Nintendo Sues Australian Pirate for $1.5 Million

Post by trog @ 12:52pm 09/02/10 | 70 Comments

Nintendo have just announced that they've successfully concluded a settlement in the Australian federal court against an Australian individual accused of "illegally copying and uploading to the Internet" part of New Super Mario Bros. Wii.

The legal proceeding resulted in a settlement in which the individual will pay to Nintendo the sum of $1.5 Million dollars by way of damages to compensate Nintendo for the loss of sales revenue caused by the individual�s actions.

Upon the game being uploaded to the Internet, Nintendo was able to employ the use of sophisticated technological forensics to identify the individual responsible for illegally copying the file and making it available for further distribution. On 23 November, 2009, Nintendo obtained a Federal Court search order in respect of the individual's residential premises. This led to the seizure of property from those premises in order to gain further evidence against the individual.

Nintendo viciously defend their intellectual property and have an entire website set up with more information about their anti-piracy activities.

nintendo

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konstie
Posted 12:55pm 09/2/10

BAM!

who was the guy's ISP? iiNET?

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Scooter
Posted 01:07pm 09/2/10

1.5Mil in damages? How much does Nintendo get from each sale of the game (after you take away retailers mark-up /delivery /etc) ?

Thats one hell of a lot of copies.

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thermite
Posted 01:13pm 09/2/10

I found links to add credibility to what trog is saying
http://www.vooks.net/story-18881-Nintendo-Australia-wins-court-case-against-New-Super-Mario-Bros-Wii-pirate.html
http://www.channelnews.com.au/Gaming/Industry/E4H5D8R4

Nintendo searching the property? $1.5 millions dollars? There is something wrong about this :/

last edited by thermite at 13:13:23 09/Feb/10

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trog
Posted 01:41pm 09/2/10

I found links to add credibility to what trog is saying

a) what I'm posting is from an official Nintendo press release b) I'm like honest Abe

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trog
Posted 01:43pm 09/2/10

BAM!

who was the guy's ISP? iiNET?

I assume this is a joke, but in case it's not - this is exactly how copyright infringement should be dealt with. The company that thought their stuff was getting ripped off went to the courts, got a court order, and the user was investigated.

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Dazhel
Posted 01:47pm 09/2/10

Nintendo searching the property? $1.5 millions dollars? There is something wrong about this :/

I'm sure Nintendo didn't execute the search, the police would have.

Besides, if Nintendo had gone in looking for it, the warez would have been in another castle.

last edited by Dazhel at 13:47:08 09/Feb/10

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deadlyf
Posted 01:47pm 09/2/10

This is how you go after an internet pirate, the people who originally make the product available. Going after single mums and teenagers who simply downloaded a personal copy and then demand they pay you millions isn't the way to go.

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Dazhel
Posted 02:01pm 09/2/10

Btw, this article is showing up in the forums as:
"Nintendo Sues Australian Pirate for $1... (Source: AusGamers News)"

I thought that was a bit narky of them until I clicked through. :D

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konstie
Posted 03:08pm 09/2/10

BAM! who was the guy's ISP? iiNET?
I assume this is a joke, but in case it's not - this is exactly how copyright infringement should be dealt with. The company that thought their stuff was getting ripped off went to the courts, got a court order, and the user was investigated.

yes it was a joke. you're being awfully serious today troggy. :(

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tequila
Posted 03:11pm 09/2/10

how can they sue for 1.5 million? purely because they might have lost other potential sales as a result of this guy uploading it?

if he only uploaded it to one guy, thats only one lost sale
f*****g ridiculous that they can say every time its copied after that is also his fault, what someone does with it once its out of his hands is not his problem

they dont even do that to drug dealers for f*** sake, this is just a claim of ownership over something that only exists inside a PC

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konstie
Posted 03:14pm 09/2/10

individual accused of "illegally copying and uploading to the Internet" part of New Super Mario Bros. Wii.

only part of the game as well?

