Rated "M" for Misleading: How Deceptive, Anti-Consumer Practices in the Videogame Industry Became the New Norm

University of Florida Journal of Law & Public Policy University of Florida Journal of Law & Public Policy

Volume 27 Issue 3 Article 1

2016

Rated "M" for Misleading: How Deceptive, Anti-Consumer Rated "M" for Misleading: How Deceptive, Anti-Consumer

Practices in the Videogame Industry Became the New Norm Practices in the Videogame Industry Became the New Norm

Luis Baez

Follow this and additional works at: https://scholarship.law.u;.edu/jlpp

Recommended Citation Recommended Citation

Baez, Luis (2016) "Rated "M" for Misleading: How Deceptive, Anti-Consumer Practices in the Videogame

Industry Became the New Norm,"

University of Florida Journal of Law & Public Policy

: Vol. 27: Iss. 3,

Article 1.

Available at: https://scholarship.law.u;.edu/jlpp/vol27/iss3/1

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RATED

"M"

FOR

MISLEADING:

HOW

DECEPTIVE,

ANTI-

CONSUMER

PRACTICES

IN

THE

VIDEOGAME

INDUSTRY

BECAME

THE

NEW

NORM

Luis Baez*

INTRODUCTION

....................................................................................

304

I.

EULAS

AND

CONTRACTS

FOR

THE SALE

OF

VIDEOGAMES

...........

307

A.

Videogame

Software

as

"Goods

"

Under

the

UCC .............

307

B.

Videogames

as

Service

Contracts

Under

the

C

om

m

on Law

.......................................................................

3

10

C

. N

ew

W

ine,

O

ld

Bottles

.........................................................

312

II.

BROKEN

RELEASES

.....................................................................

313

A

.

Batm

an:

Arkham

Knight

......................................................

313

B.

Halo:

The

Master

Chief

Collection

......................................

318

C

.

D

rive C

lub

............................................................................

320

D

.

B

attlefield

4

..........................................................................

320

E.

Assassin

's

Creed

Unity

........................................................

322

F.

Other

Anti-Consumer

Videogames

......................................

324

III.

RESTORING

CONSUMER

RIGHTS

..................................................

326

C

ON

CLU

SION

........................................................................................

328

"The

idea

that

[the

videogame]

industry

as

a

whole

has

figured

out

a

way

that

[consumers]

can't

return

broken

products

. . .

is

a

little

bit

ridiculous.

We

have

to

find

a

way

to

protect

the

consumer."

Jeff

Cannata'

*

Luis

Baez

is

a

litigation attorney

in

Houston,

Texas

at

the

law

firm

of

Simon

Herbert

&

McClelland

LLP.

He

is

a

graduate

of

the

Michigan State

University

College

of

Law,

where

he

was

an

articles

editor

on

the

Michigan

State

Law Review.

He

would

like

to

thank

Professor

Daniel

Barnhizer

for

his input

on

the

topic

of

this

Article

before

its

drafting

and

the

journalists

in

the

videogame

industry for

their reporting

efforts

cited

in

this

Article.

1.

Christian

Spicer

& Jeff

Cannata,

44:

Rub

Superman's

Shoulders,

DLC

(Oct.

13,

2014),

http://5by5.tv/dlc/44.

UNIVFRSITY

OF

FLORIDA

JOURNAL

OF

LA

WAND

PUBLIC

POLICY

INTRODUCTION

Viewership

of

competitive

videogame

events

surpasses

almost every

major

professional

sport

event.

2

Major

tournaments

for

videogames

like

"Dota

2"

and

"League

of

Legends"

had

more

worldwide

viewers than

the

2015

Masters,

NBA

Finals,

World

Series,

and Stanley

Cup

Finals.

3

They

also pay

their

winners

more.

4

Only the

National Football

League's

Super

Bowl

is

popular

enough

in

terms

of

viewership

numbers

to

hold

off

the

ever-increasing

popularity

of

both competitive

and

casual

videogaming

and

its

growing

audience.

5

The

industry

is

an

estimated

sixty-five

billion

dollar

market

with

one

billion

unique

players

across

the

world,

and

it

shows

no

signs

of

slowing

growth.

6

As

videogame

technology

rapidly

evolves,

legal

issues

videogame

streaming

over

the

Internet

through

YouTube

or

Twitch,

commentating

over

live

broadcasts,

and

competitive,

local

tournaments

offering

large

cash

payouts,

have

presented

themselves-in

a

mostly

problematic

fashion.'

Many

of

these

issues, however,

are

what

consumers

do

with

a

videogame

after

its

purchase.

But

it is

also

becoming-however

unfortunate-more

and more

common

that

videogames

are

being

marketed,

distributed,

and

sold

to

hundreds

of

thousands

of

consumers

in

a

broken,

non-functional

state

before

their

purchase

at

big-box

retail stores

or

over

the

Internet

through

digital

downloads.

8

Worse yet,

most big-box

stores

do

not

accept

videogames

2.

Ben

Casselman,

Resistance

is Futile:

eSports

is

Massive...

and

Growing,

ESPN

THE

MAG.

(June

22,

2015),

www.espn.com/espn/story/_/id/13059210/esports-massive-industry-

growing.

3.

Id.; Nick

Schwartz,

27

Million

People

Watched

the

"League

of

Legends"

World

Championship

(more

than

the

World

Series

or

NBA

Finals),

USA

TODAY

SPORTS

(Dec.

1,

2014,

6:12 PM),

http://ftw.usatoday.com/2014/12/league-of-legends-worlds-viewership-esports-world-

series-nba-finals.

4.

Casselman,

supra

note

2.

5.

Id.

6.

Major Nelson,

Hear

Xbox's

Aaron

Greenberg Share

the

Latest

on

the

Gaming

Industry's

Growth,

XBOX.COM

(May

17,

2013,

9:10

PM),

http://news.xbox.com/2013/05/x360-

aaron-greenberg-industry-growth;

Darren

Heitner,

Why

2016

Should

be

a

Year

of

Tremendous

Growth

for

eSports,

FORBES

(Dec.

31,

2015,

8:03

AM),

http://www.forbes.com/

sites/darrenheitner/201

5/12/3

I/why-2016-should-be-a-year-of-tremendous-growth-for-esports/#

2a6acfa62b96.

7.

See

generally

Philip

Kollar,

Are

Let's

Play

Videos

from

PewDiePie

and

Others

Actually

Legal?,

POLYGON

(Jan.

6,

2015,

7:00

PM),

http://www.polygon.com/2015/i/6/

750533

l/pewdiepie-lets-play-video-legality;

Mona

Ibrahim,

Deconstructing

Let's

Play,

Copyright,

and

the

YouTube

Content

ID

Claim

System:

A

Legal

Perspective,

GAMASUTRA

(Dec.

