM sites, is neither here nor there.

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                  • icon
                    Stephen T. Stone (profile), 10 Mar 2020 @ 7:27pm

                    As I said before: People who go to ROM sites generally aren’t looking for those open source ROMs. They’re looking for the unlawful downloads. The whole reason ROM sites even exist in the first place is to make finding ROMs for most (if not all) major systems easier to find. People who go to those sites tend to know that they’re not looking for/downloading legally distributed content. A site called “ROM Universe”, when considered in that context, is unlikely to be mistaken for a hypothetical open source ROM depository.

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                    • identicon
                      Anonymous Coward, 10 Mar 2020 @ 10:45pm

                      Re:

                      "People who go to ROM sites generally aren’t looking for those open source ROMs."

                      To be honest, I suspect you're dead right. But the law probably shouldn't have the luxury of making assumptions like that.

                      For example, is every who uses bittorrent a pirate? What about those who just use it as an efficient way of getting Linux ISO images?

                      What about all the digital copies of movies people have, where they also have the DVD but couldn't be bothered plugging a dead-technology object into their TV, or having to sit through absolutely excruciating warnings from the FBI just to watch content legally obtained?

                      In any case, maybe I WOULD steal a handbag or car :-)

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                      • icon
                        Stephen T. Stone (profile), 11 Mar 2020 @ 1:21am

                        I suspect you're dead right. But the law probably shouldn't have the luxury of making assumptions like that.

                        A fair point, but as I’ve pointed out, the history of ROM sites makes the assumption far more likely to be correct than incorrect. Nintendo will still have to prove its case, though that won’t be a problem.

                        is every who uses bittorrent a pirate?

                        No, since — as you pointed out — the bittorrent protocol has plenty of legal uses. ROM sites, on the other hand, deal almost exclusively in copyright infringement. Even if you could find a ROM site with open source/public domain/“abandonware” ROMs, the number of such ROMs that are available will be dwarfed by the number of copyrighted ROMs.

                        What about all the digital copies of movies people have, where they also have the DVD but couldn't be bothered plugging a dead-technology object into their TV, or having to sit through absolutely excruciating warnings from the FBI just to watch content legally obtained?

                        Format shifting is legal (so far as I know), so anyone who rips a DVD to a personal private media server isn’t really in any trouble. But like ROMs and the whole “don’t download it unless you own the original cartridge” thing, downloading an unlawful copy of a movie you already own is still copyright infringement.

                        Also, quick aside: The smiley emoticon doesn’t make you endearing or funny. It makes you look like you don’t have a point.

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                        • identicon
                          cpt kangarooski, 11 Mar 2020 @ 5:34am

                          Re:

                          Format shifting may be fair use under certain circumstances, but it should not be assumed that it necessarily is every time. But decrypting a DVD outside of playing the disc in a licensed DVD player is likely circumvention, and that's illegal and not subject to the fair use exception. That all got litigated to death over 15 years ago.

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                    • icon
                      Scary Devil Monastery (profile), 11 Mar 2020 @ 3:54am

                      Re:

                      "As I said before: People who go to ROM sites generally aren’t looking for those open source ROMs. They’re looking for the unlawful downloads."

                      No one is arguing that, Stephen.

                      What matters, though, is the argument which will fly in court. For your argument to apply you need to sell that statement to the judge and jury as proven.

                      It's a bit similar to how Capone could be known by every Chicago citizen as the go-to guy for bootleg liquor you didn't look at sideways unless you wanted a pair of concrete overshoes but never get charged for racketeering, murder or prohibition violation.

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                      • icon
                        Stephen T. Stone (profile), 11 Mar 2020 @ 12:30pm

                        For your argument to apply you need to sell that statement to the judge and jury as proven.

                        I can point out how the average ROM site…

                        • advertises which systems it has ROMs for on its landing page more often than not

                        • rarely, if ever, highlights the existence of open source/public domain ROMs

                        • never exclusively limits itself to distributing open source/public domain ROMs

                        • lists infringing ROMs as the most popular downloads on the site

                        …and I’m a straight-up dumbass. Do you really think Nintendo’s lawyers can’t prove true the proposition that ROM sites are primarily used to download infringing ROMs?

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                        • icon
                          Scary Devil Monastery (profile), 12 Mar 2020 @ 4:00am

                          Re:

                          "Do you really think Nintendo’s lawyers can’t prove true the proposition that ROM sites are primarily used to download infringing ROMs?"

                          I think nintendo's lawyers can secure a conviction - but for what, is anybody's guess.

