If there’s one thing I remember from my criminal law class, it was listening to the audio recording of the “(Hold Your) Wee for a Wii” contest. While I find the latest lawsuit involving a video gaming device to be not nearly as upsetting in its tragedy, the plaintiff, and those who empathize with him, may disagree. In a recently filed lawsuit, a gamer from San Jose, California is challenging a Nintendo Wii system update that disables access to unauthorized third-party programs like the Homebrew Channel.

What drove Erik Estavillo to file a lawsuit, you ask? He is upset about losing the ability to use a program that would unlock the character Rosalina in Mario Kart Wii, as, ordinarily, a player needs to have a Super Mario Galaxy save file on the Wii in order to unlock that character. We’ll take his word for it.

As his cause of action, Estavillo alleges that Nintendo is ruining his constitutional right to the pursuit of happiness. Our forefathers are either rolling in their graves or cheering him on–Rosalina is said to be quite the “popular” avatar.

According to Game Spot, the plaintiff’s complaint states, “In federal terms, the plaintiff who relies heavily on video games for happiness, would like the federal court to decide if Nintendo is interfering with certain player’s pursuit of happiness, which is stated in the United States Declaration of Independence.” It continues, stating that the Declaration of Independence was adopted on July 4, 1776, and quotes the portion dealing with the unalienable rights to “life, liberty, and the pursuit of happiness.”

Damages? Another good question. Estavillo wants $5,000 from Nintendo for his “injuries,” and, as equitable relief, an injunction preventing Nintendo from blocking access to the Homebrew Channel, the program he used to unlock Rosalina.

Estavillo is also suing Microsoft, alleging that he cannot afford the $100 fee Microsoft would charge him to fix his Xbox after it suffered the “red ring of death” failure. This portion of the suit claims the plaintiff’s Xbox 360 is “only one of two ways in which he relies on to socialize,” as he suffers from depression, obsessive-compulsive disorder, panic disorder, agoraphobia, and Crohn’s disease. He is asking for $75,000 from Microsoft due to “the stress put on [him for] having to find a way to acquire a new Xbox 360 system and the sadness he will have in the meantime of finding one he can afford.”

This is not Estavillo’s first go-round in a courtroom; in September, a federal judge dismissed a First Amendment lawsuit he brought against Sony because he had been banned from the PlayStation Network. That decision is currently on appeal.

Maybe it’s time to rethink the idea that the Wii or Xbox makes the perfect Chrismakkah gift.

— Nicole Soussan

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