EDIT: This is not a joke or troll, i'm serious. did he get done for uploading only a PART of the game?

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Mantorok
Posted 03:19pm 09/2/10

konstie - New Super Mario Bros. Wii actually had new copy protection, it reads the Burst Cutting Area. So they had to start ripping it.

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trog
Posted 03:19pm 09/2/10

individual accused of "illegally copying and uploading to the Internet" part of New Super Mario Bros. Wii.
only part of the game as well?

EDIT: This is not a joke or troll, i'm serious. did he get done for uploading only a PART of the game?

Yeh the PR is not clear which is why I wrote "part" - it says:

illegally copying and uploading to the Internet the first game file

Teq:

how can they sue for 1.5 million? purely because they might have lost other potential sales as a result of this guy uploading it?

It's also not clear from the PR how "much" he infringed. I suspect/guess that they tracked him as the source of a big juarez distribution that was uploaded to a place like the PirateBay and from there they guestimated the # of downloads by tracking peers or something.

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konstie
Posted 03:21pm 09/2/10

cheers fellas :)

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Any
Posted 03:54pm 09/2/10

well the press release said he uploaded the game, not part of the game.
I'm guessing he uploaded it to a major tracker, then took into account how many ppl grabbed it from that tracker?

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Dazhel
Posted 04:40pm 09/2/10

ABC News has some more details

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konstie
Posted 04:49pm 09/2/10

Under Australian law, copying and distributing games without the permission of the copyright holder is a breach of the Copyright Act.

does downloading the copies fall under the umbrella of "copying" ?

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Sc00bs
Posted 04:53pm 09/2/10

so what, the person declares bankrupt and nintendo get nothing...

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HurricaneJim
Posted 06:07pm 09/2/10

Under Australian law, copying and distributing games without the permission of the copyright holder is a breach of the Copyright Act.

does downloading the copies fall under the umbrella of "copying" ?

Yes.

so what, the person declares bankrupt and nintendo get nothing...

They would not settle out of court if he couldn't pay. If it were a case of some poor person they would just let the court punish them with a criminal sentence.

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GB
Posted 08:13pm 09/2/10

The guy was asking for Nintendo to come find him. He posted all but his address on gbatemp forums.

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`ViPER`
Posted 08:23pm 09/2/10

if the dude was just some guy uploading a torrent, how the hell do they get 1.5mil out of him?

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greazy
Posted 08:24pm 09/2/10

warez distributor (aka bob): just as planed

. Now to proceed to next phase of the plan to take down Nintendo.

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trog
Posted 08:48pm 09/2/10

if the dude was just some guy uploading a torrent, how the hell do they get 1.5mil out of him?

Simple - damages for infringement * number of infringements

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pixem
Posted 09:37pm 09/2/10

ive just skimmed the gbatemp forums ( http://gbatemp.net/index.php?showtopic=189802&st=615 , kongnutz), so may not have got it 100% but from what I can gather he bought a copy 1 week early at some QLD store and uploaded an iso of it. Someone else found a way to crack it with some file replacement (i don't know anything about the wii).

The way I read the article I assumed he had like inside access in Nintendo or in the delivery process before it got to retail, but he managed to get a retail copy from a store early and felt like a hero because of his assumed fortune.

last edited by pixem at 21:37:57 09/Feb/10

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natslovR
Posted 10:48pm 09/2/10

The other thing is that the PAL version came out before the NTSC version, so this version wasn't just pirated by Australians, but by everyone the world over. And it was probably the biggest release that year.

A friend has done some checking around on two non-public but far-from-leet sites and the original PAL ISO that was uploaded (and unusable) was downloaded by over 1,000 people. 4-5 days later the scene release (usable) and a fix came out and was downloaded by about 10,000 people. The NTSC Release came out about 4-6 days later with only 6000+ downloads.

Normally NTSC releases would be downloaded by many more people than the PAL release, but because the PAL release was so early it's the one most people got.

