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Tariffs and the (Impending) Doom of Physical Games

I’m going to start this post off by saying something that might seem unrelated to this class, but stick with me.

I love books. Over my 25 years of life, I have accumulated around 600+ books – I just counted for your benefit – and I am certain to accumulate many more. I love being surrounded by my books, I love seeing them every morning and every night, I love flipping idly through them, I love writing in my books, and I love lending my books out to my friends.

But – I also have a Kindle. And as much as I adore each and every one of my precious books, I also get a whole lot of use out of my Kindle. I see its benefits: easier to carry, more durable, instant access to any book in the world. But, for the 600+ books I own physical copies of, I only have about 50 books on my Kindle, most of them downloaded through the Kindle Unlimited subscription with little thought and less care.  Indeed, I can say with confidence that my Kindle will never replace my beloved library.

But what would happen if I stopped having a choice? What if digital downloads were the only way that I could access and read books? A chilling thought. And yet, this could be happening to the video game industry before our very eyes.

As we all know (and likely wish we knew less), freshly inaugurated US President Donald Trump has wasted no time in throwing the world into economic turmoil by imposing (or threatening to impose) tariffs on goods from Mexico and Canada. And while we are Canadian, I actually want to focus on the Mexico side of this issue. Because, according to this article from Ars Technica, video game discs are predominantly manufactured in Mexico. This means that if sweeping tariffs are imposed, the costs associated with producing physical copies of video games will increase.

Physical video games have been on the outs for a while, with some sources reporting that in 2022, digital games accounted for 70% of all video game sales, with this disparity growing each passing year. This seems to suggest that a future where video games exist in digital form only is not impossible, nor is it very far. Indeed, as costs to manufacture go up, so do costs to buy, and people are already not buying physical games at the current price point. Therefore, it seems unlikely that video game companies will deem it worth the cost to continue producing physical games.

This, for me, raises a broader range of questions with respect to digital vs physical media ownership. One on hand, digital ownership has a ton of benefits: potentially unlimited storage space, instantaneous access, convenience, and, often, a lower price. But for all of these benefits, I think there are also genuine concerns about shifting to a digital only media model. The biggest is the fact that we will no longer own any of our media. Indeed, everything we ‘own’ digitally is actually just licensed content that we can lose at any time, at the owner’s discretion. The true owner can determine what we do with the content, and as such, we lose a lot of the rights that we often associate with property, such as the right to resell or lend content and the right to keep something indefinitely.

If you will allow me to get on my soapbox for one moment, I have to admit that I am a little bit wary of this shift that leaves media control entirely in the hands of a small number of companies. It makes it more likely that certain pieces of media will disappear entirely, and further fractures people’s sense of community as the sharing economy dwindles. Furthermore, we enter into these licensing agreements with no ability to bargain on our side: those who own the media will have unilateral power to dictate what we do with it.

As such, I think that physical media is very important for more than just sentimental reasons, and it is troubling to me certain industries are at risk of disappearing physically all together. When is the last time you bought a DVD, or, indeed, a physical game?

What do you all think of this debate? Do you disagree with me about the importance of physical media? Am I being alarmist (very possible)? Also interesting – the intersection of owning physical media with intellectual property rights. What does owning a CD, for example, actually get you?

Leave me a comment and let’s discuss! In the meantime, I will be in my fortress of books, flipping and annotating at my leisure.

Class 8 Video & Slides – “Video Game Piracy” and “Nintendo, Pokemon & the Law”

The Challenges of Regulating E-Doping

For those who follow the NHL, Florida Panthers defenseman Aaron Ekblad was recently suspended for 20 games for violating the NHL’s policy on performance-enhancing drugs.[1] From Barry Bonds to Lance Armstrong, doping in sports has a long history. However, with the rise of esports, a parallel phenomenon known as “e-doping” is emerging as a significant issue in the video game industry.

The use of performance-enhancing drugs (PEDs), particularly stimulants like Adderall, Vyvanse, and Ritalin, are known to enhance key attributes for competitive gaming such as focus, attention, and reaction times. Anecdotal reports suggest that the misuse of prescription stimulants is widespread among professional gamers. Indeed, a 2020 Washington Post article highlighted that rampant Adderall abuse is an “open secret” in the esports community.[2]

In response to concerns about PED use, the Electronic Sports League (ESL) introduced an anti-doping policy.[3]However, enforcing such regulations remains challenging due to factors such as the legality of prescription drugs and the decentralized nature of esports. Regarding the first issue, unscrupulous players can circumvent anti-doping restrictions by obtaining an ADHD diagnosis, making it difficult to distinguish between legitimate medical use and performance enhancement.[4] The second issue stems from the fragmented nature of esports. Unlike traditional sports, competitive gaming lacks uniform regulations across different games and leagues, and players often compete remotely. While games such as Fortnite and Overwatch have policies stating that prescription drugs should not be used solely to enhance gaming performance, there is currently no feasible way for any governing body to monitor PED use among players consistently.[5]

As the popularity of competitive gaming continues to grow, so too do sponsorship deals and prize pools, increasing the incentives to seek an unfair advantage. The gaming industry must work toward ensuring a level playing field to maintain fair competition. However, what is the best way to address the issue of PED use in esports?