12,

2013,

1:16

PM),

http://www.gamasutra.com/blogs/Monalbrahim/20131212/206912/

Deconstructing

Lets

Play

Copyright

and

theYouTubeContent

IDClaimSystemALegal

-Perspective.php.

8.

Brian

Crecrente,

Broken

Video

Games

Are

the

New

Norm,

What

Developers

Need

to

Do

to

Fix

That,

POLYGON

(Nov.

24,

2014,

4:06

PM),

http://www.polygon.com/

[Vol.

27

RATED

"M"

FOR

MISLEADING

for

return

when

the

shrink-wrap

has been

opened,

and

most-if

not

all-

publishers

have

onerous

end

user

license

agreements

(EULA) on

deck

for

their

customers

to

accept

before

they

even

have a

chance to

inspect

and

determine

whether

the

videogame

is

actually

playable.

9

As

an

illustration

to

help

guide

a

reader

who

is

unfamiliar

with

modem

day

videogames

and

the

current

problems

permeating

the

industry

to

be

addressed

in

this

Article,

consider

the

following

hypothetical:

It

is

the

year

1980.

Ronald

Reagan

was

elected

President

of

the

United

States,

Billy

Joel

won

a

Grammy,

and

Olympic

teams

across

the

world

boycotted

the

Summer

Olympics.'

0

Namco,

an

up-and-coming

videogame

pub-

lisher,

announces

the

release

of

a

videogame

called

"Pac-Man."

Namco

announces

and

advertises

through

television

commercials

and

magazines

that

players

could control

Pac-Man

in order

to

eat

pellets

scattered

through

a

maze.

If

a

player

succeeded

at

eating

every

pellet

in

a

maze

without making

contact

with

the

one

of

four

ghosts

that

were

chasing

her,

then

she

completed

that

level

and

would

move

on to

a more

difficult'

maze.

Thousands

of

children

go

on

to

force

their

parents

to

take

them

to.

a

local electronic

store

in

order

to

buy

a copy

of

the

videogame.

When

the

player

gets

home,

she

plugs

in

her

new

game

into

the

console,

plugs

in

her

controller,

and

turns

on

her

television

to

start

playing.

However,

when

it

comes

time

to

take

control

of

Pac-Man

on the

first

stage,

nothing

is

working

right.

Pressing

the

up

arrow

on

her

controller

sends

Pac-Man

traveling

right,

pressing the

left

arrow

pauses

the

game,

and

every

time

Pac-Man

moves

through

a

particular

section

of

the

maze,

his

image

disappears

and

he is

nowhere

to

be

seen.

The game

is

effectively

unplayable

as

a

consequence

of

its

programming.

But when

she

tries

to

take

the

game back

to

the

store

for

a

refund,

she

is

told

that

the store

does

not

accept

refunds

of

opened

videogames

and

that,

in

other

words,

because

the videogame

turns

on

and

images

appear

on

the

screen,

it

still

"works"

and

is

therefore

nonrefundable.

Namco's

EULA

also

disclaims

any

warranties,

excludes

the

possibility

of

repair

or

replacements,

and

has a

mandatory

arbitration

clause

preventing

her

and

2014/1

I/24/7277363/broken-video-games-are-the-new-norm-what-developers-need-to-do-to-

fix;

Michael

McWherton,

2014

in

Review:

The

Year

that

Sucked,

POLYGON

(Dec.

21,

2014,

5:03

PM),

http:/

www.polygon.com/2014/12/21/7413619/2014-in-review-the-year-that-sucked;

Ben

Gilbert,

Why

Are

so

Many

Video

Games

Broken

at

Launch?,

ENGADGET

(Nov.

24,

2014),

http://www.engadget.com/2014/11/24/broken-video-games/.

9.

See,

e.g.,

Returns

&

Exchanges,

BEST

Buy,

http://www.bestbuy.com/site/help-topics/

retum-exchange-policy/pcmcat260800050014.c?id=pcmcat260800050014

(stating

that

"videogames

must

be

returned

within

90

days

if

unused,

unopened

and

unmarked

(emphasis

added)).

10.

For

a

brief

history

of

early

videogame

development

in

the

1980s,

see

Michael

Stevens,

A

Brief

History

of

Video

Game

Consoles

from

the

Early

1970s to

the

late

1990s,

VENTUREBEAT

(Dec.

30,

2013,

2:41

PM),

http://venturebeat.com/community/2013/12/30/a-brief-history-of-

video-game-consoles-from-the-early-I

970s-to-the-late-1

990s/.

UNIVERSITY

OF

FLORIDA

JOURNAL OF

LAW AND

PUBLIC POLICY

thousands

of

other

consumers with

the

same

problem

from

joining a

class-action

lawsuit

to seek

redress for

purchasing

a

videogame

that

does

not work

as

advertised.

In

the

present

day,

there

is

an

ever-growing

laundry

list

of

modem

videogames

with

issues

similar

to

the

ones

in

the

above-described

hypothetical."

These

videogames

are

sold

with promises

of

workable

online

multiplayer

and

other

online

features,

yet

they

do

not

work.

Draconian

EULAs

leave

videogame consumers without

legal

remedies

(and

if

they

do,

they

are

too

expensive

for

individual consumers

to

pursue).

Today's

videogame

consumer

has

little

to

no

bargaining

power

in

the

marketplace

when

it

comes

to

the

terms

of

their

EULA.

Anti-consumer

practices

in the

industry

have

thrived

because

of

(1)

how

videogames

are

treated

in the

context

of

case

law

distinguishing

software contracts

as

those

for

the

sale

of

goods

or

contracts for service,

(2)

the

enforceability

of

onerous

EULAs;

and

(3)

because

the

judiciary's

widespread

understanding

of

terms

under

the Uniform Commercial

Code

(UCC)-like

"opportunity

to

inspect"-has

not

kept

pace

with

videogame technology.

As

one

court

has

put

it, when

the

judiciary

tries

to

"pour

new

wine

into

old

legal

bottles,

[it]

sometimes

miss[es]

the

nuances."

In this

industry,

the

nuances

are

of

significant import.

This

Article argues

that

an

examination

of

the

circumstances

surrounding

today's

videogame

industry

and

marketplace

render

any

EULA

or

other

agreement

that

prevents

a

videogame

consumer

from

returning

a

broken

videogame for

a

refund

renders it

per

se

unconscionable

and

that,

in the

interest

of

justice,

additional consumer

protection

must

be

crafted

for

videogame

consumers.

To

advance

this

position,

this

Article

will

discuss

(1)

the

current

state

of

how

videogames

are

treated

under

contract

law

(whether

it

be

the

common

law

or UCC);

(2)

examples

of

misleading advertising

and

recently

released broken

videogames

and

how their

EULAs

protect

them;

and

(3)

whether high-

profile

videogame

litigation

and

other

remedies

available

to

consumers

are

enough

to

curtail

an

industry intent

on

eroding

the

rights

of

its

customers.

