Nintendo Wins MSJ Against ROM Site Operator

The Big Picture

Nintendo wins a motion for summary judgment against a ROM site operator, continuing their fight (as previously discussed) with ROM sites.

The Parties

Plaintiff: Nintendo of America, Inc.

Plaintiff's Firm: Perkins Coie

Defendant: Matthew Storman

Defendant’s Firm: N/A

Background

In 2018, Nintendo began a campaign against ROM sites. Most sites suspended operations, but Matthew Storman, the owner of ROMUniverse.com, was determined to fight back. He continued to operate the site and was publicly defiant. In September 2019, Nintendo sued Matthew Storman for copyright infringement (Nintendo of America Inc. v. Matthew Storman, Case No. 2:19-cv-07818, (C.D. Cal 2019)). Storman attempted to crowdfund a legal defense, stating:

Now I know what you’re thinking, this one person is going to take on one of the largest console/gaming manufacturers in the world?  And the short answer is YES, I believe that I have a solid defense, and considering that other romsites have folded and settled, this has never been done before.

And due to the presumed failure of the crowdfunding campaign, it remained one person taking on Nintendo - he was forced to (or chose to) represent himself throughout the case. On December 29, 2020, Nintendo filed a motion for summary judgment which the judge granted on May 26, 2021.

Motion for Summary Judgment

Nintendo moved for summary judgment on all counts (Direct Copyright Infringement, Secondary Copyright Infringement, and Trademark Infringement) and sought $15,610,000 in statutory damages, attorneys’ fees, and a permanent injunction. Storman attempted to avoid responsibility for copyright infringement by arguing that he never actually verified the contents of the files on his website, including those that he uploaded himself. He attempted to walk this line in his opposition to the MSJ and filed a declaration stating:

Defendant denies and disputes that he uploaded any files to said website and at no time did he verify the content of said ROM file. A file with a title of Mario Brothers does not mean that said file contains Nintendo’s copyrighted video game.

The problem for him is that during his deposition he stated:

Q. Okay. And the -- and the files you uploaded, they -- whether you verified what was actually on them, they did indicate that they were ROMs of Nintendo games; right?

A. That is correct.

This did not sit well with the judge who struck the declaration under the “sham affidavit rule,” stating that Storman couldn’t create an issue of fact with an affidavit contradicting his own prior deposition testimony. Any leeway the judge may have been giving him as a pro se defendant was probably gone at this point. Even without this (and several other missteps including spoliation of evidence) Storman’s case was pretty much doomed from the start and the judge awarded Nintendo $1,715,000 in statutory damages under the Copyright Act and $400,000 in statutory damages under the Lanham Act for a total of $2,115,000 in statutory damages as well as attorneys’ fees and costs to be determined later.

Conclusion

Nintendo continues to have success litigating against ROM sites, but we’ll see if it has any real effect on the availabilty of ROMs or if it just continues to be game of whack-a-mole.