The Rise & Fall of a Windows Phone Marketplace Scammer
The name Jesse Dudley should be no stranger to the Windows Phone community by now. I mean, WPCentral has been writing about this Marketplace scammer since September. But rest assured you won’t be seeing another post on this subject; I’ve pulled all of his illegal NES games off the Marketplace. Game over, Dudley.
Read what went down, after the break.
Thou Shalt Not Steal
Back when you were a little kid, you may remember Mom or Dad teaching you not to take things that don’t belong to you. (This teaching was oft reinforced via The Belt.) Copyright law at its core is exactly that. Jesse Dudley missed this teaching though and decided it was okay to steal a bunch of NES games, emulator code, and turn it on the Marketplace for a profit.
Dudley’s NES games on the Marketplace comprised of the following stolen and therefore copyright infringing components:
- NES Emulator (failed SharpNES attribution)
- Digital copy of retail NES game (ROM).
One widely held myth is that video game ROMs are legal to make and/or use if you own the original cartridge. In the United States, this is completely untrue and has been since 1983, as established in the case of Atari v. JS&A in 1983.
My initial attempts to get these games off the Marketplace, through Nintendo and Microsoft, failed. And without owning any of the stolen content, my hands were legally tied. I nearly gave up.
Can I Has Copyright?
Having struck out with both Nintendo and Microsoft, I decided to focus on the emulator itself. Further research revealed Dudley didn’t just fail to attribute SharpNES developers per the BSD license – he lifted a modified copy of SharpNES code from XDA Developers member Steven Hartgers (fiinix)!
Knowing Hartgers was active on XDA Developer, I knew getting a hold of him would be easy. But a few emails in, I discovered he was in another country. And I knew availing U.S. Copyrights across country borders would introduce a bunch of legal complexities. But after more research, I confirmed copyrights – like any property – can be transferred in part and/or in whole. Hartgers trusted I wouldn’t take his work and build a Fortune 500 company from his assets, so he signed the transfer paperwork and boom – I was the legal copyright holder for all of Hartger’s SharpNES code changes.
Here Comes The Pain Train, Choo Choooo!
Now with the power of the derivative SharpNES code copyright in hand, I felt like a kid with a new set of cardboard boxes. I now possessed the power to avail myself of my newly acquired rights under specific U.S. Copyright law. Yep, I’m talking about that infamously bad-ass Digital Millennium Copyright Act (DMCA).
The DMCA is a copyright law that includes many provisions, such as those that make it illegal to circumvent copyrighted work protections (e.g. DRM). But it also has safeguards in place to protect websites and service providers from copyright infringing lawsuits based on user submitted content.
For example, Twitter solicits millions if not billions of tweets from users around the world. It’s inevitable that its users illegally tweet copyrighted content. To avoid the onslaught of folks looking to sue the pants off of Twitter for housing that material, Twitter implemented the requirements listed in the DMCA to qualify for protection. One of these requirements is to expeditiously respond to copyright owner requests to take down infringing content. These requests are often referred to as “take down notices”.
Per the Windows Phone Marketplace FAQ (opens in new tab), I had to draft a takedown notice and fire it off to Microsoft’s designed DMCA agent. I did just that.
Having sent notices before, I kept my eye glued on the Marketplace, waiting for the applications to go poof. Instead, I received an email from Microsoft 9 hours later, asking me to fill out some cockamamie Microsoft Word form...
The Slow Moving Microsoft Machine
Figure: A snippet of the four page Content Infringement Complaint form I had to complete.
Instead of acting immediately on my DMCA take down notice, Microsoft sidelined me to fill out paperwork to reformat my official request. The four page form used those pesky data fields and was designed to report one application at a time. With 14 applications to report, I refused to fill out the form 14 times. So after a back and forth exchange with Microsoft, they agreed that I could squeeze all 14 applications onto one form. Reluctantly, I filled out the paperwork and sent it in.
I waited impatiently. Days and days had gone by. Nothing seemed to be happening. But finally, a week later, Microsoft pulled Dudley’s applications from the Marketplace. I jumped up from my chair and yelled at my monitor in a Rainn Wilson-like voice: “Shut up, crime!”
(The team actually screwed up and missed one of the applications in my paperwork. And they let enough time elapse allowing Dudley to wiggle another infringing game onto the Marketplace. A quick follow up with more paperwork, however, fixed that problem.)
Having successfully stopped the illegal sale and distribution of Hartger’s and Nintendo’s hard work, I feel pretty good about myself right now. But the process was Ikaruga-hard and I’m still concerned that Jesse Dudley kept the money he stole from others. I’ll continue working with Microsoft on improving this process, but do know it does work – if you’re persistent enough.
