Sunday, May 22, 2022

Switch hacker Gary W. Bowser given 40-month sentence, owes Nintendo $14.5M

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Nintendo of America announced Thursday that one member of the Team Xecuter hacker group has been sentenced to 40 months behind bars for his role in his group’s creation and sale of tools used to pirate video games for the Nintendo Switch.

Gary W. “GaryOPA” Bowser was initially indicted in Seattle in August 2020 alongside Max “MAXiMiLiEN” Louarn and Yuanning Chen. Bowser, of course, shares his surname with the American name for Bowser, the traditional antagonist of the Super Mario Bros. game franchise, as well as current Nintendo of America president Doug Bowser, just to make things extra surreal around here.

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Team Xecuter created modification devices and specialized hardware for use with various video game consoles, for purposes of modifying and occasionally “jailbreaking” them. The group had been active in the game modification space since at least 2013, producing mod tools for previous Nintendo systems as well as the original PlayStation, Xbox, and Xbox 360.

Its modifications for the Switch were ostensibly offered in order to support the “homebrew” scene, so interested players could create and design their own games. Nintendo had previously sued several storefronts that offered Team Xecuter’s products in June 2020. In response, Xecuter told the filesharing-focused news site TorrentFreak that its mods were primarily tinkerer’s tools, and justified them under the umbrella of the “right to repair” movement.

Xecuter’s “SX OS” modifications for the Switch allowed users to install a new OS that enabled several interesting options, such as overclocking the system or being able to wirelessly connect a PlayStation 5 controller to a Nintendo Switch. The overall goal behind SX OS, according to a plea agreement filed by Bowser in October, was always to enable software piracy for profit. This reportedly went so far as Xecuter maintaining illegal archives of Switch games and other software, for which it would charge an access fee.

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Bowser, a 52-year-old Canadian citizen who handled Team Xecutor’s public relations and operated its websites, was arrested in the Dominican Republic in Oct. 2020 and extradited to stand trial in New Jersey. Bowser, Louarn, and Chen were indicted on one count of conspiracy to commit wire fraud, four counts of wire fraud, one count of conspiracy to circumvent technological measures and to traffic in circumvention devices, four counts of trafficking in circumvention devices, and one count of conspiracy to commit money laundering.

In late October, Bowser filed a plea a­greement in which he pleaded guilty on two of the 11 charges, conspiracy to circumvent technological measures and trafficking in circumvention devices, as well as agreeing that Team Xecutor’s motive with its products was always for-profit piracy. Under the terms of the agreement, Bowser stated that Xecutor generated tens of millions of dollars in sales and agreed to pay Nintendo $4.5 million in restitution, which comes alongside an additional $10 million awarded in a separate judgment in December.

Federal prosecutors had initially pursued a 60-month sentence against Bowser, intending to “send a message” as a deterrent to other, similar hacking groups. Bowser’s defenders had argued for a more lenient 19-month sentence, as Bowser himself was only the PR guy/website manager, but that difference apparently got split.

As for Bowser’s co-defendants, Louarn is reportedly in custody in his native France and had his own trial postponed to early January, with no further word on the subject at time of writing. Louarn is, if anything, in more potential trouble than Bowser is, as he’s previously done time in the U.S. for a phone-card scam in the 1990s. Chen, a Chinese national, has not yet been arrested.

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It’s also worth noting here that Team Xecuter’s mistake was arguably its profit motivation. There are numerous other efforts to tinker with and modify the Switch’s hardware and operating system, and generally always are with any video game console; give nerds something with a hard drive and they will find a way to, bare minimum, make it run Linux.

Nintendo itself has arguably driven the creation of a hacking community around the Switch by refusing to allow its users to make local backups of their save files. There are arguably a lot of things you can do with Xecuter’s SX OS that are features the Switch should already have, such as letting you run Switch games off of an external hard drive the same way you can with a PlayStation 4/5.

Even so, Team Xecuter’s profit motive meant it was visibly flying too close to the sun. The SX OS hack was very popular, reportedly pulling in tens of millions in regular sales. It also actually drew fire from within the piracy community in 2018 because its own software required a paid license to work. (That license has, of course, been hacked.)

While this isn’t likely to slow down the Switch homebrew scene in any measurable way, it does set a big precedent for anyone else who hopes to make money off Switch piracy.

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