Game over, Dudley.
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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:

  • Logo
  • 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, 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
 

Yay, paperwork.

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.)


Aftermath

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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Reader comments

The Rise & Fall of a Windows Phone Marketplace Scammer

50 Comments

Does this really warrant a story? I mean really, i for one would love a few emulators on the market place.

I've backed up many roms myself simply because the shelf life for catridges i have bought is often measured in years and quite honestly, any company who wants to sue me for backing up an NES or genesis cart because i want to play the games to this day should be shot, and especially so if they demand i rebuy the same games just to play on modern machines.

I mean really, I too would love a few emulators on the marketplace.  But that does not give Duddley, or anyone else the right to steal other people's work.
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.
Thanks Rafael!

In your  haste to disapprove of Rafael's actions, you shot yourself on the foot!!
"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!
--Ninja1043 :)

Yes I think it did warrant the story.what he was doing is wrong. I for one don't care to see the MP flooded with this sort of trash. Bravo

I'm telling you, there's a gold mine sitting there.  I don't like "breaking the law" but I love playing old school games as much as the next guy.   If there were an emulator for WP7 and for XBOX + a legal method of downloading the games, I'd buy into it.  I'd pay $0.99 and snatch up a couple dozen games.  I know there are lots of issues with that though (getting rights, companies that don't exist anymore, language versions, etc).  I'm just saying, I'm more than willing to pay a small fee to legally play those games. :)
 
This applies really to any legacy system SNES, N64, Genesis, and so on.

The point was not eliminating emulators, the emulator used for those games was stolen he didn't make it himself. And like other platforms were emulators are available they didn't come with the roms that's also an issue seeing as he's selling merchandise that belongs to Nintendo and making and making a profit off of code that doesn't belong to him its like me stealing you iPod and selling it on eBay

Good work Rafael!

Now go back dissecting windows 8 consumer preview and give us more under the hood treats :-)

Great Job!  You've won the battle, however it remains to be seen how this war will turn out.  It is Microsoft's war to fight though and they had better do so.  I don't want to see junk apps, spam apps and stolen content on the marketplace.  They need to keep it clean.   I'm all for new apps and a rapidly expanding marketplace but when it comes right down to it, I'd rather have 1,000 quality applications and nothing else than have 1,000 quality applications mixed in with 30,000 junk apps or stolen content like this (regardless of its quality).  Keep it clean Microsoft and make it easier for content owners to report this sort of thing!

I really wish some manner of legal action would be taken against this jerk (Dudley) over this in order to discourage this sort of thing.  The fact that he made money off stolen content is wrong.  And while this action got the current content removed, does it do anything to prevent more from coming through in the future?  I wish they would make an example of him to discourage other bottom feeders from following in his footsteps.

Awesome job! 
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

Woah it's ridiculous the amount of bureaucracy u have to go through to get app that clearly violate several of their own certification rules and US law. I'm glad u pushed through and got them removed.

Thank you, Rafael. One of the reasons I love Windows Phone is the Marketplace it isn't the utter chaos that the Android app store is. Thanks again for helping keep it a nice neighborhood.

To all the "why the hell does it matter" people... What if you walked into your local mall, grabbed a 64" plasma TV off the self without paying for it, went to a flea market with it, setup your own store and sold it there? You deserve it because you did all the work to steal it? Of course not.
 
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.

Lancelot Software said "What if you walked into your local mall, grabbed a 64" plasma TV off the self without paying for it, went to a flea market with it, setup your own store and sold it there? You deserve it because you did all the work to steal 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.

i liked your story, it was nice all what you did.

i only disagree with "I’m still concerned that Jesse Dudley kept the money he stole from others"

do you mean Steven Hartgers?? becuase he didn't stole anything from anyone but Steven Hartgers, which was code for an emulator and not money.

he only used that stolen code to release emulated games not paying royalities nor licenses. which is different. then if people bought them, it was people choice, yeah people choice! if those games worked (which im not sure) then i dont see any problems.

my point? yeah im the ones who dont agree people charging for emulators or roms. but is BeGood1 Soft (sonicjewels) better than Jesse Dudley?? i mean, that developer IS CHARGING for something illegal, because without illegal roms that "sonicjewels" would be NOTHING.

or maybe you think BeGood1 Soft and Nudua are not bad because they are suppose to have written all the code for their emulators (which im not sure about)?

at least vNeslight isn't charged like SonicJewels. but the SJ developers are getting money for others hard work like SEGA. isn't that steal, becuase he isn't paying royalities nor licensing any game or something.
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..

