Epic Games To Pay $520 Milllion: A Win For The Rights of Gamers

As this class comes to an end and I reflect on the course, I realize that I was most intrigued by the perspective of the rights of the gamer. I expected this class to focus on the rights of the developers and if the gamer rights would be discussed it would mostly be in the context of consumer protection and advertising. However, our continued discussions on the rights of the gamer particularly when it comes to mods and user-generated content within the game had never been considered by me. As someone who does not partake in creating mods, I had never considered the rights of these individuals. However, I do understand the purpose of mods and have often used mods to make games like Stardew Valley more enjoyable or easier to use. The fact that it made my experience, and many others more enjoyable lends credence to the fact that a modders work adds some form of value to the game. Clearly then, it is hard to say that this individual did not contribute to the game, yet traditionally avenues like copyright protection have shown problematic in getting these modder’s legal rights and protection. Additionally, I know I personally feel some form of attachment to things I have created in games. For example, my girlfriend and I spent a lot of time over the pandemic creating an island in Animal Crossing. We’ve caught virtual fish, dug up artifacts, and constantly upgraded and changed our virtual house and added to the museum. If I were to lose this progress, I know I would be quite annoyed and would hope for some remedy or way to get it back. While the level of harm in this would obviously not be the same as if my actual house burnt down or I lost an heirloom my grandmother gave me, there is still a clear loss to me of something I created. Further, gaming can have extreme financial consequences on people’s lives, as evidenced by a popular fortnight streamer, Jarvis, being permanently banned and losing his livelihood, a life-changing situation for him. These losses are not insignificant and deserve to be remedied just as much as any other harm and or loss.

In taking this course it becomes apparent that gaming technology and interactions within these games can be very influential outside of gaming. Take the example of VR and AR discussed in class, using VR technology can greatly improve a lecture for students, and we are also seeing sports teams and doctors practice their skills using this technology. From a personal perspective, I can see using VR in the future to help with testing anxiety for law students. Recently, there has been research in the area and strong findings that using VR to simulate a testing environment can lead to reduced levels of stress on test day.

It was also interesting to see the mix of discussion posts that my peers wrote. I was most captivated by Rares’ discussion on the Valorant and League of Legends Esports contracts, free agency, and avoiding contract jail. It is fascinating to watch these leagues grow and constantly change as they are further developed. As someone whose first degree is in marketing and who worked in the industry for a bit, I have always worried about subliminal advertising, dark patterns, and loot boxes in video games. Sara’s article on Walmart and Roblox articulates my fear perfectly as it shows yet another example of how marketing can be used in manipulative ways that have financial and psychological consequences on gamers, in this case, children. This is further evidenced by the recent news on December 19th that Epic Games, maker of Fortnite, has agreed to pay a total of $520 million to settle US government allegations that it misled millions of players, including children and teens, into making unintended purchases. This was found to be in violation of the Children’s Online Privacy Protection Act (COPPA) by gathering the personal information of kids under the age of 13 without first receiving their parents’ verifiable consent. While this case is in the context of the data protection of minors, hopefully, it can act as a stepping stone in informing all future litigation around the rights of gamers who are subject to harmful game development through manipulative dark patterns.

Lastly, I was particularly struck by how video games can create complex legal issues that touch on many traditional areas of law. In considering sentient chatbots or complex AR and VR systems I am worried that the law will be too slow to respond to these issues as they come up so quickly and in ways that make it very challenging to plan for and protected Canadians. While somewhat different, the recent crypto crash and FTX blow-up are a stark reminder that technology may be moving so quickly that our current system of law is much too slow to respond. I struggle to see how these challenges can be addressed through our current system of law in Canada and I feel as though a radical change is needed or we will always be playing catch up. However, I struggle to see what this change would look like given the fact that it is virtually impossible to predict how new forms of games and technology would manifest. Take for example the Reignmakers NFT game that Jakub and I presented on. Clearly, Canadians are being harmed yet this game could have never been imagined before blockchain technology came to be. Additionally, the Canadian Government is unlikely to respond given the transnational and jurisdictional issues present with gaming and the internet. My only thought is that there needs to be some type of international regulatory body working with developers as they create these games so that these challenges can be addressed in a proactive way as the games are being created. It is not enough to allow a company like EA Sports to use loot boxes in their games for a decade and then look to address it after the harm has already been done. I know I myself spent too much money of video game loot boxes as a teenager and even our professor has mentioned that he spent more than he was comfortable with on a racing game that had in-game purchases. It would therefore seem that many Canadians across vast sociodemographic groups face harm from video games. Thus, while I am excited by the future of video games, I am also scared that we as gamers will continue to be taken advantage of in increasingly complex and subliminal ways and that our creation rights will not be taken seriously by judges who fundamentally misunderstand video game harm.