If one took a broad overview of the entire history of video gaming, few would dare to argue Nintendo’s legend status over the past several decades.

The Japanese company’s games, both old and new, are renowned for their brilliance and enduring characters. Arguably the most iconic is Mario, who first made his appearance as the hero in the timeless 1981 release Donkey Kong.

Even today, dangerously close to 40 years on, countless players still enjoy this and other classics on emulators and similar tools but Nintendo’s tolerance is becoming increasingly fragile. Over the past couple of years, as players toil in the shadows to defeat Kong, Nintendo has become a litigation machine throwing takedown notices and even lawsuits (1,2,3) at sites and alleged infringers.

The company’s latest effort came on Friday when it sent a copyright complaint to development platform Github. The target was a remake of Donkey Kong built with React Native, the open-source mobile application framework created by Facebook.

Created by developer ‘bberak’, this React Native version of Donkey Kong isn’t an emulation, it was created from the ground up for iOS and Android and documented in a detailed post on Hackernoon in April 2018.

Perhaps a little unusually, given the risks associated with stepping on Nintendo’s toes lately, the original repo – which was now been taken down – basically acknowledges that parts of the project may infringe copyright. The game’s code may have been created independently but the visual and audio assets are undoubtedly Nintendo’s. And the repo happily pointed to the company behind the project too.

“Copyright Notice: All content, artwork, sounds, characters and graphics are the property of Nintendo of America Inc, its affiliates and/or subsidiaries,” the repo read.

“Get in Touch: We are Neap – a development and design team in Sydney. We love building stuff and meeting new people, so get in touch with us at https://neap.co.”

The Neap website reveals that ‘bberak’ is Boris Berak, co-founder and Technical Director of the Australia-based company. TF contacted them for comment but at the time of publication, we hadn’t received a response.

In hindsight, it was probably a mistake to use Donkey Kong as a technical demo since Nintendo has already shown an aversion to such projects in the past. Back in June 2017, the company targeted a Donkey Kong remake for Roku, also hosted on Github. Interestingly, the complaint filed Friday appears to have an artifact from that two-year-old notice.

Stating the content being targeted most recently, Nintendo states: “Nintendo’s Donkey Kong video game, covered by U.S. Copyright Reg. No. PA0000115040 (supplemented by PA0000547470). The reported repository contains a recreation of Nintendo’s Donkey Kong video game for Roku, which was created and published without Nintendo’s authorization.”

The text is an exact match with that in the earlier complaint, even going as far as referencing Roku, which appears to be an error. Nevertheless, those details are irrelevant to the claim and won’t be good grounds for a counter-notice.

As Nintendo’s notice points out, at least another 30 developers forked this Donkey Kong variant on Github, so all those repositories have been taken down too. They could probably be restored if Berak removed all the original Donkey Kong references, graphics, and sound, but that seems unlikely.

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DISH Networks’ efforts to disrupt, take down, or obtain settlements from unlicensed IPTV operators are continuing with force through the US legal system.

The broadcaster is currently tied up in a number of lawsuits, each targeting companies and individuals that allegedly provide the company’s content to the public, without having first obtained appropriate licensing.

A complaint filed in August targets Easybox IPTV, an allegedly-infringing IPTV outfit that supplies both subscriptions and ready-configured (aka ‘fully-loaded’) devices to the United States market.

The DISH lawsuit, which demands around $10 million in damages, was filed in a Texas federal court. It lists up to five ‘John Does’, claiming that individually and collectively they do business under the Easybox IPTV banner.

DISH earlier explained that it doesn’t actually know who these people are but its investigations indicated that they might be from China. Now, however, it has now been given the opportunity to discover their identities after gaining permission from the Court.

A discovery order signed September 19 by District Judge Lynn N. Hughes grants DISH permission to subpoena and obtain information from some of the world’s largest Internet companies that have done or are still doing business with Easybox.

The list is comprehensive and a potential eye-opener for other IPTV providers operating without cast-iron licensing agreements.

Top of the list is payment processor PayPal. The Easybox website is currently down for supposed maintenance but according to archive copies of the site, PayPal isn’t clearly listed as a payment option for direct customers. Nevertheless, the company is probably head of the list for good reason.

