Enlarge / It’s-a me, the long arm of the law.

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Nintendo says a prominent member of the notorious Team Xecuter hacking group—known for the “SX OS” line of Switch hacking devices—should serve 60 months in prison after pleading guilty to piracy-related charges in November.

The significant sentence for Gary “GaryOPA” Bowser “would send a message that there are consequences for participating in a sustained effort to undermine the video game industry,” according to Nintendo. But Bowser’s defense is arguing for a shorter 19-month sentence that reflects the fact that he “was not the leader, was not in control of the [TeamXecuter] enterprise, and was not the manufacturer of the devices.”

Team Deterrence-ecuter

Bowser—a 52-year-old Canadian citizen who was arrested in the Dominican Republic and deported to the US in 2020—was the “public voice and principal salesperson” for Team Xecuter, according to Nintendo, promoting Switch hacking devices through sites such as maxconsole.com and illegal ROM downloads through sites like rom-bank.com. While Team Xecuter “attempted to hide its illegal activity under the homebrew enthusiast umbrella,” Bowser admitted in his November plea that the “predominant and primary design of the enterprise’s products was to allow purchasers to play pirated ROMs.”

Bowser has already agreed to pay penalties of $4.5 million to Nintendo in his criminal plea as well as $10 million in a separate civil case. But in a recently filed sentencing memo Nintendo says it wants a significant jail sentence on top of that in part to serve as a warning to others who might want to follow in Team Xecuter’s footsteps.

“Given Team Xecuter’s notoriety, this case will be used nationally as a benchmark for sentences in other major piracy and technology circumvention cases,” Nintendo writes. “A five-year sentence will put potential recruits on notice that engaging in this type of criminal conduct will subject them to significant prison sentences that are commensurate with the harm they cause.”

Nintendo cites previous coverage of this case by Ars and other outlets in arguing that “there can be no question that any sentence imposed in this case will be widely disseminated within the video gaming community, as this case is being watched closely by the industry.” Thus, a significant sentence would serve as “a necessary signal to the community that there are consequences for criminal behavior,” Nintendo writes. “This case has the possibility of a real deterrent effect.”

Deterrence aside, Nintendo also argues the significant jail sentence reflects Bowser’s role as a “high-level manager” within Team Xecuter and the “premeditated discipline and refinement of a multinational business operation” that the organization brought to its circumvention device sales.

By selling devices that exploited security flaws in the Switch and other hardware, “Team Xecuter offloaded the hours of work and cost investment associated with the design and manufacturing of a device that allowed users with relatively minimal technical knowledge to circumvent several consoles and obtain illegal copies of video games,” Nintendo writes. “In other words, by making circumvention so easy, Team Xecuter amplified the misconduct by orders of magnitude.”

Above and beyond the $65 million to $150 million in losses Nintendo claims victim companies lost to piracy enabled by SX OS devices, Nintendo also cites the “wasted time, money, and other resources” it expended engaging in “Team Xecuter’s self-described cat-and-mouse game” of circumvention. Nintendo also argues that Bowser “still poses a risk of recidivism” in part because he has “worked in this criminal space for a significant part of his adult life” and on release will face “the same financial hardships and social isolation that led to his becoming the public voice of the Team Xecuter enterprise” in the first place.

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