In

short,

the

nature

of

the

industry, its advertising practices,

and

way

in

which

videogames

are

delivered

and

distributed

have created

the

need

for

additional

consumer

protection. Without

it,

videogame

publishers

will

continue

their

race

to

the

bottom

in

terms

of

standards,

honesty,

and

consumer-friendly

practices.

11.

See

infra

Part

I.G.

[Vol.

27

RATED

"M"

FOR

MISLEADING

I.

EULAS

AND

CONTRACTS FOR

THE

SALE

OF

VIDEOGAMES

The

largest

impediment

to

the

restoration

of

consumer

rights

in the

videogame

industry

is

the enforceability

of

the

EULA

in

the

United

States.

Videogames

are

treated

by

the law the

same way

that

any

type

of

computer

program or

software

is.

For

example,

purchasing

a

copy

of

the

latest

version

of

Microsoft

Office at

your

local

Best

Buy

is

functionally

the

same as

purchasing

a

copy

of

the

most

recent

version

of

Street

Fighter

or

Call

of

Duty-they

are

each different

forms

of

software.

EULAs,

or

"shrink-wrap

licenses,"

operate

as

the

contract

between

a

consumer

and

publisher

of

software

bought

and

sold

in

the

market.

It

is

the

terms

of

EULAs

that

comes

with

the

sale

of

modern

videogames-whether

sold

digitally

on

a

disc-that

has

led

to

the

increase

in the

sale

and release

of

nonfunctional

and

broken

videogames.

Analysis

of

how EULAs

are

reviewed

by

courts

depends

primarily

on

whether

the

particular

EULA

is

determined

to

be

a

contract

for the

sale

of

goods,

and

thus

governed

by

the

terms

of

the

UCC,

or

whether

it

is

a

contract

for

services, and,

accordingly,

governed

by

the

common

law.'

Although

it

may

be

of

little

practical

import

(because even those contracts

governed

by

the

UCC

can be

modified

to

waive

a

consumer's

traditional

Article

2

inspection

and

rejection rights),

it

is

important

to

understand

the

framework

by

which

software-and

by

extension

videogames-are

analyzed

by

courts

in

the

United

States.

A.

Videogame

Software

as

"Goods "

Under

the

UCC

The

Seventh

Circuit's

decision

in

ProCD,

Inc.

v.

Zeidenberg

is

the

seminal

case on the

issue

of

the

enforceability

of

EULAs

in

modern day

software purchases.

In

the

case,

ProCD

sold

at

big-box retail

stores

software on

a

CD-ROM that

included

a

program

containing information

gathered

from

3000

different

telephone directories

across

the

United

States.

The

program

was

called

"SelectPhone."

ProCD

sold the

CD-ROM

at

two different

prices:

one

price

for

consumers

and

another

(higher) price

for

commercial

customers.

This

difference,

as

discussed

by

the

Seventh

Circuit,

was

the

primary

motivation

for the

EULA

(or

"shrink-wrap

license"

as

it is

referred

to

as

in

the

text

of

the case).

Importantly,

the

terms

of

the

EULA

were

only

accessible after

the

software

was

purchased

at

the

store and

the

shrink-wrap

was

torn

open.

The

EULA

itself

was

encoded

onto

each

disc

and

would appear

on

a

customer's

screen

before

she

was

allowed

to

run

the

program.

It

also

appeared in the

text

of

the

manual

and

was

drafted

to

apply

to

every

use

and

installation

of

the

program.

In

order

to

use

the software,

a

customer

had

to

agree

to

the

UNIVERSITY

OF

FLORIDA

JOURNAL

OF

LAW

AND

PUBLIC

POLICY

EULA's

terms.

1

2

Matthew Zeidenberg,

the

defendant

in

ProCD,

bought

a

consumer

version

of

the

software

at

a

local

retail store.1

3

He

then

formed

a

company

and

took

the

information

from the software,

repackaged it,

and

uploaded

it

to

an

Internet website

he

created

so

that

millions

of

users

could

access

the

information

on

ProCD's

software at

a

much

lower

cost

through

his

website

than

had

they

purchased

it

at

the

store.

1

4

The

issue

in

the

case

was

whether

the

terms

of

the EULA

were

enforceable

because

they

were

not

available

to the

consumer

prior

to

the

program's

purchase.

15

The

lower court

held that

the

terms

of

the

EULA

were

not

enforceable

because

its

terms

did

not

appear

on

the

outside

of

the

package

for

consumers

to

review

prior

to

the

program's

purchase.

'

6

The

Seventh

Circuit

prefaced

its

analysis

by

noting

that

it

analyzed

EULAs

as

ordinary

contracts

governed

by

the

common

law

and

UCC.

1

7

Although

Zeidenberg

argued

that

the

terms

of

the

EULA

were

not

a

part

of

the

agreement between

the

parties

because its terms

were

not

on

the

outside

of

the

package's

software,

the

court

believed

that

it

would

be

impracticable

to

print

or

place

EULAs

on

the

outside

of

every

package.

18

Instead,

the

court

reasoned

that

customers

and sellers

of

software

would

be

benefitted

by

a

system

providing

"[n]otice

on

the

outside,

terms

on the

inside,

and a

right

to

return

the

software

for a

refund

if

the

terms

are

unacceptable."'

9

The

court

also

discussed

this type

of

exchange

in

the

context

of

digital

purchases.

20

It

noted

that

many

software

sales are

digital, and

that

the

digital

nature

of

the

exchanges make EULAs

advantageous

for

the

new

and

emerging software

market.

2

'

12.

Id.

13.

Id.

In

explaining

the

issue

of

the

case

from

Zeidenberg's

prospective,

the

court

stated

that

the

"user

purchases

a

serial

number,

which

activates

the

software's

features.

On

Zeidenberg's

arguments,

these unboxed

sales

are

unfettered

by

terms-so

the

seller

has made

a

broad

warranty

and

must

pay

consequential

damages for

any

shortfalls

in

performance,

two

"promises"

that

if

taken seriously

would

drive prices through

the

ceiling

or

return

transactions

to the

horse-and-

buggy

age."

14.

Id.

15.

Id.

For

more

information on

the

impact

of

this

case on

contract

law and

goods

in

a

mass-market

context,

see

id.

See

Jane

Kaufman

Winn

&

James

R.

Wrathall,

Who

Owns the

Customer?

The

Emerging

Law

of

Commercial

Transactions

in

Electronic Customer

Data,

56

Bus.

LAw.

213, 245

(2000)

(discussing the

impact

of

this

case

on

contract

law and

goods

in

a

mass-market

context).

16.

ProCD,

Inc.,

86

F.3d

at

1450.

17.

Id.

18.

Id.

19.

Id.

at

1451.

The

Court

also

cited Carnival

Cruise Lines,

Inc.

v.

Shute, 499

U.S.