Second up is Google. Like many companies, Easybox is likely to have used Google in several ways but a cursory review of the site’s source reveals an analytics account and links to the now-defunct Google+.

On the domain front, DISH has permission to subpoena Washington-based domain name registrar Enom and domain registry Namecheap. The Easybox.tv domain has clear links to both and could provide useful information.

When it comes to hosting, Miami-based Netrouting Inc. makes an appearance. In common with the domain companies, these may also have valuable information for DISH.

Easybox’s Facebook and Twitter pages are no longer active. The former is listed as unavailable but the latter appears to have been suspended after violating the platform’s rules. But whatever the reasons for their demise, both companies are likely to have plenty of additional information to offer up.

Finally, DISH will be able to enter the physical world to request information from entities that appear to have distributed or sold Easybox IPTV devices. Michigan-based fulfillment company Xpert Fulfillment Inc., Finest Bargain Inc. (which appears to sell via Amazon), and Ace Discount Store are all listed and should expect calls for information soon.

“By November 4, 2019, DISH must replead this case identifying the defendant as Easybox IPTV. When the other defendants are identified, they may be named,” Judge Hughes concludes.

The discovery order can be obtained here (pdf)

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In 2011 and 2012, the US Navy began using BS Contact Geo, a 3D virtual reality application developed by German company Bitmanagement.

After some initial testing, the Navy agreed to purchase licenses, understanding that these could be used across its network, as long as the number of simultaneous users was limited to a few dozen.

Bitmanagement saw things differently. The software vendor said it never authorized this type of use. When the company was informed that the Navy had installed the software on 558,466 computers, that came as a surprise.

This stance was repeated in a Federal Claims Court complaint filed by Bitmanagement three years ago. The German company accused the US Navy of mass copyright infringement and demanded damages totaling hundreds of millions of dollars.

In the years that followed, both parties conducted discovery. Initially, most of the court documents were made public, but more recently they were shielded from public view. What we do know, however, is that a week-long trial took place in Washington in April.

Following the trial and the post-trial briefs, the Court has now decided to dismiss the copyright infringement claim against the US Government.

“Although Bitmanagement established a prima facie case of copyright infringement, the evidence shows that Bitmanagement authorized the U.S. Navy’s copying of BS Contact Geo version 8.001. Therefore, the Court finds in favor of Defendant, the United States, and Plaintiff’s Complaint is hereby dismissed,” the verdict reads.

In a detailed opinion and order, published this week, Senior Judge
Edward J. Damich explains how this conclusion was reached.

The dispute appears to have begun when the US Navy decided that it would like to run the software across its entire network. This meant that it would be installed on hundreds of thousands of computers, with “Flexera” software keeping track of the number of simultaneous users.

Bitmanagement didn’t offer such a license by default, so the Navy requested this option separately. These requests took place through a reseller, Planet 9 Studios, which complicated matters. After several back and forths, the Navy was convinced that it had permission, but Bitmanagement later disagreed.

What’s clear is that the Navy never had a direct contractual relationship with Bitmanagement, so there was no direct permission given. This means that the Court had to review the conversations and exchanges that took place, to determine which side was right.

Here, the Court concluded that it’s clear that Bitmanagement authorized the Navy to use the software across its network with the network use (Flexera) license.

The evidence shows that Bitmanagement itself offered a custom license and changed the software installer to be used with a Flexera license. Through email communication, the German software company was repeatedly informed about this intended use, which it confirmed.

In addition, Bitmanagement cited the Navy’s ‘networked’ use of its software to a potential customer, with the following statement.

“After five years of testing, approval for the use of the BS Contact Geo on 350,000 PCs of the US Navy took place in May 2013 and central distribution has begun. In a second step, the distribution of the BS Contact Geo on 800,000 PCs in the largest computer network in the world will take place.”

Based on these and many other pieces of evidence, the Court concluded that the US Government can’t be held liable for copyright infringement.

“Together, these interactions unequivocally show that Bitmanagement was not only aware that the Navy planned to install BS Contact Geo “across a broad spectrum of the NMCI realm” but also that Bitmanagement authorized such installations,” the Court writes.

