In the latest turn of events, Nintendo has responded to the motion to dismiss its lawsuit against the download portal RomUniverse.
Back in September, Nintendo filed a lawsuit against RomUniverse for copyright infringement. But the download portal's site operator Matthew Storman filed a motion to dismiss in October, stating that he was under the protection of the DMCA's safe harbor provisions.
However, last week, Nintendo argued back saying that RomUniverse was in no way under the purview of the DMCA's safe harbor provisions; furthermore, the Japanese gaming giant further stated that Storman's arguments “completely miss the mark.”
“The website is among the most visited and notorious online hubs for pirated Nintendo video games. Through the website, Defendants reproduce, distribute, monetize, and offer for download thousands of unauthorized copies of Nintendo's video games,” wrote the gaming company, per TorrentFreak.
The download portal RomUniverse allows users to download movies, books, games, and other content, which includes several Nintendo titles as well. What's more, RomUniverse also put together a premium membership account in place, allowing users to download unlimited content from their site.
The site operator, Storman says that he is merely the service provider and is in no way part of the forum itself, meaning that he was entitled to the DMCA's safe harbor provisions. Storman further argued that the content uploaded on the site was not owned by Nintendo, and that the content purchased from a seller could be sold, destroyed, or given away, as per the First Sale Doctrine.
“The First Sale Doctrine permits non-copyright or trademark owner to dispose of their copies as they see fit. The Plaintiff does not own copies on websites,” wrote Storman.
Nintendo argued back saying that the First Sale Doctrine didn't apply to a case of massive copyright infringement, as they suggest in the case of RomUniverse.
“Mr. Storman is doing much more than simply distributing any copy of Nintendo's copyrighted video games he may have. Instead, he is reproducing the video games, creating derivative works, and distributing hundreds of thousands of those derivative works. The first sale doctrine does not permit such blatant infringement,” wrote Nintendo.
It is also worth noting that Storman hasn't specified which safe harbor of the DMCA applied to his case; but based on Nintendo's arguments, Storman's activities might disqualify him any such protection.
As of now, RomUniverse is still running and is requesting users to donate money for funding its legal battle.