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Mass
Posted 10:23am 10/2/10

The dude is a 24yr old EB Games employee, thats how he got it early.

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pixem
Posted 12:04pm 10/2/10

Saw similar this morning. According to the Sydney paper it said he worked elsewhere but had been an ex EB games employee. How long ago unknown, possible contacts. As I imagine if EB did sell it to the public(more than just this guy) early that they could be liable for something could they not?

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SnotOne
Posted 03:38pm 10/2/10

They can make cruel examples out of people who cant afford to break copyright using "sophisticated technological forensics" to catch them but itll come back and bite them as i for 1 have no respect for thier copyright now where as before today i went in to bat for them and tried to warn people off breaches.. Sorry performers but from what im seeing here and places like the U.S., the support is all over and on the contrary i now have a new interest in watching the current copyright laws change.

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Dazhel
Posted 03:44pm 10/2/10

As I imagine if EB did sell it to the public(more than just this guy) early that they could be liable for something could they not?

If they did break the street date at worse it'd be a breach of contract, not a violation of copyright.

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Mantorok
Posted 03:58pm 10/2/10

SnotOne - What? He leaked the game before it was released. If he couldn't afford it, maybe he shouldn't have shared it with the world. This isn't the same as some naive schoolgirl getting done for downloading Britney Spears MP3s, this is someone who knew what they were doing was wrong and did it anyway. It's a fair cop when you get caught like that.

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tequila
Posted 04:06pm 10/2/10

but then he'd have no one to play against online ^
if it were me, I'd just move and start again

he's either in debt up to his eye balls or he's going to gaol, starting a fresh life somewhere is a very realistic option
everyone deserves a second chance, but not a third.

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Dazhel
Posted 04:22pm 10/2/10

Who are you and what have you done with the real tequila?

The drink driver just slightly over the blood alcohol limit didn't deserve a second chance, he's going straight to the gray bar hotel.

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Seven
Posted 05:02pm 10/2/10

All the people downloading this game must have modded Wii's. Nintendo expect people to believe the people who downloaded this game would have bought it? Lies.

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ctd
Posted 05:31pm 10/2/10

Haha f*** that would suck.

According to the SMH he works part time for a freight company and still lives with his parents. The poor c*** wont be moving out any time soon on what is probably some s*** money like 18-20 bucks an hour.

BLs, he didn't even upload a good game. F*****g mario lol.

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Sommescum
Posted 07:27pm 10/2/10

Nintendo says it was able to trace Mr Burt using sophisticated technological forensics

What in hell are these 'sophisticated technological forensics' they mentioned? One can only wonder....

stinks of corporate dictatorship.
No, sorry, just stinks...

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Persay
Posted 07:32pm 10/2/10

obviously this kid made the fatal mistake of not paying his lawyer 3k/day

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Dazhel
Posted 07:33pm 10/2/10

sophisticated technological forensics

i.e. Nintendo joined the torrent and wrote down the tracker's IP address.

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`ViPER`
Posted 07:41pm 10/2/10

Simple - damages for infringement * number of infringements

yeah i know that, what i meant was, he wasnt making millions of dollars from it so they cant take that money, hes just some 24 year old guy from the suburbs, he doesnt have 1.5 mil, wont he just declare bankrupt?

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Khel
Posted 07:43pm 10/2/10

Nintendo expect people to believe the people who downloaded this game would have bought it? Lies.

Yeah, this is my biggest problem with how they figure out lost sales of music/games/movies/etc. Not saying the guy shouldn't be punished, sure, he broke the law and he got caught, but to try and claim that each person who downloaded the game is a lost sale is just bulls***.

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Sommescum
Posted 07:46pm 10/2/10

Hang on,
If this was a crime - they could not settle out of court.
or,
If they settled out of court - this is not a crime...

Am I wrong?

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greazy
Posted 07:50pm 10/2/10

i dont think whether it was a crime or not has anything to do with it, nintendo are suing for damages/lost income. different court?

