By Robert J. Romano, JD, LLM, of St. John’s University, Senior Writer
In a noteworthy intellectual property enforcement case, Nintendo, one of the country’s leading developers and producers of video games and video game consoles, “succeeded” (more on that later) in its lawsuit against notorious streamer Jesse “EveryGameGuru” Keighin. Per Nintendo’s five count complaint filed in U.S. District Court for the District of Colorado on November 6, 2024, the gaming company claimed that Keighin not only infringed its copyrights by copying and publicly performing its games, but also “trafficked” in unlawful circumvention tools by promoting and linking to Switch emulators and by pointing users toward Nintendo’s proprietary cryptographic keys or equivalent circumvention material.[1]
By way of background, beginning in 2022, Keighin obtained leaked copies of Nintendo Switch games and livestreamed them ahead of their commercial release date. The list of games included: The Legend of Zelda: Echoes of Wisdom, Super Mario Party Jamboree, Mario & Luigi, Brothership, and Pikmin. Nintendo alleged that Keighin not only streamed these games on roughly fifty occasions before they were available to the public but that he also directed others on how to make similar infringements possible.
Despite Nintendo’s dozens of takedown notices, as required by Section 512 of the Copyright Act, Keighin continued to stream its copyrighted works and, as alleged, thumb his nose at Nintendo and the law.[2] For example, on October 24, 2024, after several platforms had taken down Keighin’s unlawful streams due to Nintendo’s enforcement actions, Keighin sent Nintendo a letter claiming that he has “a thousand burner channels” to stream from, that he “can do this all day” and that “you might run a corporation, I run the streets.”[3] Additionally, after Keighin’s monetized YouTube account was shut down, he began adding a CashApp handle to his streams, seeking an alternative way to monetize his unauthorized streaming of Nintendo’s games. Keighin also posted links to repositories of pirated games encouraging his followers to unlawfully reproduce Nintendo’s games. What Keighin didn’t do, however, is defend himself in court because the case ultimately ended with a default judgment being issued against him rather than a contested trial.[4]
As Judge Gordon P. Gollagher outlined in said default judgment, he awarded Nintendo damages in the amount $17,500.00 dollars and issued an injunction barring future infringement and prohibiting Keighin from streaming Nintendo’s works or trafficking in tools that circumvent Switch security measures.[5] The court declined, however, to grant Nintendo’s broader request that all alleged circumvention devices in Keighin’s possession be confiscated and destroyed, characterizing that demand as overly vague and unsupported by concrete evidence about the specific tools used to obtain the leaked games.
What is important about this case is that even though it resulted in a default judgment, it illustrates the evolving intersection between content creation culture and traditional intellectual property law. In this era where livestreaming is an integral component of the gaming culture, with many publishers actively encouraging streamers to broadcast gameplay as a form of marketing and community engagement, this informal balance operates within a set of boundaries.
The court’s ruling in this matter reflects a balancing of those boundaries in that it supports what copyright law is designed to protect: rewarding creativity and investment by granting exclusive control, while at the same time noting that the accessibility of digital files or content does not equate to legal permission. Pre-release leaks, even if widely circulated online, remain protected by copyright. Broadcasting those materials potentially exposes individuals to lawsuits, financial damages, and reputational harm. Compliance with release dates, platform policies, and publisher guidelines is not merely a matter of courtesy but of legal necessity.
With that, however, Nintendo has filed lawsuit against a second streamer alleging that he engaged in a series of copyright violations. This time Nintendo claims that James C. Williams, also known as ‘Archbox’, “has been, and continues to be, damaged as a direct and proximate result of Williams’ conduct,” which it claims includes pirating Switch games, promoting distribution across the internet, and trafficking circumvention software. Nintendo is seeking $4.5 million in damages.[6]