                          Recall that in the most famous classic case of infringement cases - the TPB trial - the copyright cult never managed to secure a single proven case of infringement or that infringement even took place.

                          Instead the entire conviction was secured by mens rea - because the prosecutor managed to establish that there was intent to assist and abet infringement the case resulted in conviction.

                          The average ROM site dumb enough to advertise that this is the proper place to go for unlawfully copies of ROM's clearly has intent.

                          They could at least try to make the claim of safe harbor if they skipped on point 1 and 4 on your bullet list...but they usually don't, which is why I'm betting on a fast conviction in this case.

                          Bearing in mind still that it all hinges on, not common sense, but what the nintendo team of lawyers manages to convince the jury of. Nintendo's team of lawyers would have a hard time proving anything - but then again, that's not what they need to do. They need to convince 12 people and a judge of their pov.

                          Normally the lawyer of the opposing team would try to undermine those arguments...but in this case Storman's lawyer obviously has a fool for a client, as that saying goes, so that's not likely to happen.

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          • identicon
            cpt kangarooski, 10 Mar 2020 @ 2:42pm

            Re: Re:

            "ROMs" are not illegal, nor do they necessarily violate copyright. The name is not enough

            No, but it doesn't help. One of the elements in a laundry list of why the Supreme Court unanimously held Grokster to be liable was that the name was intended to attract former Napster users.

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            • identicon
              Anonymous Coward, 10 Mar 2020 @ 7:10pm

              Re: Re: Re:

              You've got to explain more here. In what way do you feel the name is more indicative of infringement than, say, Youtube or Vimeo? Both suggest video, which after all is almost always copyrighted, often by major companies. Does the "universe" suffix have a preexisting association with copyright infringement?

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              • icon
                Stephen T. Stone (profile), 10 Mar 2020 @ 7:35pm

                In what way do you feel the name is more indicative of infringement than, say, Youtube or Vimeo?

                Grokster. Napster. The similar naming scheme clearly intended for Napster users, who were using that application for widescale infringement, to conflate Napster with Grokster and use it in a similar way.

                The names “YouTube” and “Vimeo” suggest that they’re video sites, yes. But they don’t suggest or imply that they’re set up even near-exclusively for copyright infringement.

                Both suggest video, which after all is almost always copyrighted, often by major companies.

                Plenty of videos on YouTube and Vimeo aren’t copyrighted by major media conglomerates. Implying otherwise ruins whatever credibility you have.

                Does the "universe" suffix have a preexisting association with copyright infringement?

                No, it doesn’t. But “ROM”, when considered in tandem with the history of ROM sites, has such an association.

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                • identicon
                  Anonymous Coward, 10 Mar 2020 @ 10:47pm

                  Re:

                  Surely ROM Universe would be every single ROM in existence. That's what I'd be arguing in court, were I even CLOSE to being a half-competent lawyer :-)

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      • icon
        Scary Devil Monastery (profile), 10 Mar 2020 @ 8:07am

        Re: Re: Breaking out the chewbacca offense I see...

        "Well, if your going to go down anyway, You may as well go down screaming and kicking."

        Can't see it. If he knows he's going down no matter what, why go with the road which won't just be ineffective but makes him look like an undignified idiot clown to boot? I'm assuming he'll still want some semblance of a life after the trial.

        Is he going for the non compos mentis defense?

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  • identicon
    Anonymous Coward, 9 Mar 2020 @ 10:33pm

    Storman happens to have the best arguments... but they also happen to be scuppered by the fact that they're made by Storman. False allegations of copyright infringement and demanding penalties for it is something that really should be done more often, and the suggestion that Nintendo can measure the benefit of the "advertising asset" is pretty smart, given how often copyright plaintiffs love to say they can "prove" damages.

    It's just that this was one of the absolute worst cases to do it in. Seriously, "implied contract"? Who the fuck taught Storman legalese, Tero Pulkinnen?

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    • icon
      TKnarr (profile), 9 Mar 2020 @ 11:51pm

      Re:

      Storman doesn't have very good arguments. For example, his "first sale doctrine" argument falls apart when you notice that "first sale" protects the sale of that copy, it doesn't grant any rights to make and sell additional copies. It'd be a defense if and only if the uploader destroyed their copy upon uploading it and Storman's service destroyed the uploaded copy after the buyer downloaded it, all of which is exactly what RomUniverse doesn't do.

