Nintendo of America has asked as US District Court for a default judgment against a streamer who regularly played pirated games before release and taunted the company, following his failure to respond to a Court Order.
Last year Nintendo sued Jesse Keighin, who it claimed would stream games on various online platforms under his username Every Game Guru.
The lawsuit alleges that since 2022, Keighin has streamed “at least 10 of Nintendo’s leaked games” before they were released, “more than 50 times in total”, the most recent being Mario & Luigi: Brothership.
Although Nintendo said it had “submitted dozens of takedown notices”, and platforms such as YouTube and Twitch have shut his channels down, its suit said Keighin “continues to unlawfully stream Nintendo’s copyrighted works and thumb his nose at Nintendo and the law”.
It also claimed that Keighin taunted Nintendo, sending the company “a letter boasting that he has ‘a thousand burner channels’ to stream from and ‘can do this all day’”.
According to a new motion filed by Nintendo (as reported by TorrentFreak), Keighin “evaded service” of the complaint after it was filed on November 6, so the court allowed it to serve a Court Order through substituted means, which it did on December 20. Keighin’s deadline to respond was January 10, which he failed to do, so the court clerk entered default against him on March 26.
Nintendo has now moved for default judgement against Keighin, but it has asked for less damages than it could have potentially requested. The company states that by failing to respond to the order and defaulting, Keighin has technically conceded liability for all ten games it had listed in its previous complaint, but to “simplify the damages analysis” it’s only asking for damages for one of these games.
“Specifically, Nintendo seeks an award of $10,000 for infringement of Paper Mario: The Thousand-Year Door,” the motion says. “Defendant has been infringing Nintendo’s video games since early 2022, and has been on notice of the wrongfulness of that infringement for at least the last two years, as Nintendo sent dozens of takedown notices for Defendant’s streams of pre-release video games.
But Defendant persisted, moving his streams to other platforms, emailing Nintendo directly saying he can “do this all day,” and promising to “help[] anyone and everyone who wants to get Nintendo games for free (and early). Indeed, it was precisely this conduct that necessitated this lawsuit, which Defendant has deigned to ignore.
“In similar circumstances where defendants ‘knew about, but repeatedly ignored’ copyright notices and encouraged and assisted others’ infringement but failed to appear, courts in this District have awarded significant statutory damages.”
It added: “Here, an award of $10,000 is eminently reasonable for Defendant’s blatant streaming of Nintendo’s video games before any ordinary consumer had lawful access. It is particularly reasonable since Nintendo is electing not to seek damages for infringement of the other nine works as to which Nintendo has established liability.”
Nintendo is also seeing damages of $7,500 ($500 x 15) for multiple violations of circumvention of its anti-piracy security, meaning total damages of $17,500, as well as a permanent injunction preventing him from ever infringing on its copyrighted works (including streaming), trafficking emulators and using Nintendo emulators.