This means that after three years the US Navy has successfully defended the piracy claims. Instead of a potential $600 million judgment in its favor, Bitmanagement has no other option than to retreat.

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A copy of the order and opinion of Senior Judge Edward J. Damich of the United States Court of Federal Claims is available here (pdf).

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Back in March, US-based author John Van Stry filed a copyright infringement lawsuit against Travis McCrea, the operator of eBook platform eBook.bike.

The direction of the case has been somewhat disorganized but rests on Van Stry’s basic claims that his books appeared on eBook.bike without his permission and weren’t taken down, resulting in breaches of copyright law.

McCrea, on the other hand, says that the DMCA notices he received from the author were deficient, meaning he has no case to answer. In August, a motion for default judgment filed by Van Stry was set aside, as was a motion to dismiss filed by McCrea. At that time, a trial date was provisionally set for June 2020.

This week, McCrea – who is defending himself – filed his answer to the 54-page complaint filed by Van Stry in March. In many respects it covers old ground, such as restating McCrea’s defense under the safe harbor provisions of the DMCA and reiterating the claim that Van Stry’s notices were deficient and thus contributed to any problems he may have faced.

Even more fundamentally, McCrea’s answer states that no evidence has been presented to the Court to back up Van Stry’s claim that eBook.bike ever advertised, imported, or distributed any copyrighted material. On that basis, McCrea denies all the claims to the contrary.

“No files have been submitted for evidence, nothing that proves that infringement actually happened at all, nothing that even shows the files were in fact on the servers,” he writes.

A significant portion of Van Stry’s original complaint focused on McCrea’s character and alleged previous conduct, describing him as having a “proud history of pervasive, blatant, and egregious violations of other persons’ intellectual property rights” as a key figure in the Pirate Party movement.

The complaint adds that McCrea was president/reverend of the Kopimist Church of Idaho – a spin-off from the pro-file-sharing Church of Kopimism which was recognized as a religion in Sweden back in 2012.

“‘Reverend’ McCrea is on record as having said that ‘giving away other people’s intellectual property’ is his ‘religious vocation’,” the complaint noted.

In his answer, McCrea says that none of these things should be taken as evidence that he breaks the law.

“[T]he Plaintiff shows that the Defendant is active politically but does not show a link between the political action and the Defendant’s desire to engage in illegal activities,” McCrea writes.

“The Defense accepts that the Defendant has both religious and political beliefs that deal with the concept of intellectual property laws. However, the 1st Amendment of the constitution protects the Defense for having political and religious beliefs.

“It is no more appropriate to allow the belief in Kopimism and the Pirate Party to be evidence for actually infringing in copyright as it would be to assume Baptists and/or a Republican are going to bomb an abortion clinic.”

Further underlining that someone’s religious beliefs don’t necessarily lead to them following every ‘rule’ to the letter, McCrea states that Leviticus 21:17-24 “essentially” tells follows to “shun ugly people” but Catholic Priests don’t do that. Jacob 2:24-30, he continues, references “plural marriage” but Mormons largely reject that because it’s illegal.

“You can believe in something without practicing it. The defense denies wrongdoing and will make a subsequent motion to have religious references struck from the case,” he adds.

But even with that said, McCrea cites religion as at least part of his defense. Noting that Van Stry has provided no proof of infringement and that in any event eBook.bike is protected under the DMCA, he accuses the author of introducing conjecture of a nature that potentially violates his human rights and ability to practice religion without persecution.

“An argument will be made that in a worst case scenario where the Defendant had failed to adequately address the copyright infringement per the DMCA it was only acting in a way to balance their religious beliefs against the societal laws that also bound them,” the answer reads.

“When a religion is acting without harm to those around them, leeway must be given to allow them to exercise their right to free expression as per the First Amendment.”

In closing, McCrea calls for Van Stry to “take nothing” and judgment to be awarded in his favor, including recovering all costs related to the lawsuit from the author and any additional relief the Court deems appropriate.

McCrea’s answer can be obtained here (pdf)

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