[1] “Panthers’ Aaron Ekblad suspended 20 games for PED program violation” Sportsnet (10 March 2025) https://www.sportsnet.ca/nhl/article/panthers-aaron-ekblad-suspended-20-games-for-ped-program-violation/.

[2] C. Hamstead, “‘Nobody talks about it because everyone is on it’: Adderall presents esports with an enigma” The Washington Post (13 February 2020) https://www.washingtonpost.com/video-games/esports/2020/02/13/esports-adderall-drugs/.

[3] C. Hamstead.

[4] C. Hamstead.

[5] C. Hamstead.

Right of Publicity: The Use of Real People in Video Games (Presentation outline)

Hello Friends!

We hope everyone had a good start to their week! Tomorrow, we will be discussing the Right of Publicity, aka the use of real people in video games (and in other forms of media). Our presentation outline is as follows:

  • What is it?
    • What is the right of publicity?
      • What is it not?
    • Canadian Equivalent + Protections
    • Key Canadian cases
      • Provincial differences → no unified federal framework
    • Elements
  • Case Study
    • Intro to EA Sports: Use of Likeness in its Games
    • Effects of the rating system
    • Legal implications
    • Future considerations

See you all soon!
— Mercedes & Sebastiaan

The End of Nintendo Switch Gold Points

Hi all,

I recently saw some articles on Nintendo ending their Gold Points system for the Switch on March 25, 2025 at 12:30am ET. This came as a surprise to me (and many others online it seems), as the Gold Points system had been very well received.

The loyalty program allowed customers to earn back 5% of their purchase in Gold Points, which they could use to buy games on the Nintendo Store. This program is popular among Nintendo loyalists and felt directly rewarding to fans. This is why its discontinuation has left many perplexed.

Nintendo offered no explanation for why the system will be discontinued, though some speculate that it may be related to the impending Switch 2 reveals that will take place soon during the Nintendo Direct. While Gold Points will continue to be usable for another year, until 2026, the system will come to an end soon.

Has anyone used this system extensively? How do you feel about this loyalty program ending? Do you think Nintendo will unveil a new loyalty program for the Switch 2 to replace the Gold Points?

Feel free to comment with your thoughts!

Sources:

https://kotaku.com/nintendo-switch-2-gold-points-loyalty-scheme-1851765041

https://gamerant.com/nintendo-gold-points-expire-discontinued-march-2025/

 

The UK Government Responds to the Problem with Digital Games

Hi everyone,

As you may have seen in my previous post there are growing concerns regarding the issue of digital media (like video games) only offering a license to play for consumers and various questions that needs answers in relation to players ownership of digital games. Gamers have taken action in the UK by creating a petition that asks for consumer protection laws that prevent video game publishers from disabling games that people have already purchased. The petition is called the “Stop Killing Games” petition.

For context according to the UK government website, people are allowed to create or sign a petition that asks for change to a law or government policy and the petition is posted on the government website for petitions (I have linked the actual petition in the sources below). The UK government website states that after a petition has received 10,000 signatures, the petition gets a response from the government. After 100,000 signatures, petitions are considered for debate in parliament. At present the Stop Killing Games petition has 14,119 signatures and appears to have crossed the 10,000 threshold in February.

The UK  government responded to the Stop Killing Games petition on February 3rd, 2025 however, the response was not what gamers wanted to hear. The UK government stated there are “no plans to amend UK consumer law on disabling video games” and that those selling games must comply with current consumer laws. The UK government did at least say they would continue to monitor the issue. The UK government then preceded to give a detailed outline of the current consumer laws that apply to this issue but the current laws fail to address the ownership issue surrounding digital games. You can see the governments full response in the link provided below.

This response by the UK government as well as California’s new law that I discussed in my previous post both share the same problem. The California and UK government responses imply that the current laws surrounding consumers ownership rights to digital games (or rather the lack of) are acceptable. This means that video game publishers are going to continue to have the right to shut-down games that people play or revoke people’s licenses to games they have purchased likely without facing legal repercussions. Hopefully the Stop Killing Games petition reaches over 100,000 signatures so the UK parliament will have a more detailed discussion regarding the matter in parliament. As it currently stands it does not feel like governments are recognizing the problematic nature of digital games only offering players a license to play digital games despite players having purchased the games.

