Nintendo has responded to a motion to dismiss previously filed at court by the operator of the popular site RomUniverse. The game company accuses the site of brazen and mass-scale copyright infringement and stresses that the site's operator is not protected by a "safe harbor" or "first sale doctrine" defense.

In September, Nintendo filed a lawsuit against the game download portal RomUniverse.

The website, which also allows users to download movies and books, stands accused of massive copyright infringement, including that relating to many Nintendo titles.

“The Website is among the most visited and notorious online hubs for pirated Nintendo video games. Through the Website, Defendants reproduce, distribute, monetize, and offer for download thousands of unauthorized copies of Nintendo’s video games,” the Japanese gaming giant wrote.

RomUniverse profited from these copyright infringements by offering premium accounts that allow users to download as many games as they want, Nintendo further alleged.

The site’s operator, California resident Matthew Storman, is not backing down, however. He decided to defend himself in court and responded to Nintendo’s claims last October through a detailed motion to dismiss.

Storman didn’t deny that he is involved in the operation of RomUniverse. However, he sees himself as a Service Provider, who is not part of the ‘forum’ itself. On the contrary, the admin argues that he’s protected by the DMCA’s safe harbor provisions.

In addition, RomUniverse’s operator said that Nintendo is not the owner of the files and therefore has no standing in this case. Citing the First Sale Doctrine, Storman argued that those who buy games have the right to sell, destroy, or give them away.

“The First Sale Doctrine permits non-copyright or trademark owner to dispose of their copies as they see fit. The Plaintiff does not own copies on websites,” Storman wrote.

Late last week Nintendo responded to the motion to dismiss, describing is as wholly inadequate. Storman’s arguments “completely miss the mark” and his “smattering of passing references to other legal arguments are similarly unavailing,” the company counters.

Nintendo points out that Storman’s affirmative defenses are not supposed to be pled in a motion to dismiss. Looking beyond this procedural issue, the game company notes that they would not work either.

Starting with the first sale doctrine defense, Nintendo points out that this doesn’t apply to mass copyright infringement. It only allows an owner of a lawful copy to dispose of an individual copy of a work.

“Mr. Storman is doing much more than simply distributing any copy of Nintendo’s copyrighted video games he many have,” Nintendo writes.

“Instead, he is reproducing the video games, creating derivative works, and distributing hundreds of thousands of those derivative works. The first sale doctrine does not permit such blatant infringement.”

The DMCA safe harbor defense doesn’t work for Storman either, Nintendo notes. While RomUniverse’s operator didn’t specify which of the four safe harbors he relies on, it appears to be the one related to storage providers.

This safe harbor doesn’t apply, Nintendo says, as Storman himself uploads, organizes, and catalogs infringing content. That alone is enough to lose safe harbor protections. In addition, the operator also receives a direct financial benefit that can be linked to the infringing material.

In the motion to dismiss, Storman highlighted that Nintendo sent him DMCA notices, which should confirm that he indeed has safe harbor protection. However, the game company counters that these notices are irrelevant. A service operator itself has to make sure that it ticks all the boxes when it comes to safe harbor eligibility.

All in all, it appears that by defending himself, Storman’s motion to dismiss is not as strong as he might have hoped. The matter is now in the hands of the court which, at the time of writing, has yet to rule on the matter.

Meanwhile, RomUniverse remains up and running and Storman continues to request financial support for his legal battle.

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A copy of Nintendo’s response to Storman’s motion to dismiss the complaint is available here (pdf).