Jail term for Nintendo pirate Gary Bowser was “unique opportunity” to set example, court documents reveal

Court documents detailing the sentencing of Nintendo game pirate Gary Bowser have shed new light on how his 40-month sentence was designed to deter others from similar crimes.

Back in February, Bowser was told he would serve 40 months behind bars – more than three years – after pleading guilty to his part in the distribution and sale of piracy-enabling devices.

Now, newly-detailed documentation dug up by Axios and Kotaku has revealed how Nintendo’s lawyers and US district judge Robert Lasnik discussed Bowser’s jail time as a means to set an example – even as Bowser’s own lawyers argued his physical health was at risk, and argued that Bowser had already spent 16 months locked up awaiting trial.

Nintendo’s May Switch Online games.

Bowser’s lawyers noted how their client had lost 90 pounds while in prison as he had been unable to seek treatment for a leg condition which required regular treatment and had left him in a wheelchair.

“This is a picture of a typical cell at the detention center at SeaTac,” Bowser’s lawyer explained to the judge. “Two people live in this space. I showed this to Mr. Bowser this morning – because this is not his cell – and he said, ‘Well, you know, I’m in a somewhat special cell. Mine is about 18-inches wider because it’s a special cell to accommodate the wheelchair that I was using much of the time, and I get the bottom bunk because of my problem.’ But there are two people here. For six months of the last 16 months, he has been locked in this sized cell, plus 18 inches, for at least 23 hours a day. During the height of Covid, they only let people out every three days to go out to take a shower for maybe a half an hour and come back.”

Said Bowser himself: “It has been a very traumatic experience for me getting arrested, coming here, going through this. This is my first time actually in a jail going through the court process and everything. And the amount of time I’ve spent already, 16 months in custody, a lot of that time – I spent six months, basically, locked up due to Covid. I went through all three of the Covid waves before there was even a vaccine available. I personally haven’t got the vaccinated [as] I am skeptical with my medical condition, how it will affect me, and I haven’t been able to actually have proper medical treatment because I haven’t been able to have a one-on-one with a doctor to see if the vaccine would be possible with my health conditions. When I first got arrested, I was 410 pounds. I had to use a wheelchair. I spent my life drinking, since I was age 15, after my mom died, and this is the longest time I have been sober in my life.”

Bowser’s legal team stressed how their client had not been one of hacking group Team Xecutor’s two main founders – that “without Mr Bowser, this enterprise would have gone on” as “there would have been another Mr Bowser” – and that while Bowser had profited to the tune of $320k, this had been over the course of seven years, and was signficantly less than the $14.5m in fines he was eventually told to pay ($4.5m in this case, and $10m in a separate civil lawsuit filed by Nintendo itself).

Nintendo’s lawyers argued Bowser should be jailed for the maximum five years, and focused on the costs it had estimated Team Xecutor had caused Nintendo over the years – “damages greater than $65m”. How did it reach that figure? Nintendo said it had needed to spend time updating hardware and “releasing a new version of our console” (potentially this small update) to deter piracy, as well as on “IP enforcement”. Those legal bills don’t come cheap!

Judge Lasnik appears to have been sympathetic to Nintendo’s arguments, and in one exchange with Nintendo’s legal team discussed how popular culture had portrayed hackers as “the little guy” who was “sticking it to the man”.

“What do you think? What else can we do to convince people that there’s no glory in this hacking/piracy?” Judge Lasnik asked Nintendo’s lawyer.

“There would be a large benefit to further education of the public,” Nintendo’s lawyer replied.

The US government is still seeking to prosecute Bowser’s two Team Xecuter accomplishments, Max Louarn and Yuanning Chen, who remain at large.

“I always tell the jurors, ‘Your role is not to send a message. Your role is to decide guilt or innocence on the facts’,” Judge Lasnik said. “But my role sometimes does entail sending a message.” Still, Lasnik decided the full five years should be reserved for Bowser’s accomplishments – should they eventually face trial.

“I want the message to be clear that, under normal circumstances, I would send Mr Bowser to prison for five years,” Lasnick concluded. “If Mr Louarn comes in front of me for sentencing, he may very well be doing double-digit years in prison for his role and his involvement, and the same with the other individual.”

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