Last year, Nintendo filed a lawsuit against the game download portal RomUniverse.

The website, which also allows users to download movies and books, was accused of massive copyright infringement, including that relating to many Nintendo titles.


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“The Website contains and offers to the public an immense library of unauthorized copies of video games, primarily Nintendo video games designed for nearly every video game system Nintendo has ever produced,” the complaint read.

The game company argued that the site’s users downloaded hundreds of thousands of copyrighted works. RomUniverse profited from these infringements by offering premium accounts that allow users to download as many games as they want, Nintendo further alleged.

Despite these harsh allegations the site’s operator, California resident Matthew Storman, wasn’t giving up. He decided to defend himself in court and responded to Nintendo’s claims last October through a detailed motion to dismiss.

Storman didn’t deny that he is involved in the operation of RomUniverse. However, he sees himself as a Service Provider, who is not part of the ‘forum’ itself. On the contrary, the admin argued that he’s protected by the DMCA’s safe harbor provisions.

Nintendo disregarded this defense as improper, untimely, and wholly inadequate. In a detailed response, the game company requested the court to deny Storman’s motion to dismiss the case.

After considering the arguments from both sides, US District Court Judge Consuelo B. Marshall has sided with Nintendo. In a ruling released yesterday, she denies the various arguments presented by Storman.

RomUniverse’s operator wanted the case dismissed based on failure to state a claim, lack of jurisdiction, improper venue, insufficient service of process, and failure to join a party. None of these arguments convinced the court.

Storman, for example, argued that Nintendo is not the owner of previously purchased games because consumers have the right to sell, destroy, or give them away. The Judge didn’t address this in detail but concluded that Nintendo’s copyright registrations are sufficient at this stage.

Many of the defenses were linked to Storman’s notion that he is shielded by the DMCA’s safe harbor protections. Nintendo previously said that a motion to dismiss isn’t the proper stage to invoke this defense and the court agrees.

‘The Court cannot determine whether the DMCA’s safe harbor provisions apply to Defendant at this stage because there is no evidence before the Court regarding whether Defendant is a service provider who satisfies the statutory requirements for protection pursuant to the DMCA’s safe harbors,” Judge Marshall writes.

Even if Storman has the right to safe harbor under the DMCA, that wouldn’t make the trademark infringement and unfair competition claims go away.

“Even assuming the DMCA’s safe harbor provisions apply to Defendant, those safe harbors would not protect Defendant from liability as to Plaintiff’s trademark infringement and unfair competition claims,” Judge Marshall adds.

All in all, the court denied RomUniverse’s motion to dismiss. Judge Marshall further requests the site’s operator to file a formal response to the complaint, which is due in two weeks. Whether Storman will continue this fight on his own or will retain an attorney is unknown.

A copy of US District Court Judge Consuelo B. Marshall’s order is available here (pdf).

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