The beginning of the Pokémon franchise began in 1996 when Nintendo released Pokémon Red and Blue for Gameboy. Since then, 270 copies of Pokémon-related games sold worldwide1 and, today, Pokémon’s net worth weighs in at about $15 billion.2 With Pokémon’s twenty-year anniversary underway, the franchise created two new games for the Nintendo 3DS (Pokémon Sun and Pokémon Moon) that will be released on November 18th in the United States and Japan.3
On October 27th, 2016 Nintendo announced that Pokémon Sun and Moon pre-orders reached a “historic milestone”4 These two games now hold the title of being Nintendo’s “best pre-selling games of all time.”5 The games’ pre-release demo topped 3.5 million downloads from the 3ds eShop within the first week of its availability.6 The gaming industry utilizes demos as a channel that promotes brand exposure harnesses fan excitement with the end goal of encouraging demo-players to purchase the game. Unfortunately, this demo became available to both Pokémon Fans and game-hackers alike. Within the first 24 hours of the demo’s release, hackers “datamined” the demo and leaked all sorts of information to online forums not yet publically shared via the official Pokémon media platforms. The issue is whether hackers who leak any unauthorized and unowned data of a game (1) can be held liable under the Computer Fraud and Abuse Act (“CFAA”)7 and; (2) whether the game’s rightful owner is entitled to recovery if she can prove that such hackers’ leaks deter fans from purchasing her game.
A hacker is, by definition, a person who “illegally gains access to and sometimes tampers with information in a computer system”8 Hacking constitutes an illegal act per the CFAA (18 U.S.C. Section 1030(4) as long as the plaintiff can show that the defendant (1) intentionally (2) accessed information from a protected computer involved in interstate or foreign commerce that (3) caused substantial damage.9 I argue, however, that gaming consoles are also protected by this Act when intentional actors leak a game’s confidential information to the public. The court in U.S. v. Mitra10 stated that the term “computer system” cannot be narrowly interpreted to mean only computers; the court stated that modern technology forces legislatures to write broadly-worded statutes that the courts must then apply to the facts of a case unless expressly excluded in Section (e)(1) of CFAA.11
Today’s gaming consoles, like the 3DS, are closer to computers than the listed devices in the CFAA’s exception clause because of these consoles’ ability to connect with the Internet. The Pokémon Sun/Moon demo could not be downloaded without Internet connection to the 3DS eShop. Furthermore, the process of “datamining” itself requires using a computer in addition to the gaming console onto which the demo is downloaded12 It is clear that at least in some aspects, the Pokémon publishers maintain a cause of action so long as modern gaming consoles legally constitute computers as defined in the CFAA.
http://moneyinc.com/pokemon-franchise/ [https://perma.cc/S55J-TBRY] (noting that in 2014, Pokemon released an official statement claiming it received $1.5 billion per year). If interest rates are fixed at 10%, that makes Pokemon’s net worth around $15 billion.↩
Id. (mentioning that Nintendo did not release actual statistics with this statement).↩
18 U.S.C.A.§§ 1030(a)(2), 1030(g).↩
U.S. v. Mitra, 405 F.3d 492, 496 (7th Cir. 2005) quoting 18 U.S.C.A Section 1030.↩
Id. at 495.↩