Games and the law #1: Nintendo et al. v. Soulja Boy (maybe)

Since I’m a lawyer and I like video games, I figured it would be a good idea to start a new series in which I analyze hot legal issues in the gaming world. My focus will be on American law, since that’s what I’m trained in, though I won’t ignore foreign law when it enters the picture.

This album sucks. I give it a 1. That counts as a full review, right?

In this first edition, we’ll be taking a look at a real gem: Soulja Boy. It’s long been an axiom that Soulja Boy’s music sucks, so much so that scientists are still working around the clock to determine how it hasn’t yet created a black hole large enough to swallow most of the inner Solar System. But this post isn’t about Soulja Boy’s music – it’s about his possible lack of knowledge of copyright law.

I don’t blame a guy for not understanding the ins and outs of US copyright law. It’s a complicated field. I do blame a guy, however, for not at least understanding that selling a console packed full of ROMs that are indisputably the intellectual property of first- and third-party publishers without a license to do would amount to criminal piracy under United States law. I assume Soulja Boy has attorneys to deal with the protection of his own intellectual property who are available to advise him of that. Maybe his legal team secured licensing agreements with every one of the copyright holders of the supposed 800+ preloaded games on his SouljaGame console and the supposed 3,000+ preloaded games on his SouljaGame handheld. That’s entirely possible, and I’m not saying it didn’t happen. But considering how defensive our dear Drako has been getting on Twitter… well, just read the following:

In a now-deleted tweet, Soulja Boy also noted that he’s “not afraid of Nintendo” nor of “faggot nerds” (his words, not mine.)

Not really the kind of thing you’d say if you had secured a licensing agreement with Nintendo, is it? Again, maybe he did and he’s just acting like a dick on Twitter for no reason.

Hey, to change the subject completely, were you wondering what the United States Code has to say about monetarily profiting off of someone else’s intellectual property without a license from the copyright holder? 17 USC § 506(a)(1)(A) states that “[a]ny person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed for purposes of commercial advantage or private financial gain.” The statute requires a finding of willful behavior – basically meaning that the subject of prosecution knew what he was doing and intended to do so – but establishing knowledge and intent in a case like this isn’t too difficult. And what kind of punishment does section 2319 provide?

(b) Any person who commits an offense under section 506(a)(1)(A) of title 17—
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.

The above-mentioned fine is set forth in 18 USC § 3571(b)(3) at not more than $250,000.  None of this counts the civil penalties that can be levied against the copyright violator in a separate proceeding.

Sorry for going off on a totally unrelated tangent like that. I just thought it was interesting.

By the way, these “SouljaGame” lumps of plastic dogshit seem to be pretty much identical to the myriad bootleg multigame consoles and handhelds that are manufactured and sold in Chinese and southeast Asian markets. Those systems are definitely illegal to sell, and the only reasons they continue to sell are the sheer number of different types of bootlegs sold and the difficulty of suing/prosecuting violators in the countries they flourish in. Hell, they even sell on Amazon. Like this fifteen dollar handheld containing hundreds of NES ROMs. There’s no way Nintendo signed off on this, but I can’t imagine they care too much about some podunk company selling crappy cheap handhelds with 30 year-old games on them, even if they are Nintendo properties. Soulja Boy’s products, on the other hand, have garnered attention all over the world. And if that sales figure of five million Soulja himself cited on Twitter is anywhere close to accurate, I can’t believe Nintendo (or SEGA, or EA, or Activision, or fill in the blank) is going to ignore them.

Just to be clear, I’m not saying that Soulja Boy is a pirate. I am legally allowed to call Soulja Boy a talentless asswipe, because that’s a statement of opinion and not a statement of fact or a legal conclusion. But I’m not saying he’s a pirate. Yes, it seems like he’s profiting off of the sale of what looks suspiciously like a pair of bootleg game systems containing a few thousand games, but again, it is entirely possible that he and his legal team ensured everything was legit by securing licensing agreements with each one of those games’ copyright holders. Here’s hoping they did for his sake.