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      • identicon
        Anonymous Coward, 10 Mar 2020 @ 1:15am

        Re: Re:

        Yeah, you'll notice that I didn't mention the "first sale doctrine" thing as part of what I considered his "best" arguments. It's why I said he was the worst possible person to put those best arguments forward.

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      • identicon
        cpt kangarooski, 10 Mar 2020 @ 6:18am

        Re: Re:

        For example, his "first sale doctrine" argument falls apart when you notice that "first sale" protects the sale of that copy, it doesn't grant any rights to make and sell additional copies.

        No, first sale says that the owner of a lawfully made copy can convey it or dispose of it without infringing. If you can lawfully make more copies, first sale applies to them. (This factored into the precise wording of the AHRA)

        It'd be a defense if and only if the uploader destroyed their copy upon uploading it and Storman's service destroyed the uploaded copy after the buyer downloaded it

        No it wouldn't; the byzantine efforts you describe don't cause the later-created copy to be lawfully made, and as a copy is a tangible object, copies can't be uploaded or downloaded anyway.

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        • identicon
          Anonymous Coward, 10 Mar 2020 @ 8:47am

          Re: Re: Re:

          a copy is a tangible object, copies can't be uploaded or downloaded

          Maybe you don't understand what ROMs are and how they work?

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          • identicon
            Anonymous Coward, 10 Mar 2020 @ 9:43am

            Re: Re: Re: Re:

            Maybe you don't understand what ROMs are and how they work?

            "ROM" refers to read-only memory, a type of physical memory chip used in game cartridges. The term is also used, by analogy, for computer files containing the data from these chips. Which are you talking about?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 10 Mar 2020 @ 12:56pm

              Re: Re: Re: Re: Re:

              I'm talking about the type this article discusses: intangible files containing data. Why would the physical ROM even be part of this discussion?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 10 Mar 2020 @ 7:13pm

                Re: Re: Re: Re: Re: Re:

                Because an ancestor comment was referencing first sale, which applies to physical objects but has never (to my knowledge) been affirmed for digital data. The idea that you can make a copy of a file for someone and delete your copy, and claim this is a transfer under first sale, is hypothetical.

                reply to this | link to this | view in chronology ]

                • identicon
                  cpt kangarooski, 10 Mar 2020 @ 8:32pm

                  Re: Re: Re: Re: Re: Re: Re:

                  The idea that you can make a copy of a file for someone and delete your copy, and claim this is a transfer under first sale, is hypothetical.

                  It's not hypothetical, it's sheer fantasy. There is nothing presently in the law that would permit it.

                  reply to this | link to this | view in chronology ]

          • identicon
            cpt kangarooski, 10 Mar 2020 @ 2:22pm

            Re: Re: Re: Re:

            Maybe you don't understand what ROMs are and how they work?

            I understand. But in copyright law, a copy is defined as follows:

            “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

            So a ROM in a plastic cartridge is a copy. You can’t upload it. You can make a new copy to a hard drive or something, though. And then someone can make a new copy by downloading to their home computer or something. This is why so many lawsuits involving uploading and downloading are really about copying and say so.

            reply to this | link to this | view in chronology ]

  • identicon
    Daydream, 10 Mar 2020 @ 12:09am

    Hmm...is the objective to win the lawsuit, though? Or simply damage Nintendo?

    Lawyers are notoriously expensive, and this isn't necessarily an open-and-shut case; Nintendo would have to demonstrate (or convince the judge) that ROM sites aren't covered by copyright safe harbor laws or that Mr. Storman deliberately uploaded infringing works himself or ignored takedown demands. I think. I didn't pass law at university.

    Despite all the propaganda about 'copyright infringement is stealing', piracy doesn't cost companies any real money. On the other hand, lawyers cost quite a bit. Nintendo's losing real money on this case, most likely more than they can reclaim from Mr. Storman (if he tried to crowdsource his defence, I doubt he's rich), and most likely more than the rare few people who go 'oh well, our favourite ROM site is gone, let's go pay for stuff instead'.

    So, unless Nintendo can get a quick win in court and actually get a lot of money out of Mr. Storman, they may have dug themselves a hole where they're spending more than they gain. Maybe. How do cases like this usually go?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Mar 2020 @ 1:09am

      Re:

      Usually it ends with the C&D. Most are scared to fight Nintendo so they do whatever they ask and close down. Not this guy it seems as it looks like he's going to fight to the bitter end though I guess winning is not his aim here. He's just hoping Nintendo will see this as throwing money into a black hole and give up, figuring it's not worth the money they're sinking into this to sue this one guy.

