Alleged Switch modder takes on Nintendo’s legal might without a lawyer

When faced with a legal threat from Nintendo, most alleged modders, ROM pirates, and/or emulator makers will simply give in to a cease-and-desist demand, reach an out of court settlement, or plead guilty rather than hiring legal representation for what could be a lengthy, costly trial. Then there's Ryan Daly, alleged owner of ModdedHardware.com, who has apparently decided to represent himself as a recent lawsuit brought against him by the Switch maker moves forward. Nintendo says it first approached Daly in March about his site (currently password-protected but archived here) and its sales of modded Switch consoles, console modding services, and piracy-enabling devices such as the MIG Switch card that were pre-installed with popular Nintendo games. At that time, Daly agreed "both verbally and in signed writing" to refrain from these infringing sales, according to Nintendo. It was only after months of Daly continuing those sales and largely ignoring further contact from Nintendo that the company says it was forced to file its June lawsuit in a Seattle federal court. In that initial lawsuit, Nintendo said it "received a communication from a lawyer purporting to represent [Daly]" in June, followed by a message days later that Daly "was in the process of obtaining new counsel." That search for new counsel has seemingly not moved forward, as last week Daly filed a pro se response to Nintendo's allegations, representing himself without any outside legal advice (thanks, TorrentFreak).

In his response, Daly denies every single one of Nintendo's legal claims, either directly with a concise "Denied" statement or with the short explanation that he "is without sufficient information to either admit or deny" the charges. Those blanket legal denials include challenges to some of Nintendo's most basic assertions, such as whether Daly owns ModdedHardware.com, whether he sold the devices and services in question through the site, and whether he ever reached an agreement with Nintendo to cease those sales. Daly's response also lays out the skeleton of 17 separate potential affirmative defenses for his alleged conduct. These range from the relatively routine—fair use exceptions; a plea for arbitration under the EULA; "inadvertent rather than willful" infringement—to some relatively novel legal arguments—Nintendo's "alleged copyrights are invalid"; Nintendo "does not have standing to bring suit"; Nintendo "procured a contract [with Daly] through fraudulent means." As the case moves on to the discovery phase, it's unclear whether any of these defenses can stand up to extended scrutiny from the court. Regardless, Daly likely faces an uphill battle in representing himself against a corporate behemoth that has ample experience bringing its full legal might down against anyone it sees as harming its intellectual property.