Nintendo Had a Good Week in the Courts

Remember the last time Nintendo won a big lawsuit? The ruling was a fantastic outcome for them, but a disconcerting one for consumers, regardless of how some in the latter group thought it was good for them too.

Nintendo took LoveROMs and LoveRETRO to court after claiming their roms of old Nintendo system games promoted piracy, and won. This worked out fine for Nintendo, and their ostensible ability to resell old titles on the Virtual Console (something they’ve since halted in favor of offering free games with their online service), but it was very bad for the future of game preservation. Publishers rarely resell all of their old games, but those unavailable on digital stores can be played through emulators with ROMs. Sites with old game ROMs still exist, but they’re not as common as they were thanks to the result of the case putting the fear of God into them. This included Emuparadise, formerly the biggest library of ROMs online, which deleted all of them after Nintendo won their lawsuit.

Now, a new case Nintendo just won could also be bad news in the long term for anyone who purchases digital games on any gaming platform.

This lawsuit started after the Norwegian Consumer Council took Nintendo to court upon receiving several complaints from consumers about the inability to cancel preorders on the Nintendo Switch’s digital eShop in Norway. You know how you can cancel orders on an average retailer website after you change your mind? You can’t do that on some Nintendo eShop stores in certain territories, meaning a preorder is locked in once it’s made. The German Consumer Protection Authority followed with their own lawsuit after hearing complaints in Germany.

As implied above, both courts ruled in Nintendo’s favor. This means it’s perfectly legal for Nintendo to not include an option to cancel preorders. Norwegian officials were reportedly certain they had a good chance of winning this case, as the lack of the cancellation option was thought to be a violation of existing consumer protection laws established in Norway and by the European Union, of which Norway and Germany are part of. The courts clearly disagreed with their interpretations.

This means any console manufacturer or digital game storefront owner on PC is free to let consumers preorder games with no option to cancel them. It’s tough to emphasize how bad this could be. Developers and especially publishers like enticing consumers with preorder bonuses, and many in the gaming audience like to literally buy into the excitement by preordering. But heaven forbid they change their minds following this lawsuit.

This ruling might only apply to Norway and Germany, though it’s not as if other countries haven’t had similar issues. The PlayStation Store in North America wouldn’t let consumers cancel preorders for the longest time, and it wasn’t until this past spring when Sony allowed for refunds after receiving deserved complaints for years. Sony, notably, was never taken to court over it. Given the increasingly conservative lean of the federal judiciary in the United States, which has resulted in several judges who believe corporations are people being appointed to lifetime positions, I dread how they would have ruled.

Norwegian and German officials plan to appeal to higher courts, but it could take up to 18 months for them to hear the case, let alone rule on it. From here on, it would be best if Switch owners in countries where eShop orders can’t be cancelled resisted the will to preorder anything on the eShop.

The second case thankfully isn’t as bad. Here, a patent case previously won by iLife Technologies over the apparent trademarking of the technology and ideas used for the Wii Remote has been rendered invalid. The jury previously ruled in favor of the plaintiff in 2017, but federal judge Barbara A. G. Lynn reversed the decision, saying that iLife’s original patent didn’t specify what it was actually for. The patent itself didn’t describe anything new, and contained only abstract ideas. This case was one of many that involved Nintendo being sued for allegedly stealing ideas for the Wii Remote, including others from iLife, but this was the only case where the plaintiff came out victorious. That’s now no longer the case.

This one seemed to be the work of patent trolls who tried to get easy money by claiming Nintendo stole their product, which always tends to happen when a new idea takes off on the market. This result is actually good for Nintendo and the consumer, even though one particular party here was more jubilant about the results.

It’s evident this lawsuit was years in the making, since the Wii Remote (and Wii itself) are no longer supported or available on the market. iLife Technologies also no longer exists, and its former CEO is now the head of Sleep Methods Inc., a company that monitors sleeping disorders. Nintendo won’t have to turn over that $10.1 million now.

It’s often bad news for the gaming audience whenever Nintendo wins a big lawsuit, and the one involving eShop preorders above is an addition to an expanding list of court cases that spell bad news for the future. This likely won’t get any better.