The video game industry's a big business -- and sometimes, companies don't see eye-to-eye. And what happens when a dispute goes to court, and gamers get their grubby hands on fancy-sounding legal documents? Why, wild, inane, forum-fueled speculation, of course. That's where California-based corporate attorney and GameSpy freelancer Eric Neigher comes in. Objection! is your one-stop destination to learn what all that legalese means in plain English, straight from someone who knows the twisty-turny language of the law.
Intro
I don't know how many of you went to PAX East this year (I didn't), but they had a panel where audience members were able to ask lawyers and legal journalists questions relating to the law and video games. While many of the questions were pretty prosaic or far too specific to be worth discussing here, a couple of interesting ones were touched on that I think could use a bit more in-depth discussion. So, I'd like to tackle these questions, go over what I think the right answers are (if, indeed, the "right answers" do exist), and get your feedback, dear readers.
The first and most important question is: Why the hell wasn't yours truly a part of this panel? Did they not want me to make all the other people on it look super-ugly and badly dressed by comparison? It's possible; maybe I'm just bitter.
But, apart from that critical threshold query, a couple issues were raised that I think are generally worth a more in-depth look:
1. Is it entirely legal for companies with business models based mainly on microtransactions to target young gamers who may not fully understand that they are incurring a charge when they purchase things with in-game currency? And, if it is legal, will it continue to be for long? Is it something that the government can/should/will regulate?
2. Is it possible that tort law (that is, the ability to sue somebody for some harm he's caused you) will be extended to in-game damages, specifically those that pertain to destruction of property in a massively multiplayer online game that could theoretically be converted to real-world money at some point?
A bunch of other stuff got asked, but most of it was either not very interesting, or stuff I've covered in previous installments of this column. The panelists did a fairly good job of answering these questions, but I want to get into a little bit more detail here, and also infuse my opinion in the responses so you can be sure to tell me how dumb I am in the comments. I love that something fierce.
Facts and Analysis: Question #1
OK, so do microtransaction-sellers have a responsibility to protect kids from exploitative sales techniques? First of all: What the hell is a microtransaction? If you're an MMO fan at all, you know that these games have two basic models for generating revenue: subscription fees and "free to play." The latter is a fancy way of saying "we will allow you to get into the game for free, but in order to get to the really cool stuff, and to stay on the same level of awesomeness as your friends, you're going to have to buy stuff from us. Not expensive stuff. Maybe just a little sword here, or bag of animal feed there. Just the tip. Just to see how it feels."
That's what a microtransaction is: It's that purchase -- usually using some sort of proxy currency -- inside an ostensibly "free" game. Is this legal? Of course. That was never the real question. The real question concerns whether or not it's OK for little Johnny to be subjected to constant pressures to buy things while not understanding that the bill comes out of mom and dad's credit card at the end of the day. Some people have likened the process to cigarette companies targeting ads at young people, but I think that's a load of crap. Yes, peer pressure is a factor; it's also a factor for getting kids to go out for the soccer team at school. That's not, in and of itself, a problem.
What the question is really asking is: Should the government step in and regulate how microtransactions are pitched and handled in-game in the first place? This raises a couple of further legal questions. First, does the government have the authority to do this? And second, if they do, what form should these regulations take?
I think, as far as authority goes, the question would come down to a Commerce Clause issue. The Commerce Clause is a section of the U.S. Constitution that gives the federal government (and its subordinate agencies) the right to regulate any "commerce" among various states. What constitutes (pun!) commerce and what constitutes "among the several states" have been hotly debated questions since the inception of the United States, but ever since a famous case called West Coast Hotel Co. v. Parrish, courts have been more willing to allow the federal government to regulate business and labor practices as long as those regulations are designed to protect the health, safety, and/or welfare of individuals. All of that is pretty amorphous, of course, and the situation here is markedly different from that in West Coast Hotel (which involved a chambermaid suing a hotel for paying her less than the federal minimum wage), so it's tough to say with certainty whether or not regulations would be allowed. Debate is widespread about so-called "net neutrality" and its putative benefits and problems, for example -- with no definitive legal rulings either way. I think it's pretty clear that what's going on here is interstate commerce, so I think it would be susceptible to federal regulation on its face, but you never know.
The larger issue is what those regulations should/would look like, and whether or not it's even a good idea to impose them in the first place. Sure, we want to protect kids, but at what point does that fall under the federal government's purview, as opposed to that of these kids' parents? Many games that are targeted for "exploiting" kids actually do come with a lot of parental safety features, it's just that parents don't employ them. Ultimately, from a legal perspective, courts have been willing to give regulators a lot of leeway when it comes to anything targeting children, but that doesn't mean they won't cross lines.
In my mind, it's something that's easily handled by the market for these games: If parents find that kids are constantly running up their credit cards, they'll either ban kids from playing the games entirely, or start to use the provided safety features. Either way, game companies will be forced to comply with what is in their own business interests (that is, the continued ability of little Johnny -- and maybe his mom) to play these games. Despite the few cases of egregious overspending by some overzealous eight-year-olds, no evidence suggests that this problem is out of control, or even very widespread. And I think the threshold issue has to be: If it's under control now, why get the government involved in the first place?
My take? This one stays the way it is -- no regulation.