Video Game Tort: You Made Me Play You

A federal judge in Hawaii ruled last month that a man claiming to be addicted to a videogame can sue the game’s maker for gross negligence in not warning him he could become a joystick junkie. Craig Smallwood alleges in his lawsuit that, as a result of playing the online game “Lineage II,” he has “suffered extreme and serious emotional distress and depression, and has been unable to function independently in usual daily activities such as getting up, getting dressed, bathing, or communicating with family and friends.”

Mr. Smallwood did not specify how this differs from the condition of the average video-game aficionado.

Silly as the suit may be, it isn’t without legal ramifications. Steven Roosa, a lawyer doing research at Princeton’s Center for Information Technology Policy, sounded almost giddy this week at the prospect that a court might chip away at the enforceability of End User License Agreements, or EULAs. These software license agreements often radically limit how, and for how much, customers can sue if they feel harmed by an electronic product.

Mr. Roosa cheered on his blog that the judge in Hawaii has opened an avenue for escaping the tyranny of these one-click, liability-limiting contracts. He called the judge’s refusal to throw the case out in its entirety a “stunning defeat” not only for the maker of Lineage II, but for the whole business of locking customers into contracts that consist of miles of electronic fine print that hardly anyone ever reads.

Alleged culprit: Lineage II

No doubt we do live in a time of kudzu legalese, with weedy contractual tendrils crawling into every electronic transaction. It’s alarming to think about everything we sign off on these days, with endless demands to click “I agree” as the non-negotiable price of entry into our electronic worlds. Alarming, because few of us ever peruse the legal documents to which we so regularly and glibly affix our electronic signatures.

Last April, the British retailer Gamestation set out to prove the point by including in its boilerplate some Mephistophelean contractual language: “By placing an order via this Web site,” read the clause, “you agree to grant us a non-transferable option to claim, for now and for ever more, your immortal soul.” In just one day, some 7,500 customers “agreed” to hand over their souls for a mess of virtual pottage.

Do EULAs threaten to make us into so many Esaus? Mr. Roosa wants courts to rethink treating EULAs as though they were binding contracts. He wrote that “the Smallwood decision, if it stands, may achieve some lasting significance in the software license wars.”

Let’s hope not. Because a new opportunity for parasitic litigation isn’t exactly the way to boost technological progress.

The proliferation of annoying and obnoxious license agreements has been driven, primarily, not by companies’ desire to abuse their customers, but by a need to keep their rather more litigious customers from abusing them (and the legal system). As Jonathan Zittrain, who teaches both law and computer science at Harvard, puts it, “EULAs are, for most companies, a shield not a sword.”

“The reason you don’t see tech companies dragged into court for their buggy software,” Mr. Zittrain says, “is that you need to prove actual physical harm,” to overcome to overcome the liability limits of the standard EULA. Imagine what the state of the computer industry would be if every time someone lost their tax records because of a glitchy hard drive, they sued the manufacturer to recover the costs of making nice with the IRS. Bad software is best punished by the market, not the courts.

Which isn’t to say that it is inconceivable that a software company could cause physical injury. Strobe lights, at certain frequencies, can cause seizures in some people with epilepsy. In 1997, a Pokémon cartoon broadcast in Japan included a strobe effect blamed for causing seizures in hundreds, perhaps thousands of children. The epileptic epidemic proved to be largely a case of media-fed hysteria, but there were indeed some susceptible children who suffered seizures because of the strobe.

Mr. Zittrain says that if a video game included a strobe, and the maker learned it was causing actual seizures but then couldn’t be bothered to remove the effect or even just include a warning, gross negligence might well be proved and a EULA would provide no cover. In such a case, he says, there would be “a clear link between the behavior of the company and a demonstrable physical harm.”

Back in Hawaii, Mr. Smallwood is indeed claiming physical harm, even if it is of a psychological sort. In his ruling, U.S. District Court Judge Alan Kay noted that Hawaii’s supreme court allows emotional trauma to be treated as physical harm if the “plaintiff’s psychological distress is trustworthy and genuine.”

It remains to be seen whether a jury will find that Mr. Smallwood’s claims of psychic injury meet that standard. And there’s plenty of legal maneuvering to go. Judge Kay already threw out the bulk of Mr. Smallwood’s voluminous complaint; what’s left may yet get tossed before ever going to trial

And a good thing that would be, because discovering some newly elastic definition of injury, combined with an expanded concept of “gross negligence” would be just the stuff to spur a new tortious gold rush. Do we want the tech biz focused on innovation or litigation?

Then again, given the time my son spends playing Wii, I might want to rethink my own answer to that question. Maybe there’s a payday to be had for the Feltens.

Eric Felten, Wall Street Journal


Full article and photo: