Video games open the door for potential legal liability in ways that gaming companies don’t expect. “Moonball 2005” above. ©2005 by www.orangeview.net – Image used with permission. Click here to see full sized version.

Earlier this year, Michigan police arrested a 4-year-old boy who borrowed his parents’ car in the middle of the night to rent a video game. Seriously!

An officer became suspicious when he spotted an apparently driverless car zigzagging slowly between two lanes of highway. The officer turned on the siren and the chase was on. The 4-year-old tried his best to evade the officer (smashing into a parked car and then reversing into the police car). But in the end the police got their boy.

“So what?” you ask. The point is that video games open the door for potential legal liability in ways that gaming companies don’t expect. This is especially true for massively multiplayer online (MMO) games. Before you can protect yourself from this potential liability, you need to understand it. 

Online theft and destruction

Who owns the online property in MMO games? At least one court thinks that gamers do. In 2003 a Chinese court ordered a gaming company to return a stockpile of virtual weapons to a gamer whose MMO gaming account had been hacked. The gaming company didn’t see this lawsuit coming.
Unfortunately, gaming companies are natural targets for a lawsuits because they are easy to identify. It’s much harder to track down a hacker.

Of course, there are exceptions. For example, a woman in Japan is facing criminal charges after she intentionally trashed the data on her boyfriend’s Lineage account. Apparently she wasn’t happy that he had broken up with her, so she used his username and password to access his online account and wreak havoc. Talk about bad break-ups.

Online assaults

Generally speaking, you’re not allowed to hurt your neighbours in the real world. If you do, you could go to jail and you could get sued.

On the other hand, you can generally hurt your neighbours all you like in the online world. This is similar to the professional sports world: if you’re a pro football player, you’re allowed to rough-up guys on the other team. It’s all part of the game.

But there are limits. In the pro sports world, you’re not allowed to sucker punch a guy on the other team and break his neck. Vancouver Canucks’ forward Todd Bertuzzi found this out the hard way. He was suspended by the NHL and convicted of criminal assault causing bodily harm.

Is the online world any different? For many MMO games, online violence is an accepted and intended part of the game. But that’s not always true. For example, most people probably don’t expect to be assaulted, tortured or exposed to virtual prostitution in The Sims Online. Yet, in every game (even the Sims) there are griefers and bullies who like to destroy people’s online fun.

This isn’t great from a business perspective: it can drive gamers and their online dollars away from a game. And it’s potentially much worse: it can expose young gamers to inappropriate content and conduct that their parents never intended them to see. This is bad PR and a source of potential liability.

Offline assaults

Some people can get carried away, and their online fantasy worlds can turn into offline reality. Everyone’s heard about gamers who have committed brutal real-world assaults or killings, blaming their actions on the video games they play. This usually results in the gamer facing criminal charges and the gaming company facing a civil lawsuit.

For example, in June of this year, a Chinese court convicted 41 year-old Qui Chengwei of murdering a fellow Legend of Mir III gamer. Chengwei was apparently enraged because the victim sold a virtual sabre that Chengwei had lent to him.

And closer to home, the families of three slain police officers sued Take Two, Sony and various retailers because the teen who killed the officers claimed he was trained and motivated by the game “Grand Theft Auto.” This is a huge potential liability: the families are asking for $600 million in damages.

Cheating

Cheating is another area of potential liability for gaming companies. The primary target for liability, of course, would be the gamer who is doing the cheating. But again, it’s much harder to track down the cheater, so the better target is the gaming companies who create the games (and the loopholes) that make cheating possible.

No doubt that’s why Blizzard recently shut down over 50,000 Battle.net accounts, suspended over 8,000 CD keys (security devices for the game publishers to protect their IP) and permanently banned over 3,000 CD keys because the owners of those accounts and keys had been cheating.

Legal solutions

End-user licence agreements and online terms of use can be a great way to reduce or eliminate liability, expel griefers and reduce or negate any concept of player ownership over virtual property.
However, some courts won’t hesitate to ignore licence agreements and online terms that are unexpectedly harsh or onerous. The easy way to reduce this risk is to avoid putting harsh and onerous terms in online agreements. But that’s hardly any fun, so another option is to notify customers of the harsh and onerous terms. This will increase the chances that the terms will survive a judge’s scrutiny.

Also, to be enforceable, it’s probably not enough for the online terms to appear in a link buried at the bottom of a website. It’s much better to require gamers to click “I agree” after giving them the opportunity to read the full terms.

And one final note: agreements can protect gaming companies from liability to their gamers, but they provide little or no protection against third parties. For example, Black Snow Interactive allegedly hired Mexican labourers to play Mythic’s Dark Age of Camelot and generate a wealth of online property which the company auctioned on e-Bay. An End-User Licence Agreement might have been effective against the labourers, but it wouldn’t have had any effect on Black Snow because Black Snow never agreed to it.

Chris Bennett is a video game and intellectual property lawyer at Davis & Company LLP in Vancouver. His firm’s video game law blog is at www.VideoGameLawBlog.com.