      This guy has no legit case to make so he's just simply making Nintendo spend as much money as possible though I doubt the Nintendo's lawyers are going to try and disway them from continuing since they're likely making bank on this.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 10 Mar 2020 @ 1:31am

      is the objective to win the lawsuit, though? Or simply damage Nintendo?

      Nintendo commands both a multi-billion-dollar war chest and a overall good reputation with gamers and the general public alike. Storman stands no chance in hell of either winning the lawsuit or damaging Nintendo in any way — and that would still be the case if his arguments had any actual merit.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 10 Mar 2020 @ 8:15am

        Re:

        "...and a overall good reputation with gamers..."

        With some, yes. But nintendo has been working really hard at alienating their most diehard fans, specifically the ones who care enough to make videos and other derivative works of gameplay.

        "Storman stands no chance in hell of either winning the lawsuit or damaging Nintendo in any way..."

        Unless, as the AC implies, Storman is at this point just hoping to go down dragging as much of nintendo's war chest with him as possible.

        Or possibly springing for being declared non compos mentis by the judge.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 10 Mar 2020 @ 8:36am

          Unless, as the AC implies, Storman is at this point just hoping to go down dragging as much of nintendo's war chest with him as possible.

          Nintendo probably sells enough Switches in a month to make up for any legal costs incurred by fighting Storman. The company won’t be financially affected by this suit in any significant way.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 11 Mar 2020 @ 3:58am

            Re:

            "The company won’t be financially affected by this suit in any significant way."

            I'm not arguing that.

            I could go with the argument that Storman knows he's going down one way or the other and still wants to waste Nintendo's lawyer time. Possibly out of spite.

            I'm similarly sure me refusing to ever spend a single dime on Sony goods isn't hurting Sony much either.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Mar 2020 @ 10:51pm

        Re:

        No chance? You do realise that people have died from laughing too much, yes? Perhaps this should be treated as attempted manslaughter :-)

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 11 Mar 2020 @ 1:26am

          No chance?

          That’s what I said: no chance in hell. Storman has no defense that can overcome the evidence Nintendo will present at a trial. Even if he drags this case all the way to a verdict instead of settling with Nintendo, he won’t put a dent into Nintendo’s finances in any meaningful sense.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Mar 2020 @ 5:14am

    Maybe he could try for Qualified Immunity. This exact type of infringement has never been tried before (there is no case history). Since he didn't know it was illegal he can't be sued... hey... it works for LEO.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Mar 2020 @ 7:59am

    Its telling that we have a "Federal Pro Se Clinic". Like lemmings getting instructions on how to fall of a cliff. Tuck and roll little buddy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Mar 2020 @ 8:32am

    funny how, in situations like this, while people were able to get from the likes of him, what they wanted, everything was hunky-dory, then when crap hits fan, he and similar others are the biggest fuckers going who deserve all they get! still, i suppose that's what makes us human, two-faced as fuck!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Mar 2020 @ 9:17am

    This thread has notably lacked the usual diatribe talking about Mike and Tim (and the rest of us by extension) being nothing but pirates who hate copyright and the companies who survive by it.

    I'm sure it will come back on other articles where we're calling out the maximalist viewpoint... but for those of you lurking: we all agree that this is valid copyright infringement, even if Nintendo didn't handle it in the best way possible.

    The guy had a huge catalog of other people's property, was offering current games for current platforms, and profited off of doing so.

    I have to admit, I was hoping that a rom distribution site would show up before the court at some point, and was hoping it would make it to the higher courts. This, however, is not the case I'd like to see precedent set on, since he's going pro se and is making claims that obviously do not hold water.

    I know it won't happen, but I'd be happy if the result of this was that the court ordered him to pay Nintendo ALL the profits (from accounts and advertising) he made off the website and sign an agreement that he would no longer offer unlicensed third party intellectual property for download, and Nintendo would eat their own lawyer's fees.

    More likely, he's going to be asked to at a minimum, pay restitution, plus fees, plus damages.

    reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 10 Mar 2020 @ 9:40am

      Re:

      Agreed. I'm not a mad fan of copyright but Storman has no case here while Nintendo does.

      Whether or not Nintendo benefits from Storman's ROM site is immaterial; he infringed and made money from copyrighted items. Bad move. He will lose, and hard.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Mar 2020 @ 11:48am

        Re: Re:

        It's not clear to me whether he made money by infringing copyright, or by running a site that happened to contain some user-provided infringing data. Sites like Youtube and Facebook take money and contain infringing content. (Storman's unsympathic demeanor and loony legal theories means there's no chance of winning, of course. He should've claimed CDA 230 and DMCA safe harbors and shut his mouth about his "free advertising" for Nintendo.)