Just because there are no legal roms on the internet does not mean there are no legal roms in existance. US copyright law prevents people in the US from copying roms for personal/private use, the same doesn't necessarily apply to people in other countries (example Canada; where I can create a digital copy of a DVD that I own for use on my iPod provided I don't circumvent any digital locks, which is illegal in the US). No one makes games for old consoles like the NES anymore, but there's nothing illegal in writing new, original software for that platform & distributing it for profit or not. Thus emulators are perfectly legal provided their code doesn't violate copyright.

I would love to see some official Nintendo/Sony Playstation games make their way to the WP7 market. If Nintendo made a "Player" app with in-app purchases for buying legal access to the games, that would rock.

Call me old fashioned, but to those wanting to pay for the classics, you should consider the 3DS. I assume most would prefer an all-inclusive hardware solution, but their downloadable options are very robust and full of classics, and the royalties go where they belong:)

Weird.. In the game section you guys promote the Sega emulator..

And we will continue to do so. Did you read the post and what it was about?

SJ7 doesn't come with any ROMs, the devs are charging for the emulator itself which they've deveoped for WP7 (and they've added sound).

This wasn't a post against emulators but against charging people for ROMs and someone else's emulator. Read it over again.

I want to add that emulator sound on XDA is a huge accomplishment. Previous emulators, like XNA SharpNES, failed in this area due to the lack of direct sound buffer access. I'm curious to see how these guys pulled it off.

so you agree promoting and accept someone developing and charging for an Emulator like SJ7, you know something that hurts other people business, in this case, video game companies like Sega/Nintendo? Dudley did alot of bad things, but still its not like SJ7 is more legal and better than what Dudley did, specially since SJ7 is a paid emulator.
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.

Three things:

  1. It's degrees. What Dudley did was way worse, imo. He wasn't a developer. He took someone else's free emulator, put in a ROM and submitted to the Marketplace and charged people, though he did no work. Rinse, repeat.
  2. SJ7 was *developed* by that developer, requiring a lot of hard work (built off of other's hard work). It's unique software that you could not get anywhere else. He's including 3 ROMs that are in the public domain. Yes, you have to manually add ROMs (illegal) but the emulator itself is NOT illegal.
  3. Rivera is entitled to his opinion on this matter, which is why he wrote this. It doesn't mean we all have to agree with it or take it to its logical end (i.e. "all emulators are bad!"). I agree with what Riveara did here for this case but I don't agree with you that all emulators are bad, sorry.

So you can make this a moral arugument ("emulators are bad things!") but you cannot make it a legal one.

Rivera's position and method here were legal actions, nor necessarily moral. This  is why we're okay with emulators--we're not here to tell you what is right or wrong, just what is legal/not legal. 

@xKophsx its not the same when it cones down to it you pay for an app that can be used to run those roms the developers are making something what you tend to do with it is on you. Its the same as selling a bong or a pipe 90 % of the time the people purchasing them will be using it to smoke pot, but that isn't going to stop then from legally selling the bong or people admiring the craftsmanship of it the difference in duddlys case is he sold the rom and stolen emulator which in the previous analogy is like selling weed publicly to the masses but also selling stolen bongs with it

Awesome work doing a job that wasn't yours. Did this guy bang your gf or something because you seem to take it quite personal.

Actual reporting from a blog site, bravo.

I do agree, the law needs some changing, as games I own from the NES/SNES era no longer work and are no longer for sale. I still want a way to enjoy my property. However reselling ROMs, yikes, lets bring down the WWW.

Thank you! It was so irritating seeing those games on the marketplace and nothing was done about it.

Wow! I kinda understand why you did this... actually I dont understand why you did it. If MSFT and Nintendo didnt care, I dont understand why you cared so much to do this?

Because he was taking people's money. These people thought they were getting a classic game experience and instead got stolen emulator code with no sound.

Jeleousy probably. For me, if Nintendo didn't care, then why bother. I don't understand the self congratulatory tone of the "article". Barely worth a post, or the effort. I would have let the guy get on with it, its Nintendos fight.

While I agree with the reason & intent of your actions, I also agree that it was more than was called for.
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.

No people get it, they just wonder why did Rafael smack him down so hard. I'm sure there's all kinds of crap on the marketplace, yet this guy got handed down Punisher vengence! What he was doing was obviously wrong, I just wonder was this a one time thing or the first wave of vigilante marketplace justice

It's over-acting...the fact that you knew the former dev of the app made you act like a super-hero...even when you know that neither microsoft nor nintendo felt injured by what you call a "crime", you play the little dictator and apply your own vision of justice using the same weapon US government use to stop web freedom (see? why didn't you stopped those guys from megaupload before FBI man?)...i really hope we'll never meet.
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.

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Sadly, he's back again :/
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 <em>reportapp@microsoft.com</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.