585,

(1991)

as

part

of

its

analysis

(stating that

"to

use

the

ticket

is

to

accept

the

terms,

even

terms

that

in

retrospect

are

disadvantageous..

20.

Id.

21.

Id.

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The

court

cited

§

2-204(1)

of

the Uniform

Commercial

Code

as

its

22

starting

point.

The court

emphasized that,

as

seller

of

the

good,

ProCD

is

allowed

to

dictate

the

terms

of

acceptance

through

the

EULA:

A

vendor,

as

master

of

the

offer, may

invite acceptance by

conduct,

and

may

propose limitations

on the

kind

of

conduct

that

constitutes

acceptance.

A

buyer

may

accept by

performing

the

acts the

vendor

proposes

to

treat

as

acceptance.

And

that

is

what happened.

ProCD

proposed

a

contract

that

a

buyer

would

accept

by

using

the

software

after

having

an

opportunity

to

read

the

license

at

leisure.

23

The

court

then

explained

the

options

a

customer

of

the software

had

if

the

terms

of

the

EULA were

not

agreeable

or

the

software

is

incapable

of

installation:

"Any

buyer

finding

[unacceptable

terms] can

prevent

formation

of

the

contract

by

returning

the

package,

as

can

any

consumer

who

concludes

that

the

terms

of

the

license

make

the

software

worth

less

than

the

purchase

price."

2

4

The

court

then

turned

to

§

2-606

of

the

UCC

to

reinforce

its

position.

2

5

§

2-606 provides

that

a

"buyer

accepts goods

under

§

2-606(1)(b)

when,

after

an

opportunity

to

inspect,

he

fails to make

an

effective

rejection

under

§

2-602(l).,,26

The

court

then

described

the

sequence

of

events

from

the

defendant-consumer's

perspective:

Zeidenberg inspected

the

package,

tried

out

the

software, learned

of

the

license,

and

did

not

reject

the

goods.

We

refer

to

§

2-606

only

to

show

that

the

opportunity

to

return

goods

can

be

important;

acceptance

of

an

offer

differs from acceptance

of

goods

after

delivery,

see

Gillen

v.

Atlanta

Systems,

Inc.,

997

F.2d

280, 284

n.

1

(7th

Cir.

1993);

but

the UCC

consistently

permits

the

parties

to

structure

their

relations

so

that

the

buyer

has

a

chance

to

make

a

final

decision

after

a

detailed

review.

2

7

22.

Id.

at

1452.

UNIFORM

COMMERCIAL

CODE

§

2-204(1)

provides

that

a

"contract

for

sale

of

goods

may

be

made

in

any

manner

sufficient

to

show

agreement, including conduct

by

both

parties

which

recognizes

the existence

of

such

a

contract."

23.

ProCD,

Inc.

86

F.3d

at

1452

(emphasis

added).

Part

of

this

Article's

position

is

that

"using"

software

as

courts

see

that

term

is

outdated.

Although

software

is

"used"

by

way

of

its

installation,

many

of

the issues

with

modem

videogame software

do not

present

themselves

until

after

a

customer

has

already

consented

to

a

EULA.

24.

Id.

25.

Id.

26.

Id.;

U.C.C.

§

2-602(1).

27.

Id.

The court

also

went

on to

add

that

"[c]ompetition

among

vendors,

not

judicial

revision

of

a

package's

contents,

is

how

consumers

are

protected

in

a

market

economy."

Id.

(citing

UNIVERSITY

OF

FLORIDA JOURNAL

OF

LA

WAND

PUBLIC

POLICY

Following

its

analysis, the court

held

that

the

terms

of

the EULA were

enforceable.

28

ProCD's

significance

in

the

context

of

today's

videogame

market,

as

discussed

in detail

below, cannot

be

overemphasized.

The

court's

holding

in

ProCD

is

dependent

on

the consumer

having

the

ability

to,

as

the

court

put

it,

"tr[y]

out

the

software."

29

It

also

referenced

the

buyer's

opportunity for

a

"detailed

review" following

the

software's

purchase

at the store,

but

before

her

acceptance

of

the

EULA.

30

That

is

not

how

modem

day

videogame transactions

work.

Instead

of

the

step-

by-step

chance

for review

a

customer

of

ProCD had

under

the

Seventh

Circuit's

view,

consumers

today

are

now

bound

by

the

terms

of

the

EULA

the

moment

they

purchase

the videogame

at

the store

or

online,

and

are

stuck

with

videogames

they

otherwise

would

have

returned

had

they

been

afforded

the

opportunity

for

a

"detailed

review."

3

1

B.

Videogames

as

Service

Contracts

Under

the

Common

Law

While

some courts

view

contracts

for

the

sale

of

software

as

contracts

for

the

sale

of

goods,

other

courts

have

held,

depending

on the

facts

before

them, that

the

sale

of

software

is

a

purchase

of

a

service.

A significant

case

highlighting

this distinction

is

Conwell

v.

Gray

Loon.

32

In

this

case,

the

Indiana

Supreme

Court

analyzed

whether

a

contract

for

the

creation

and

publication

of

an

Internet

website

was

one

for

the

sale

of

a good

or

a

service

contract.

33

In

Gray

Loon,

a

company

called

Piece

of

America

contacted

Gray

Loon

to

design

and

publish

to the

Internet

a website

so

that

it

could

sell

individual square-inch

parcels

of

land

to

customers.

34

A

year

after

Gray

Loon

created

and

published

the

website,

the

owners

of

Piece

of

America

contacted

Gray

Loon

so

that

it

could

add

additional

features

to

its

current

website.

3

5

The

requests

were

approved,

but

neither party memorialized

their

agreement

in

writing.

36

Gray

Loon

did

not

save

an

older

version

of

the

website before

it

started

to

make changes.

37

Once

the

additions

were

Digital

Equip.

Corp.

v.

Uniq

Digital

Techs.,

Inc.,

73

F.3d

756

(7th

Cir.

1996)).

28.

Id.

at

1455.

29.

Id. at

1453.

30.

Id.

31.

Id.

32.

Conwell

v.

Gray

Loon

Outdoor

Mktg.

Grp.,

Inc.,

906

N.E.2d

805, 811

(Ind.

2009).

33.

Id.

at

808.

34.

Id.

35.

Id.

36.

Id.

37.

Id

A

portion

of

their

contract

over

the

original agreement

to make

the initial

website

stated:

"It

is

Gray

Loon's

philosophy

that

clients

have

purchased

goods

and services from

us

and

that

inherently means ownership

of

those

goods

and

services

as

well."

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complete,

Gray

Loon

sent a

bill

to

Piece

of

America,

but

it

no longer

wanted

to

use

the

new version

of

the

website

and

decided

not

to

pay

the

bill.

38

Following

a series

of

events whereby

Gray

Loon attempted

to

collect

on its

invoices,

Gray

Loon

sued

Piece

of

America

for

nonpayment.