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 10 Mar 2020 @ 12:47pm

          It's not clear to me whether he made money by infringing copyright

          He offered money in exchange for a special membership status that allowed people with said status to download unlimited amounts of content from his site — content he knew he had no right to distribute. I fail to see how that isn’t profiting from copyright infringement.

          Sites like Youtube and Facebook take money and contain infringing content.

          Sites like YouTube and Facebook also do their best to moderate infringing content off the site. Storman did no such thing, as evidenced by the multitude of unlawfully distributed games, books, and movies on ROM Universe prior to Nintendo’s lawsuit.

          He should've claimed CDA 230 and DMCA safe harbors

          Unless he could prove beyond any shadow of a doubt that he had no knowledge of any copyright infringement of any kind happening on a site named in such a way that it practically promoted copyright infringement — and that’s a tough sell if even I, someone who despises copyright, can see through and shit-talk that potential ploy — he never would’ve stood a chance with a claim of “safe harbor” under both 230 and the DMCA.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 10 Mar 2020 @ 7:18pm

            Re:

            Sites like YouTube and Facebook also do their best to moderate infringing content off the site.

            Historically, only when notified by copyright owners. Courts have said this is usually enough. The law explicitly says so.

            Unless he could prove beyond any shadow of a doubt that he had no knowledge of any copyright infringement of any kind happening on a site

            That's not how the burden of proof works. Nintendo will have to show that he knew, or that any reasonable person would have known. Or that he ignored notices of infrigement, or maybe had no registered DMCA agent, or whatever.

            That'll be really easy for Nintendo, especially against a pro se defendent who doesn't know when to shut up. But if there were any faint hope of success for him, safe harbor would've been it.

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 10 Mar 2020 @ 7:39pm

              Given the history of ROM sites since their inception, anyone who calls their site “ROM Universe” more than likely knew that infringement was taking place. That the site’s videogame offerings were categorized by console says even more about his knowledge. If a regular jackoff like me can wreck a potential “safe harbor” argument in two sentences, imagine what a seven-figure-income corporate lawyer could do to it.

              reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 11 Mar 2020 @ 4:21am

          Re: Re: Re:

          "It's not clear to me whether he made money by infringing copyright, or by running a site that happened to contain some user-provided infringing data."

          Err...no, seriously. It's one thing to run an ad banner and use the income to operate a site. The non-profit thing is important.

          What he was doing was, for many reasons, beyond that.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Mar 2020 @ 6:12pm

      Re:

      This thread has notably lacked the usual diatribe talking about Mike and Tim (and the rest of us by extension) being nothing but pirates who hate copyright and the companies who survive by it.

      Oh, give them time. To be fair, if out_of_the_blue was still with us he'd probably piss his pants in glee. antidirt is still kicking around, albeit at significantly lower frequency.

      Realistically the copyfucker with the highest odds of showing up is tp but he's a bit of an oddball on the kinds of articles he does show up on. We're at this strange impasse where the troll with the highest chances of turning up is goddamn ROGS.

      reply to this | link to this | view in chronology ]

  • identicon
    JustSomeGuy, 10 Mar 2020 @ 10:25pm

    Pro se advice?

    "where he got advice on how to represent himself"? Surely that would be a pretty short piece of advice. "Don't be a f***ing idiot!" is something that comes immediately to mind :-)

    reply to this | link to this | view in chronology ]

  • identicon
    JustSomeGuy, 10 Mar 2020 @ 10:29pm

    Committing crimes for the good of all ...

    I also like "Storman goes on to claim, perhaps not entirely without merit, that RomUniverse is actually good for Nintendo."

    Because that's why I pirate and distribute Microsoft software. Every illegal copy I put in someone else's hands makes it more likely that the Microsoft way of doing things will win out, ensuring greater sales later on.

    And, if by some possibility Ican actually be identified by these comments, no, I don't really pirate software. It's just hyperbole to make a point.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 11 Mar 2020 @ 4:24am

      Re: Committing crimes for the good of all ...

      "Because that's why I pirate and distribute Microsoft software. Every illegal copy I put in someone else's hands makes it more likely that the Microsoft way of doing things will win out, ensuring greater sales later on."

      Ironically Microsoft is on record for saying they'd rather people pirate their product than legally install linux. For, it has to be said, the exact same reason you used in jest.

      reply to this | link to this | view in chronology ]


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