Gary Bowser, a member of the notorious Team Xecuter group of console hackers, has been sentenced to 40 months in prison for his role in promoting and selling devices in the SX OS line of piracy-enabling devices for the Nintendo Switch.
The final sentence, which comes after Bowser filed a guilty plea in November, falls almost precisely between the 60 months sought by prosecutors and the 19 months sought by Bowser's defense. Bowser has already served 16 months of pre-sentencing detention after being arrested in the Dominican Republic and deported to the US in 2020.
In pushing for jail time for Bowser, federal prosecutors were clear that they thought a significant sentence "would send a message that there are consequences for participating in a sustained effort to undermine the video game industry." Prosecutors are also expecting that media coverage of Bowser's fate will help with deterrence, writing 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."
Nintendo also seemed happy to lean into the "send-a-message" idea, saying in a statement sent to Ars that the company "appreciates the hard work and tireless efforts of federal prosecutors and law enforcement agencies to curb illegal activities on a global scale that cause serious harm to Nintendo and the video game industry."
"These are serious criminal offenses with real victims and harm to the community," US District Judge Robert S. Lasnik said during the sentencing hearing.
Taking the fall?
Bowser's sentence is significantly longer than that for Megaupload programmer Andrus Nõmm, who faced a sentence of a year and a day after pleading guilty in 2015 to copyright infringement amounting to $400 million over five years.
In addition to jail time, Bowser had previously agreed to pay $4.5 million in criminal penalties as well as $10 million in a separate civil suit brought by Nintendo. Bowser made an estimated $320,000 over seven years through his work for Team Xecuter, according to court documents. That's despite "tens of millions" of dollars in SX OS device sales that contributed to $65 to $150 million in copyright infringement, according to Bowser's guilty plea.
Two other members of Team Xecuter who were indicted alongside Bowser in 2020—and who Bowser's lawyers say were much more central to the operation—have yet to face trial. Max Louarn is currently in France fighting an extradition request from the US government, while Yuanning Chen, who resides in Shenzen, China, has not yet been apprehended.
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