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I agree with this: http://www.marknoble.com/blog/index.php/2012/02/06/monkey-with-a-ban-hammer/
I used to back up CDs of copyrighted music because I didn't want to buy the same CD over & over due to scratched/broken discs. Would you thisk it's ok for me to upload that music to Marketplace and profiit from it? Of course not. No difference here.
Rafael jumped through a lot of hoops to make sure the right thing was done. Cudos to him. I for one am glad he went the extra mile to take this creep down. I'm also glad someone with his integrity is in a position to get Microsoft to pay attention th these types of issues.
You want pirated material and a wild west envirnoment in the Marketplace? Go get an Android and the headaches/freeze-ups/maleware that come with that level of policing.
"and especially so if they demand i rebuy the same games just to play on modern machines."
This is exactly what Jesse Dudley was doing!!! He was packaging ROMs and an Emulator! It is my believe that if you wanted more games, you'd have to buy them separately for another fee.
So, here I ask: What the hell are you fighting for? There are plenty of Emulator in the works, including a SEGA one and a GB one.
There is also vNES which it's 1.0 iteration is going to have Skydrive integration, my most awaited build yet. So the lack of "Emulators" is not something we can complain about.
Oh and next time, before ranting, RTFA. Thanks and have a nice day!
This applies really to any legacy system SNES, N64, Genesis, and so on.
There are a few developers that should be burned like this guy, legal or not, one guy just places 'android' loving apps up that don't work but the description is like a fanboy letter to the droid. So weird. Forgot the kids name-he should be kicked in the shin for being a dbag
Why is it any different for something that is intangible like software? Thousands of man hours goes into writing an app/game, no matter how big the company is. I would be PISSED if someone reflected my code and sold it on iOS or Android, why? Because they didnt ask me if it was OK or offered me a cut of their sales. How hard is it really to say,"hey, I was thinking you could really expand your market visibility if you did x,y, or z. What if I took your app and did the work to get it onto another marketplace and give you X amount of money?"
I'd probably say yeah because I did most of the work already and then license it to another platform...but taking it outright without permission or recognition (if CC) is wrong. Thank you Raf for going to such lengths to get this guy. I've been watching his publishing for a while and couldnt fathom how he was still getting away with it.
The retailer who was no longer able to sell the 64" plasma TV would be the person harmed because he is no longer able to use or sell the physical object that was taken.
This situation is a little different though because the Emulator provider was not deprived of his ability to sell (or in this case, give away for free his emulator).
If I walked into a retailer and, at my own expense, built an exact replica of one of their products, then carried it out of the store, no sane prosecutor would charge me with shoplifting.
it doesn't even have sound. or for example people at Justin.tv that get money from ads streaming emulated games, are they better than Jesse Dudley?. aren't they stealing money from the developers/publishers from those roms? yeah BeGood1 Soft dont give any r you made a good work taking down dudley games, i dont complain about. but you make it seem like Dudley is the bad person and others like BeGood1 Soft aren't. specially since he is getting money from it...
yeah you might say "he doesn't distribute any rom" BUT he made an emulator, charging it for it, and of course you need illegal roms to make it work. only because developer doesn't give roms himself, it doesn't mean it make it less illegal. i dont know. i liked the article but i just didn't like the end... since think ANY emulator is illegal and shouldnt be in marketplace based "whats illegal and whats legal", yeah i think BeGood1 Soft isn't better than Dudley, for example. Dudley did worse stuff since he stole the emulator code, but it doesn't change emulators = illegal. since there is no legal roms on internet..
and emulators = to play ilegal roms, or were games you played in your video legal?, dont pretend emulators are good, they aren't meant to.
The legal responsibility had already been satisfied by informing the copyright owners. The subsequent legal action was their choice to pursue or not. Beyond that only a social responsibility remains, such as discouraging people from unwittingly supporting an immoral practice, which was done by posting about this in the first place.
Still, it's nice to see justice prevail. This outcome is preferable to letting the culprit continue profiting from his misdeeds.
If you had a little real wp7 user interest, you would fight for all those games bought by customers and erased from the marketplace by microsoft without any warning/refund : that's what i call a theft
sorry english isn't my native language.
I only stumbled across this scammer since his "Pocket Monster" game was in the New list on the Marketplace listings on my mobile.
I was pretty shocked to see he doesn't disguise his copyright theft by using pictures of Pikachu, Contra, Tomb Raider, etc along with screenshots of trully famous NES titles from my youth.
I've already submitted complaints to http://<em>firstname.lastname@example.org</em> as well as the official Windows Phone UK twitter account (The twitter account has asked me for details and I've sent them on).
Jesse's page can be found at: http://www.windowsphone.com/en-GB/publishers/Jesse%20Dudley
I urge everybody to please report this scammer. I can't believe the gall of using names and screenshots of NES titles to try make a quick buck.