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Pennoyer v. Neff v. Mitchell v. me

As a 1L at law school, I’ve just gotten through one of the most infamous cases in the standard first year curriculum: Pennoyer v. Neff. Pennoyer was written in 1877 and is the final link in a chain that extends through two lawsuits between a total of three parties involved in a twisted web of unpaid fees, land grabs and weaselly tactics so confusing that the Supreme Court had to create new law just to settle the matter. Pennoyer is a definitive case in the history of personal jurisdiction in the US despite the fact that it’s been upended by later cases like International Shoe Co. v. Washington (which I have to read this weekend.) That’s what my Civil Procedure professor tells me, at least.

But Pennoyer is more than seven pages of drudgery in a casebook. It’s an interesting story in its own right. It involves one Marcus Neff, a guy we don’t know much about except for the fact that he sought out some land in Oregon pre-Civil War and his claim was held up for well over a decade. Neff hired John H. Mitchell, a prominent Portland-based lawyer, to take care of the paperwork. For a reason the casebook doesn’t explain, Neff never paid Mitchell and absconded to California, which was where he was when Mitchell sued him in Oregon state court for his outstanding fees. Mitchell won a default judgment after Neff didn’t show up to court. Not that Neff had been negligent of his duties – the Oregon court had published Neff’s summons in an Oregon paper, printed and circulated in a place that Neff would have never found because, well, he was in California.

613px-John_H._Mitchell_-_Brady-HandyThus bringing us to the most interesting character in the story. John H. Mitchell was originally John M. Hipple of Pennsylvania. He started out as a teacher, but apparently succumbed to the charms of one of his students, because he ended up impregnating a 15 year old girl under his charge (apparently this wasn’t illegal in Pennsylvania at the time.) The 22 year-old Hipple was subsequently forced into a marriage. Sadly, things didn’t go so well for the new couple, and after taking up the law as a profession for a few years, Hipple took off to the newly conquered West with a new lover, another schoolteacher, in tow.

This new relationship didn’t last either. When they reached California, Hipple (now Mitchell) left his paramour behind because she’d come down with a terminal illness. What a guy.

Mitchell ran off to Portland, Oregon, where he established another law practice.

Here Neff met Mitchell and the shit went down. Mitchell ended up collecting his unpaid legal fees from Neff by having the state court confiscate and sell Neff’s property in auction. The man who bought Neff’s property just happened to be Sylvester Pennoyer, future governor of Oregon. Neff soon found out that his land was in the hands of another man and sued Pennoyer, claiming the sale of his land resulting from Mitchell’s default judgment win was invalid.

I could go on, but it’s enough to say that the case went to the U.S. Supreme Court, which ruled that the Oregon court in the original lawsuit had had no personal jurisdiction over Neff, since he was in California and hadn’t been served proper notice (service by publication doesn’t count if you’re an out-of-stater) and that, much more importantly, Neff had bought his land after the Mitchell judgment and therefore the sale was invalid. It’s all supremely confusing, but I think I get the gist of it now.

This case is an essential one for several reasons. It’s a definitive Supreme Court case defining personal jurisdiction, but it’s also a fascinating personal drama. And as a fellow teacher-turned-(prospective) lawyer, I can feel some camaraderie with John H. Mitchell. Minus the whole part about knocking up his 15 year-old student and abandoning his sick lover and all-around being a scumbag deal. Then again, being a scumbag didn’t stop him from being elected to the US Senate three times, so hey. Whatever works.

P.S. – If you’re a law student looking up info about this landmark case, welcome to my site.  I wrote this article back when I was a 1L.  Now I’m an attorney, but I still write about video games as a diversion.  It’s more fun than writing on a law school journal, that’s for fucking sure.

I just wanted to wish you luck at law school and to say that I’m sorry that you’re currently in law school.  You really have no idea yet what you’re facing, even if you think you do.  And be sure to take as many bar-related courses as you can in your second and third years.  You’ll be thankful that you did once bar review time comes around.