More piracy bullshit? Whodathunkit?

Gaming sites everywhere are reporting the story of an Australian man who’s just been ordered by a court to pay poor Nintendo AU$1.5m – about £845,000 – for pirating New Super Mario Bros Wii. (By uploading it, that is. He actually paid for his own copy, and the version he uploaded wouldn’t run without being modified by hackers. His motivation for uploading it was in fact just to prove he’d been sold it by the shop before the official release date and brag about having it early.)

The figure has supposedly been arrived at by calculating that the perpetrator’s uploading of the game cost Nintendo 30,000 lost sales, presumably at a cost of AU$50 each. (NSMBW’s sales, incidentally, were 10.5m copies worldwide in its first two months, with over 200,00 of those in Australia – a record for the territory.) It’s being widely implied – or even stated outright – that this is a court judgement. But guess what? As usual, it’s a load of bullshit.

An actual Australian news site offers a bit more detail on the story. The alleged criminal is in fact a 24-year-old Electronics Boutique employee (or part-time freight worker, depending which reports you believe) who still lives with his parents. Unless EB pays its staff an awful lot better than the average High Street retail chain, it’s pretty unlikely that he’s earned $1.5m while working for them since the age of 18. So why would a judge fine him such an obviously ludicrous sum, and one based on a plucked-from-the-air figure backed up by no kind of evidence of any sort?

Well, clearly they wouldn’t. And they haven’t, because this outlandish and spurious sum is in fact an out-of-court settlement between Nintendo and the accused. The only sense in which the payment is “court-ordered” is that obviously, when a defendant and plaintiff reach an out-of-court settlement, the court tells them to abide by it as the formal means of closing the case.

But hang on. Why would a 24-year-old shop assistant accept an out-of-court settlement for such an absurd sum, that he has no chance whatsoever of paying even if he works until he’s 100? What would he have to lose by taking the case all the way? Well, it’s pretty obvious. By avoiding a legal judgement on the case, the accused avoids any prospect of a jail sentence, and also doesn’t risk jail for defaulting on the “fine”, since it’s not actually a fine.

Nintendo, meanwhile, gets a terrifying headline with which it can attempt to intimidate other would-be pirates, because it’ll be repeated without question by useless pretend journalists everywhere (or even embellished with added idiot wrongness, as in the Nintendolife link above) and everyone will assume you can really be fined life-destroying amounts of money, based on completely made-up evidence, for what in the greater scheme of things is an absurdly trivial crime.

What Nintendo CAN’T afford is for the case to proceed to hearing and judgement, because then (a) they’d have to come up with some sort of evidence to prove these 30,000 lost sales (something which is empirically impossible, wildly illogical and almost certainly a staggeringly wild exaggeration), and (b) they’d run the risk of the defendant being convicted but fined a realistic and modest sum, which would be a huge embarrassment and a blow to the content industry’s expensive campaign to portray piracy as both the ultimate in human evil and more dangerous than buying heroin off a vampire werewolf.

Here’s WoSblog’s view: Nintendo will never receive a penny from this alleged criminal. He doesn’t have it, and what he does have it’d cost them more to have their lawyers pursue him for. I’m betting that this “settlement” quietly agrees that he pays them nothing, but keeps quiet about it. For the flood of free and apocalyptic anti-piracy propaganda the story will generate, Nintendo would be getting a bargain, and Mr Burt will get off with a bit of tarring-and-feathering in the press rather than taking his chances in the increasingly draconian climate of IP law. Everybody wins, except us poor dumb schmucks hoping for decent news reporting.