How do you feel about the UK governments response?

Sources:

https://www.gov.uk/petition-government

https://petition.parliament.uk/petitions/702074

https://www.howtogeek.com/uk-government-dismisses-stop-killing-games-petition/

 

 

Epic Games is being sued over deceptive Item Shop timers in Fortnite

Epic Games is facing a lawsuit over allegedly deceptive sales tactics in the Fortnite Item Shop. The lawsuit claims that Epic used misleading expiration timers to pressure players into making impulse purchases. The timers would suggest that items were available for a limited time, only for the same items to return to the shop shortly afterward, creating a false sense of urgency driven by fear of missing out. Indeed, some rare cosmetic items, such as the Renegade Raider, become extremely valuable to players based on their scarcity. The plaintiffs contend that Epic is falsely marketing skins as “exclusive” and “limited-time only” to encourage in-game purchases.

The elusive “Renegade Raider” Skin

A study from the Netherlands was cited in the lawsuit to back these claims. The Dutch Authority for Consumers and Markets investigated 60 item sets with a 24-hour countdown and found that half of them stayed available longer than a day, with some lasting an average of 15 days. This led to a €1.1 million fine against Epic in 2024 for “exploiting the vulnerabilities of children.” Epic is appealing the ruling and has already made some changes, including barring kids under 18 from purchasing items available for less than 48 hours.

Regarding the current case, Epic has denied the claims, with a spokesperson stating that the “complaint contains factual errors and does not reflect how Fortnite operates.” The company says it removed the countdown timer from the Item Shop in 2024 and introduced measures to prevent unwanted purchases. These include a hold-to-purchase feature, instant purchase cancellations, self-service returns, and an explicit yes/no choice for saving payment information. Epic also requires parental consent for real money purchases by players under 13, with industry-leading parental controls like PIN-protected purchases.

The plaintiff’s case draws on the North Carolina Unfair and Deceptive Trade Practices Act, the California Consumers Legal Remedies Act, the California False Advertising Law, the California Unfair Competition Law, and the Texas Unfair and Deceptive Practices Act to argue that Epic’s tactics were illegal. One plaintiff is located in Texas, another in California, and Epic Games HQ is in North Carolina. The case is awaiting certification as a class action, which would expand the scope of affected parties who could recover against Epic. If the lawsuit succeeds, it could lead to tighter regulations around in-game monetization and how game companies engage with younger audiences. The case highlights the ongoing tension between profit-driven strategies and player protection, especially when minors are involved.

Sources:

https://www.polygon.com/fortnite/535850/fortnite-epic-games-item-shop-lawsuit

https://www.pcgamer.com/games/battle-royale/parents-are-suing-epic-over-fortnite-item-shop-fomo-timers-they-say-are-inaccurate-and-manipulative/

https://www.msn.com/en-us/money/companies/epic-games-is-being-sued-over-fake-sales-with-made-up-expiration-times/ar-AA1AxE6P

Women Representation in Video Games: Split Fiction

On March 6, 2025, Hazelight Studios released Split Fiction, a co-op video game where protagonists, Zoe and Mio, get lured to a tech company with the prospect of publishing their novels. However, what ends up happening is that their brains get stripped of every story they have ever conjured, wind up in their fantastical stories, and have to find a way out!

 

Split Fiction has quickly hit milestones, reaching one million in sales within two days of being released and receiving many positive reviews. However, what has captured my attention about the game is the protagonists. Zoe and Mio are female. In an industry where “only 6% [of video games] feature a female character in the lead role,” we get two! This is important because, more often than not, women in video games end up being secondary or background characters.

 

Moreover, Zoe and Mio are “ordinary” (for lack of a better word). What I mean is, they are not overly sexualized.

Split Fiction First Preview: We Played Josef Fares's New Co-Op Game

Zoe and Mio from the game Split Fiction

The over sexualized representation of women has been a historical issue with the industry, and a lot of it has to do with EDI issues within the industry itself.

Lara Croft - Wikipedia

Lara Croft is a classic example of women being over sexualized in video games

Perhaps Hazelight is paving the way for a new generation of games and developers where games are becoming more diverse and inclusive, as director Josef Fares called out sexist YouTube comments on a Split Fiction Trailer. All in all, I hope Split Fiction serves as an example that women-leading video games can be good, fun, and successful, just like any other game, and that we can expect more games like this in the near future.