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Sommescum
Posted 08:00pm 10/2/10

Thanks Greazy. Sorry, it's just that I keep hearing this 'piracy is a crime' stuff all the time and i got carried away.

So - is piracy a crime or what?

I'm so confused =(

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mgguinne
Posted 08:40pm 10/2/10

Hmm, I find this stuff kind of funny, like the guy has 1.5mil sitting in his bank account, All he would have to do is go bankrupt like the rest of the millionaires out there do when they go belly up, If this post is true I think it would just be a scare tactic for the would be pirates out there, I would be very surprised if Nintendo would ever get that much money from a single person, unless they were already millionaires ?

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Dazhel
Posted 09:19pm 10/2/10

my dodgy research seems to indicate that bankruptcy doesn't discharge court fines. I'm not sure if that applies to this case though.

1.5M is way too much to consider paying unless you're a fat cat so maybe Do Not Pass Go, Do Not Collect $200?

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SnotOne
Posted 10:43pm 10/2/10

Im concerned theres a bigger scheme behind this and never mind gov being above the law...

Freedom is not cheap

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greazy
Posted 11:34pm 10/2/10

Sommescum - im positive piracy is a crime.

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fpot
Posted 11:35pm 10/2/10

^ great another one.

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greazy
Posted 12:19am 11/2/10

I'm not a terrorist, I don't appreciate the discrimination.

F*****.

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Mantorok
Posted 12:20am 11/2/10

I think he meant SnotOne, who seems to be another conspiracy theory nutter.

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Seven
Posted 01:11am 11/2/10

Piracy is copyright infringement.

Was reading the info on copyright.org.au (thanks Trog) and it is legal to copy your own DVDs and music CDs to another format (e.g. ISO and MP3). It is not legal for someone else to copy this for you though.

Also this:

You may be entitled to demand any or all of the following:
1-3) blah

4) that either you be paid for the use of the work or you be given the profits the infringer has made from it

4a)When deciding on how much money you are going to require the infringer to pay for use of the material, you could take into account what you would have charged if your permission had been obtained (a licence fee).

The infringer in this case made ZERO profit AND Nintendo should have to prove that $1.5 million of sales would have been made from the uploading of this material. There is no precedent that downloads = sales.

In some circumstances, infringement of copyright is a criminal offence, and fines and jail terms are possible penalties. The criminal provisions generally apply to commercial piracy and have been used particularly in relation to people infringing copyright in music, videos and computer software.

So no, copyright infringement that most people are alleged to partake in is not criminal copyright infringement and therefore no gaol time associated. However, this is where this guys slipped up:

It is also an offence to advertise the supply of an infringing program...

He uploaded it to a torrent site and talked about it on a forum and therefore advertised it - potential gaol time if he didn't settle, especially if the judge was leaning towards believing that all the downloads = missed sales (a fallacy). Trog was right, copyright.org.au is a good resource.

TL;DR - this guy could have been charged criminally if he didn't settle. If he didn't upload and advertise the material, simple suing for damages/lost sales would occur. Law sucks, as we all know downloading =! lost sales.

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Persay
Posted 01:17am 11/2/10

he made a lot of emotional income by sticking it to the man

this needs to be accounted for

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Tollaz0r!
Posted 04:00am 11/2/10

So basically this court case tells us that when you upload something like this, do it from an anonymous point of access, do it for the world and be very, very humble about it.

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paveway
Posted 07:43am 11/2/10

i saw this story on aca or whatever the f*** last night

the dude's sob story for aca was hilarious

some place sold it to him a week early which as we know sometimes happens, so he "went and told people on the internet about it, and they asked for proof. so he innocently uploaded the game"

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Spook
Posted 07:53am 11/2/10

haha, i feel so sorry for him now!

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ravn0s
Posted 08:49am 11/2/10

i think taking a photo of it would have been proof enough.

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paveway
Posted 09:00am 11/2/10

he's lucky he didn't get done for a whole stack of other games i'm sure he's ripped and uploaded

f*** ripping a game isn't something that takes 5 minutes is it? it takes some time and the right software etc yeah?