39

Piece

of

America

countersued

for conversion

for Gray

Loon's

failure

to

save

a

version

of

the

original

website.

40

The

issue

in

the

case

was

whether

the

contract,

to

create

and

publish

a

website between

the

parties,

was

one

for

the

sale

of

a

good

or

a

service

contract.

41

Piece

of

America

argued

that

the

law

of

the

case

was the

common

law,

and

that

its

contract

with

Gray

Loon

constituted

one

for

services

only

and

was

not

one

for

the

sale

of

goods.

42

The

test

cited

by

the court

in

making

its

decision

was

the

"predominant

thrust"

test.

43

The

court

noted

that

scholars

were

still

attempting

to address

the

issue

of

how

to

treat

contracts

for

the

sale

of

software.

44

Referencing

efforts

by

the American Law

Institute

and

the

National

Conference

of

Commissioners

of

Uniform

State

Laws,

the

court

noted

that

the

determination

of

whether

a

software

or

Internet

contract

is

one

for

a

good

or

a

service

has

to

do

with

how

and

where

the

subject

item

of

the

contract

was

created

or

transmitted.

45

After

discussing

the

Indiana

Court

of

Appeals'

split

on the

issue,

the

court stated

that

the law

seemed

to indicate

that

a

contract

for

the

sale

of

customized,

unique software

is

a

service

contract,

while

a

contract

for

the

sale

of

a

pre-made,

mass-produced

software

is

one

for

the

sale

of

a

good.

46

But

it

cautioned

that

"[W]hen

courts

try

to

pour

new

wine

into

old legal

bottles,

[they]

sometimes miss

the

nuances."

47

The

court

went

on

to

state

that

one

of

its

lower courts

of

appeal

held

that

the

sale

of

customized

computer

software

was

not

a

sale

of

goods

contract.

48

According

to

that

court, the

sale

of

software

was

a

service contract

akin

to one

wherein

a

client

seeks

a

lawyer's

advice.

49

As

that

court

put

it:

38.

Id.

39.

Id.

at

808-09.

40.

Id.

at

809.

41.

Id.

at

8

10-11.

42.

ld.

at810.

43.

Id.

at811-12.

44.

ld.

at811.

45.

Id.

("Where

software

is

contained

in

a

tangible

medium,

especially

when

produced

on

a

mass

scale,

courts

have had

a

difficult

time

placing software

into the

established

categories.

Unsurprisingly, this

challenge

has

prompted

suggestions

that

a new

legal

paradigm

may

be

needed.").

46.

Id.

at

811-12

47.

Id.

at812.

48.

Id.

at811-12.

49.

Id.

at

812

(citing Data

Processing

Servs.,

Inc.

v.

L.H.

Smith

Oil

Corp.,

492

N.E.2d

314,

319

(Ind.

Ct.

App.

1986)).

UNIVERSITY

OF

FLORIDA JOURNAL

OF

LA

WAND

PUBLIC

POLICY

While

a

tangible

end

product,

such

as

floppy

disks,

hard disks,

punch

cards

or

magnetic

tape

used

as a

storage

medium

for

the

program

may

be

involved

incidentally

in

this transaction,

it

is

the

skill

and knowledge

of

the programmer

which

is

being purchased

in

the

main,

not

the devices by

which

this

skill

and

knowledge

is

placed

into

the

buyer's

computer.

The

means

of

transmission

is

not

the

essence

of

the

agreement.

5°

The

court

also

discussed another

case

which held

that

a

contract

for

the

sale

of

goods

existed

where

the

good sold

was

"pre-existing,

standardized" software.

51

Because

Piece

of

America

contacted

Gray

Loon

to

perform

the service

of

building

a

website

tailored

to

their

orders,

the

court

held

that

the

predominant

thrust

doctrine suggested

that the

UCC

did

not

apply

to

the

contract

at

issue.

5

2

The analysis

of

the

Gray

Loon

court

is

significant

because

it

mentions

a

common

response

to

consumer

advocates

that

call

for

reform

in

the

videogame

industry:

that

consumers

are

not

purchasing merely

a

physical

disc with

a

piece

of

software

on

it,

but

they

are

purchasing

the

"skill and

knowledge"

of

programmers

who

designed

the

videogames

they

purchased.

In

other

words,

despite the

fact

that these

videogames

can

be

mass-produced

like

a

car

or widget,

customers

are

actually

paying

for

a

videogame

developer's

service

in

designing

the

game, not

the

physical

CD-ROM

as a

good.

In

courts across the

county

that

adopt

this

interpretation,

any

issues

consumers

have

with

the

videogames

they

purchased

are

subject

to change

or

redress

by

the

videogame's

publisher

by

way

of

the

"service"

element

of

their

contract,

and

consumers

do

not

have a

right

upon

purchase

to

reject broken

videogames within

the

meaning

of

the

UCC.

C.

New

Wine,

Old

Bottles

Case

law

among

both

state

and

federal

courts

are

split

on the

issue

of

whether

a

contract

for

the

sale

of

a

videogame

is one

for a

service

or

good.

Ideally, consumers

in

jurisdictions

that

hold

videogames

as

goods

under

the UCC

would

be

entitled

to

typical

buyer's

remedies

in

the

UCC,

but,

as

shown

below,

all

of

these

rights

are

written out

by

contract anyway.

Nonetheless,

it

is still

an

issue

worth

addressing

so

that,

at

the

very

least,

50.

Id.

(quoting

Data

Processing

Servs., Inc.

v.

L.H.

Smith

Oil

Corp.,

492

N.E.2d

314,

319

(Ind.

Ct. App.

1986)).

51.

Id.

(citing

Olcott

Int'l

&

Co.

v.

Micro Data Base

Sys.,

Inc.,

793

N.E.2d

1063,

1071

(Ind.

Ct.

App.

2003)).

52.

Id.

(stating

that

"to

be

sure,

one

can

copy

a

website

using

tangible,

movable

objects

such

as

hard

drives,

cables, and

disks.

These

objects

are

in

themselves

just

as

certainly

goods,

but

it does

not

necessarily follow

that

the

information they contain classifies

as

goods

as

well...").

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consumers

have

an

opportunity

to

argue

that

provisions

of

EULAs

are

unconscionable.

5

3

It

was

perfectly reasonable

to

consider

provisions

of

videogame

contracts

(whether

they be

service contracts

or

goods)

that

limit

a

buyer's

remedies

and

rights

as

reasonable

during

the

time

when

ProCD

and

Gray

Loon

were

decided

(1999

and 2009,

respectively).

During

those

years,

consumers

would

have

no

reason

to return software

because

it

would

work

properly.

So,

when

a

ProCD customer purchased

software,

open

the

package,

and

installed

the

program

on

their

computer,

within

the

first

few

minutes

of

its

use

they

would

know

that

the

program

ran

properly.