 

 

Canada’s Reliance on the ESRB Rating System

In Canada’s economic sphere, there has been some momentum toward removing interprovincial trade barriers, which could help reduce Canada’s economic dependence on its neighbours.[1] Perhaps Canada’s video game industry would benefit from revisiting Sara Grimes, Darshana Jayemanne, and Seth Giddings’ article “Rethinking Canada’s Approach to Children’s Digital Game Regulation.”[2]

In this article, Sara Grimes—whom Professor Festinger mentioned in class—critiques Canada’s reliance on the U.S. based Entertainment Software Rating Board (ESRB) classification system. Digital games for children offer valuable opportunities for socialization, play, and learning, but they also present risks. According to the authors, the ESRB is insufficient to safeguard children’s rights in the digital environment, as its ratings do not adequately address children’s varying literacies, maturity levels, or elements embedded in games yet “distinct” from their contents, such as third-party ads and invasive data collection practices.[3]

Interestingly, the ESRB is not enforced by any U.S. federal or state laws, yet it is enforced in numerous Canadian provinces despite the lack of direct Canadian involvement in the classification process or any formalized accountability to the Canadian public.[4] The authors argue that the ESRB process is not targeted enough to address the novel risks associated with the growth of online children’s games. For example, games that include microtransactions or online interactions with other users are merely given an “interactive elements” warning, which does not influence the game’s overall rating.[5]

Moreover, the ESRB’s classification process might not adequately reflect Canadian values or account for the diverse cultural contexts within Canada. To highlight this point, the authors compare film classification systems in British Columbia and Alberta, revealing discrepancies in age ratings for the same films. This raises questions about whether similar discrepancies would arise if games were rated domestically rather than through the ESRB system.

Given these concerns, is it time for the Canadian gaming industry to consider a classification system better suited to reflect Canadian cultural norms and protect Canadian children? How might this best be approached?

Read the full article here.

 

[1] N. Mallees, J. Hunter, & J. Gray, “Ottawa agrees with provinces to act fast to topple internal trade barriers” The Globe and Mail (5 March 2025) https://www.theglobeandmail.com/canada/article-ottawa-strikes-deal-with-provinces-territories-on-internal-trade-amid/.

[2] S. M. Grimes, D. Jayemanne, S. Giddings, “Rethinking Canada’s Approach to Children’s Digital Game Regulation” (2023) 48:1.

[3] Grimes, Jayemanne, & Giddings at p 144.

[4] Grimes, Jayemanne, & Giddings at p 147.

[5] Grimes, Jayemanne, & Giddings at p 147.

Video Game Piracy – Presentation Outline and Slides

This presentation, delivered by Brandon Potomak, Kai Rogers, Alirod Ameri, and Peter Mate, explores video game piracy from multiple angles, including its evolution, legal implications, industry impact, and future trends.

1. The Evolution of Video Game Piracy

Video game piracy has evolved from early disk copying in the 1980s to modern digital distribution methods.

  • 1980s–1990s: Piracy was primarily done through floppy disks and bulletin board systems (BBS).
  • 2000s: The rise of the internet led to peer-to-peer file-sharing and torrents, making piracy more widespread.
  • 2010s–Present: Advanced DRM (Digital Rights Management) measures like Denuvo have been introduced, but piracy groups continue to crack protections.

2. Video Game Piracy and the Law

  • Legal Definition: Piracy is copyright infringement but not legally classified as theft, as stated in Dowling v. United States (1985).
  • International Laws: Treaties like the TRIPS Agreement (1995) and the WIPO Copyright Treaty (1996) criminalize commercial-scale piracy and outlaw DRM circumvention.
  • Canada: Governed by the Copyright Act, with penalties up to $20,000 per infringed game for commercial piracy.
  • United States: Heavy penalties, with statutory damages up to $150,000 per work infringed.

3. Effects of Piracy on the Industry and Counter-Piracy Measures

  • Piracy has not prevented the video game industry from prospering. Piracy of video games is harder and less prevalent than piracy of film, television and music.
  • Some companies such as Nintendo take an active and strong stance against piracy, pursuing violators around the world in court and seeking stiff penalties and enforcement.
  • There are several factors which encourage piracy, such as the high price of games and inaccessibility in certain regions.
  • However, the inherent structure of video games and technological measures such as DRM make video game piracy difficult, ineffective and cumbersome.

4. Future Developments in Video Game Piracy

  • AI-assisted cracking could emerge to help crack current anti-piracy measures such as DRM.
  • Generative AI can be used to create games that are similar to existing copyrighted games.
  • Current models of piracy mitigation are unprepared for these potential and upcoming developments.

Video Game Piracy (presentation slides)