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Spook
Posted 09:31am 11/2/10

not really;
just need the right sort of drive (easy to buy) and a raw dumper, or with softmodded wii's you can just extract isos of the games off your hardrive

theres not much to it.

last edited by Spook at 09:31:01 11/Feb/10

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pixem
Posted 10:03am 11/2/10

i think taking a photo of it would have been proof enough.

He did that apparently and of himself, and also the reciept from the store.

I'd say viewing these images and then following it would have also been nintendo's advanced forensic technique.

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trog
Posted 10:54am 11/2/10

i think taking a photo of it would have been proof enough.
He did that apparently and of himself, and also the reciept from the store.

I'd say viewing these images and then following it would have also been nintendo's advanced forensic technique.

haha
what a giant douche

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Soapy
Posted 02:45pm 11/2/10

From what i saw on the news, nintendo lost count of the downloads after 50 000.

Also, he'll be paying this for the rest of his life, he doesn't hafto be a millionaire, however much he can pay per week or whatever. Does the debt move to his children if he can't pay it all in his lifetime?

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ravn0s
Posted 02:57pm 11/2/10

i dont know why they even bother suing for so much money when they are never going to receive it all.

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trog
Posted 02:58pm 11/2/10

Does the debt move to his children if he can't pay it all in his lifetime?

I was googling debt stuff the other day; don't think so. Any debt he has is paid off out of his estate first and foremost before heirs get anything. I think funeral costs are first, then debts are repaid, then anything left goes to people in the will.

i dont know why they even bother suing for so much money when they are never going to receive it all.

awesome PR and deterrent value of such a huge fine

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tspec
Posted 04:04pm 11/2/10

Also, he'll be paying this for the rest of his life

Since he still lives with his parents and probably doesn't have any/many assets, he could just file for bankruptcy. It'll screw his chances for credit/loans etc but better than having to pay off a 1.5mil debt imo.

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mission
Posted 04:06pm 11/2/10

But that's worth it for a free game, right?

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FaceMan
Posted 04:13pm 11/2/10

A little birdy has told me that the whole out of court settlement is a crock.
The media coverage of the alleged fine is meant to be a deterrent for Pirates.
The guy isnt paying one cent.

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mission
Posted 04:14pm 11/2/10

You really are crazy if you think birds can talk.

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Dazhel
Posted 04:33pm 11/2/10

A little birdy has told me that the whole out of court settlement is a crock.
The media coverage of the alleged fine is meant to be a deterrent for Pirates.
The guy isnt paying one cent.

So the message here is, pirate all you want but if you tell Tracy Grimshaw you're sorry you'll get your fee waived?

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ctd
Posted 05:06pm 11/2/10

A little birdy has told me that the whole out of court settlement is a crock.
The media coverage of the alleged fine is meant to be a deterrent for Pirates.
The guy isnt paying one cent.

Nintendo wouldn't give a s*** about his money, they just want ~~people~~ average joe noobs to think twice about uploading games to the intertube.

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tequila
Posted 05:10pm 11/2/10

Since he still lives with his parents and probably doesn't have any/many assets, he could just file for bankruptcy. It'll screw his chances for credit/loans etc but better than having to pay off a 1.5mil debt imo.

Chances are his NDA says something about if he chooses to file for bankruptcy and defaults on his debts, he will be pursued in a criminal court rather than just for damages
like everyone else has already said, it's worth more to nintendo that this goes public and he goes on TV scared s***less saying he will never do it again
I wouldn't be at all surprised if they just said "pay our legal fees ($100k) and sign this NDA, you're free to go", then set him up with a 100k payment plan

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Bah
Posted 05:56pm 11/2/10

Does the debt move to his children if he can't pay it all in his lifetime?

Hah that's a pretty retarded thought, if that were the case he would just leave all his s*** to nintendo when he died, or someone he doesn't like.

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