As

shown

below

in

the

this

inspection process

is

not

so

simple

in

the

context

of

modem

day

videogames.

If

anything,

the

past

two

years

have shown

that

EULAs

which

write

out

a

consumer's

remedies ought

to

be

considered

per

se

unconscionable.

II.

BROKEN

RELEASES

Too

many

high-profile videogame

releases

over

the

past

few years

have

been

released

in a

state

that

most consumers

and

observers

of

the

industry

call

"broken."

54

Much

like

the

Pac-Man

example

discussed

above, these

videogames

are

released

in

states

where

player-controlled

protagonists

get

stuck

in

walls, consumers

cannot

connect

to

online

multiplayer

servers,

and

features players

were

promised

pre-release

in

advertisements or demos

are

nowhere

to

be

found.

This

Part

will

review

some

of

the

most

broken

videogame

releases

to

date and

highlight

the

stark

contrast

between

what

consumers

are

promised

before the

buy

the

videogame,

what

they

get

when

after

they

buy

it,

and

how

they

are

left

out

in

the cold

when they

try

to

try

to

hold

videogame

publishers

accountable for

releasing

videogames

that

do

not

work.

A.

Batman:

Arkham

Knight

Today,

most

videogame

consumers

play

their

games

on

one

of

three

platforms:

the

Xbox

One,

the PlayStation

4,

or

a

personal

computer

53.

UNIFORM

COMMERCIAL

CODE

§

2-302(1)

(stating

that

"(1)

If

the

court

as

a

matter

of

law

finds

the

contractcontract

or

any

clause

of

the

contract

to

have

been

unconscionable

at

the

time

it

was made

the

court

may

refuse

to

enforce the contract,

or

it

may

enforce

the

remainder

of

the contract

without

the

unconscionable

clause,

or

it

may

so

limit

the

application

of

any

unconscionable

clause

as to

avoid

any

unconscionable

result"

and

"(2)

when

it

is

claimed

or

appears

to

the court that

the

contract

or

any

clause

thereof

may

be

unconscionable

the parties

shall

be

afforded

a

reasonable

opportunity

to

present

evidence

as to

its

commercial

setting,

purpose

and

effect

to

aid

the

court

in

making the

determination...").

54. Luke

Plunkett,

New

Video

Games

Shouldn't

Be

So

Broken,

KOTAKU

(Nov.

13,

2014,

10:35

PM),

http://kotaku.com/new-video-games-shouldnt-be-so-broken-1658570535.

UNIVERSITY

OF

FLORIDA

JOURNAL

OF

LAW

AND

PUBLIC

POLICY

(PC).

55

More

often

than not,

videogames

are

released

exclusively

to

either

the

Xbox

One

or

PlayStation

4.56

Fans

of

the

"Batman:

Arkham"

series

published

by

Warner Bros.

Interactive

Entertainment

were

excited

to

learn

that

the

upcoming

release

of

Batman:

Arkham Knight

was

going

also

to

be

released

on

the

PC,

bucking

the

trend

of

the

industry's

console-

exclusive

releases.

Prior

to

the

videogame's

release,

it

was

advertised

that

PC

users would

only

need

six

gigabytes

of

ram

to

run

the

videogame

at

recommended

settings.

57

However,

even

with

the

most

up

to

date

graphics

cards

and

processors,

PC

users still

had

problems

with

the

game

not

running smoothly

and

having

significant input

lag,

making

it

impossible

to

fight

enemies

and

properly

control

vehicles.

58

Many

players

were

not

even

able

to

get the

game

to

start

after they

downloaded

it

to

their

computers.

5

9

Publishers

and

developers

of

the

videogame,

including

subcontractors

responsible

for different

aspects

of

the

game's

production,

promised

to

get

the

videogame's

bugs

corrected

as

quickly

as

possible.

60

Even

after

"patches"

were

released

by

the

companies

to

correct

the

videogame's

problems,

many

of

the

issues

continued

to

plague

users and

continued

to

prevent

the

game

from

working

properly.

61

Warner

Bros.

pulled

the

55.

See

generally

Ben

Gilbert,

The

PlayStation

4

is

the

Most

Popular

Game

Console

in the

World

(Still),

TECH

INSIDER

(Jan.

5,

2015,

1:36

PM),

http://www.techinsider.io/playstation-4-

sales-as-of-january-2016-2016-1.

56.

Rob

Crossley,

A

Call

to

End

the

Console

Exclusive

Arms Race,

GAMESPOT

(Dec. 22,

2014),

http://www.gamespot.com/articles/a-call-to-end-the-console-exclusive-arms-race/1

100-

6424137/.

57.

Patrick

Klepek,

Batman:

Arkham

Knight's

PC

Version

is

Far

from 'Fixed',

KOTAKU

(Oct.

29,

2015,

3:30

PM),

http://kotaku.comlbatman-arkhan-knight-s-pc-version-is-far-from-

fixed-]

739462839.

58.

Alac

Meer,

The

Arkham

Knight

Re-Release

Isn't

Going

Down

Well,

RocKPAPERSHOTGUN

(Oct.

29,

2015,

10:26

AM),

https://www.rockpapershotgun.com/2015/10/

29/batman-arkham-knight-problems/.

59.

Frank

the Tank,

Batman:

Arkham

Knight

has

Stop

Working

Error,

STEAM

(Oct.

29,

2015,

11:39

AM),

http://steatncommunity.com/app/208650/discussions/0/49012446645933

4548/.

60.

Tom

Sykes,

Rocksteady

"Working

Like

Crazy"

To

Help

Fix

Arkham

Knight,

PC

GAMER,

http://www.pcgamer.com/rocksteady-working-like-crazy-to-help-fix-arkham-knight/.

61.

Richard

Leadbetter,

New

Arkham

PC

Patch

Doesn't

Solve

Underlying

Issues,

EuroGamer

(Nov.

26,

2015),

http://www.eurogamer.net/articles/digitalfoundry-2015-batman-

arkham-knight-pc-performance-still-falls-short.

[Wlith

a

third patch promising

performance enhancements,

we're

still

unable

to

run

Arkham

Knight

at

a

locked 1080p60.

We

re-tested

GTX

970

performance,

this

time

paired with

a

Core

i7

6700K

and

16GB

of

2666MHz

DDR4.

Stutter

is

still

fairly common,

even

though

GPU

utilisation

lay

between

75

to

85

per

cent.

The drop

in

performance

does

seem

to

be

down

to

VRAM streaming

issues,

as

dropping

from

high

quality textures

to normal sees

a

small

but

tangible

improvement.

The

issue

we

have

is

that

we

should

not

be

seeing

any

particular

[Vol.

27

RATED

"M"

FOR

MISLEADING

videogame

from

digital

stores,

and

offered

its

customers

refunds for the

game.

