For years, if you wanted to acquire a Nintendo game illegitimately, there was one place to go: RomUniverse. The site was clearly a target for Nintendo, who had issued a number of DMCA Takedown Notices against the site, but it was an unstoppable network. In 2019, the company filed suit against the site and its owner, Matthew Storman. This week, a judgment was finally issued, and it is a big one.
A judge awarded Nintendo a judgment for $1.715 million, which represents $35k per game. In addition, another $400k was levied for use of Nintendo's box art. This is a far cry from the over $11 million the company was looking for, but still a large judgment in their favor. Nintendo is aware that they will receive no actual money from this case, as Storman is unemployed and living on food stamps, but they hope that the case will serve as a warning for others who might attempt to take the place of RomUniverse.
So, what happened?
Storman undermined his case at every turn. And, to add insult to injury, he tried to defend himself against a major corporation. He started off on the wrong side of the argument when he claimed he could not turn over data about download numbers because it was no longer available following the site's shutdown. Nintendo believed that he purposely destroyed the data, setting himself up for additional trouble.
He attempted two primary defenses, the first of which was trying to hide behind the "safe harbor" clause of the Digital Millennium Copyright Act (DMCA). This protects a site from litigation based on content uploaded by its users, so long as they respond to DMCA requests within a timely manner.
Unfortunately, during a deposition, Storman admitted to uploading some of the content himself as the owner of the platform. In fact, it is likely that a lot of the content was uploaded by staff. That means that the site is not entirely user-generated, and therefore does not qualify for protection under safe harbor.
His second argument, based on his admission in the first, is that he qualifies under the "first sale doctrine." But the argument was a massive stretch, because the site was not selling his personal property. Instead, it was selling access to copies of his or others' property, rather than the original.