62

Unfortunately,

only

digital

customers

were

entitled

to

a

refund.

63

And

if

a

PC

user

paid

for

extra,

downloadable

content

that

was

sold as

add-ons

to

the

videogame

after

its

release,

they

could

not

get

a

refund

for

that

content

(even

though

they

were

unable

to

play

or

use

it,

unlike

Xbox

One

or

PlayStation

4

users).

64

To

all

other customers

who

bought the

physical

disc at

a

big box

store,

Warner

Bros.

promised

to

try

to

fix

the

game's

issues,

but

made

no

guarantees

that

it

would

and-to

this

day-

problems

continue

to

plague

the

game

from

properly

running

on

PC.

6

5

Following

the

game's

release and

the

subsequent

outcry from

angry

customers, the

issue

of

whether

Warner

Bros.

knew

of

these

problems

before

the

videogame's

release

arose.

Some

reports

even

suggested

that

people who

worked

on the

videogame

knew

about

these

game-breaking

problems

upon

release,

but

decided

to

publish

it

on

the

PC

anyway.

66

Videogame

critics

also

discussed how

Warner Bros.

had

not

provided

them

with

a

PC

version

of

the

game

to

review

before

the

game's

release,

instead

only

providing

them

with

console

versions

of

the game.

67

The

frustration

surrounding

the

Batman:

Arkham

Knight's

release

and

ongoing

problems

did

not

go

unnoticed.

Giant

Bomb,

a

popular

videogame

news and

entertainment

website,

awarded

Batman:

Arkham

Knight

its

2015

"Hottest

Mess"

award.

6

8

In

justifying

the

award,

Jeff

problem

here,

because

according

to the

game's

VRAM

allocation meter,

4GB

is

more

than enough memory

to

run the

title

maxed

at

1080p.

Id.

62.

David

Murphy

&

Sean

Buckley,

Warner

Bros.

Offers

Refunds

For

'Batman:

Arkham

Knight'

on

PC,

ENGADGET

(Oct.

31,

2015),

http://www.engadget.com/2015/1

1/01/warner-bros-

offers-refunds-for-batman-arkham-knight-on-pc/;

David

Murphy,

Warner

Bros.

Offers

More

Refunds

for

Batman: Arkham Knight

on

PC,

PC

MAG

(Oct.

31,

2015),

http://www.pcmag.com/

article2/0,2817,2494239,00.asp/.

63.

Buckley,

supra

note

73.

64.

Id.

65.

Id.

66.

Patrick

Klepek,

Sources:

Warner

Bros.

Knew

That

Arkham

Knight

PC

Was

A

Mess

For

Months,

KOTAKU

(July

1,

2015),

http://kotaku.com/sources-warner-bros-knew-that-arkham-k

night-pc-was-a-

1714915219.

67. Phil

Savage,

Batman:

Arkham

Knight's

PC

Port

Appears

to

be

a

Disaster,

PC

GAMER

(June

22,

2015),

http://www.pcgamer.com/batman-arkham-knights-launch-appears-to-be-a-

disaster/.

68.

Giant Bomb

Staff,

Game

of

the

Year

Awards

Day

3

Recap,

GIANT

BoMB

(Dec. 30,

2015),

http://www.giantbomb.com/articles/giant-bombs-2015-game-of-the-year-awards-day-thre

e/I 100-5318/.

[E]very

year

we

crown the

hottest

mess

in

a variety

of

forms.

In

some

years,

it's

games

that

were

so

broken

that

they

required

apologies

from

the

publishers.

In

some

years,

it

might

be

an

entire

company that has managed

to

bungle

things

on

such

a

massive scale

that

they overshadow

any one

game or

moment.

This

year's

UNIVERSITY

OF

FLORIDA

JOURNAL

OF

LA

WAND

PUBLIC

POLICY

Gertsman,

Giant

Bomb's

editor-in-chief,

stated that in

"terms

of

an

outright

betrayal

of

consumer trust,

[Batman:]

Arkham

Knight

is

the

one."

69

Adding

insult

to

injury,

it

is

rumored

that

Warner

Bros.

is

planning

on

releasing

a

special

"Game

of

the

Year"

edition,

allowing

consumers

to

pay

Warner

Bros.

for

a

second

time

for the

chance

that

the

game

might

actually

work

on

their

PC.

70

Given

the

utter

inability

for

this

product

to

run

properly

it

is

not

surprising

that

its

EULA

is

not

consumer-friendly,

and

gives

the

customer

no

means

of

seeking

redress:

5.

DISCLAIMER

OF

WARRANTIES.

THE

GAME

IS

PROVIDED

TO

YOU

ON

AN "AS

IS"

"AS

AVAILABLE"

BASIS

WITHOUT REPRESENTATIONS

OR

WARRANTIES

OF

ANY KIND, EXPRESS

OR IMPLIED,

INCLUDING

WITHOUT LIMITATION

THE IMPLIED

WARRANTIES

OF

MERCHANTABILITY,

FITNESS FOR

A

PARTICULAR

PURPOSE,

NON-INFRINGMMENT

AND

AVAILABILITY.

6.

LIMITATION

OF

LIABILITY.

IN

NO

EVENT

SHALL

WB

GAMES,

ITS

PARENT,

SUBSIDIARIES

OR

AFFILIATES

BE

LIABLE

FOR

ANY

LOSS

OR

DAMAGE

OF

ANY

KIND ARISING

OUT

OF

OR

RELATING

TO THE

GAME

OR

ANY

USE

THEREOF,

INCLUDING

WITHOUT LIMITATION

ANY

LOSS

OF

DATA

OR

GOODWILL,

DISRUPTION

OF

SERVICE

OR

CLAIMS

OF

THIRD

PARTIES.

IN

NO

EVENT

SHALL

WB

GAMES,

ITS

PARENT, SUBSIDIARIES

OR

AFFILIATES BE LIABLE

FOR

ANY

INDIRECT,

INCIDENTAL, EXEMPLARY,

PUNITIVE,

LIQUIDATED,

OR

OTHER CONSEQUENTIAL

DAMAGES,

WHETHER

UNDER

CONTRACT,

TORT

(INCLUDING

NEGLIGENCE),

STRICT

LIABILITY

OR ANY

OTHER

THEORY

OF

LIABILITY, ARISING

FROM

YOUR

USE

OF

winner

has

a

little

bit

of

everything.

Actually...

it

has

a

lot

of

everything...

Id.

69.

Giant

Bomb

Staff,

Giant

Bomb's

Game

of

the

Year

2015,

Day

3,

GIANT

BoMB

(Dec.

30,

2015),

http://v.giantbomb.com/podcast/GiantBomb's-Game

of

theYear_2015_DayThr

ee-1

2-30-2015-8276229504.mp3.

70.

Saad Dada,

Game

of

the

Year

Edition: Batman:

Arkham

Knight's

Second

Chance

on

PC,

BIDNESS

ETC.

(Feb.

22,

2016), http://www.bidnessetc.com/63941

-game-of-the-year-edition-

batman-arkham-knights-second-chance-on-pc/.

[Vol.

27

RATED

"M'"

FOR

MISLEADING

THE

GAME

(INCLUDING

WITHOUT

LIMITATION

THE

GAME).

71

Warner

Bros.,

on the other

hand,

is

entitled

to

damages

for

a

consumer's

breach

of

the

EULA:

10.

Remedies.

You acknowledge

that

WB

Games

may suffer

irreparable

damage

if

you

breach

any

of

the

provisions

governing

license

limitations

or

ownership.

You

therefore

agree

that

if

you

do

breach

either

of

these

provisions,

in

addition

to

provable damages

and

reasonable

attorneys'

fees,

WB

Games

shall

be

entitled

to

enjoin

such

breach

and

to

obtain

specific

performance

of

such

provisions

in any

court

of

competent

jurisdiction.

7

2

Considering

the

evidence that

Warner

Bros.

knew

of

the

videogame's

problems

before

its release,

it

is

not surprising

that

Warner

Bros.

would

seek

to

bar

a

private

cause

of

action

and

class

action

treatment:

12.

Dispute Resolution

and

Governing

Law.

Binding

Arbitration.

Any

dispute,

controversy

or

claim

this

Agreement

("Dispute")

(except those

Disputes

expressly

excluded

below)

that

cannot

be

resolved

through

informal

negotiations

shall

be

finally

and

exclusively

resolved

by

binding

arbitration.

Any

election

to

arbitrate

by

one

party

shall

be

final

and

binding

on the

other.

YOU

UNDERSTAND

THAT

ABSENT

THIS

PROVISION,

YOU

WOULD

HAVE

THE RIGHT

TO

SUE

IN

COURT

AND

HAVE

A

JURY TRIAL.

73

The

terms

of

this

EULA

are

the

industry

standard.

74

71.

Batman: Arkham

Knight-

End

User

License

Agreement,

http://store.steampowered.

com//eula/208650

eula

I.

72.

Id.

73.

Id.

74.

See

Benjamin

Shiekman,

The

Current

Usage

and

Enforcement

ofArbitration

Clauses

Post-Stern:

Have

No

Fear,

25

U. FLA.

J.L.

&

PUB.

POL'Y

165,

167

(2014)

(stating

that

the

public

view

of

arbitration

clauses

are

contracts

of

adhesion

where

consumers

have

no

choice

but

to

consent

to

their

use);

See

also

Jordan

Nahmias,

The

EULA:

What

it

Does,

How

it

Works

(And,

What

Does

EULA

Even

Mean?),

NAHMIAS

LAW

(Nov.

23,

2011),

http://www.nahmiaslaw.com/

the-eula-what-it-does-how-it-works-and-what-does-eula-even-mean/.

UNIVElRSITY

OF

FLORIDA

JOURNAL

OF

LA

WAND

PUBLIC

POLICY

B.

Halo:

The

Master

Chief

Collection

Microsoft

and

its

original

Xbox

console

was

put

on the

gaming

map

in

2001

when

the

original

Halo:

Combat

Evolved

released

as

an

Xbox

exclusive.

5

Consumers

of

the

videogame

lauded

it

for

its

smooth

frame

rate,

ability to

handle

local-multiplayer

modes

with

sixteen

players,

and

in-game

content.

76

For years

to

come,

similar

success

was

replicated

by

Halo

2,

Halo

3,

and

Halo

4

for

subsequent

versions

of

the

Xbox.

77

Hoping

to

capitalize

on

this

success and

test

interest

for

a Halo

5

release on

the

soon-to-be-released

Xbox

One,

Microsoft

and

343,

a

videogame

developer

and

Microsoft

subsidiary,

decided

to

bundle

all

of

these

games

together

in

a

game

called

Halo: The

Master

Chief

Collection.

7

8

Like

other

Halo games before

it,

the

game

was

going

to

be

exclusive

to the Xbox

One.

7

9

However,

the

game's

release

was

a

huge

flop.

80

The

primary

selling

point

of

Halo: The

Master

Chief

Collection

was

that

all

Xbox

One

users would

be

able

to

play

any

Halo

game

online with

one

another.

81

A

player could

hop

from

a

Halo

2

multiplayer

match right

into a Halo

4

multiplayer

match.

82

However,

upon

release,

Xbox

One

users

were

not

able

to

connect

to

online

servers and

had

to

wait

hours

in

order

to

get

into

an

online match.

83

When

they

were

finally

able

to

connect,

the

games

lagged

and

did

not

run

well.

84

Many users reported

75.

Taylor

Soper,

Halo's

Success

by the

Numbers:

46

Million

Games,

$3

Billion

in

Revenue,

GEEKWIRE

(Nov.

1,

2012),

http://www.geekwire.com/2012/halos-success-numbers-46-

million-games-3-billion-revenue/.

76.

See

Joe

Fielder,

Halo

Review,

GAMESPOT

(Nov.

9,

2011),

http://www.gamespot.com/

reviews/halo-review/1900-2823816/.

77.

Id.

78.

See

Ryan

McCaffrey,

The

Real

Reason

Halo:

The

Master

Chief

Collection

Exists,

IGN

(June

9,

2014),

https://www.ign.com/articles/2014/09/09/the-real-reason-halo-the-master-chief-

collection-exists.

79.

See

Colin

Campbell,

Halo:

The

Master

Chief

Collection,

POLYGON,

http://www.polygon.com/a/e3-2014/halo-the-master-chief-collection.

80.

Id.;

see

Paul

Tassi,

The

Nightmare

Continues

As

'Halo:

The

Master

Chief

Collection'

Cancels

Its

Own

Tournament,

FORBES

(May

1,

2015,

12:13

PM),

http://www.forbes.com/sites/

insertcoin2015/05/01

/the-nightmare-continues-as-halo-the-master-chief-collection-cancels-its-

own-toumarnment/#3e8ad9662be8.

81.

Stuart

Andrews,

Halo:

Master

Chief

Collection

Review,

TRUSTED

REVS.

(Nov.

7,

2014),

http://www.trustedreviews.com/halo-the-master-chief-collection-review.

82.

Id.

83.

Kyree

Leary,

Halo:

Master

Chief

Collection

Launch Not

Going

Very

Well,

GAMERANT

(Feb.

28,

2016),

http://gamerant.com/halo-master-chief-collection-connection-server-issues/

(stating

that

"launch

day

players

eager

to

jump

into

the

collection's

online

modes

and

relive

the

multiplayer

of

Halos

past

have

unfortunately

been

met

with

matchmaking

issues

that

leave them

waiting

in

matchmaking

lobbies

for

unreasonable

spans

of

time.

Oftentimes

resulting

in

no

results.").

84.

Id.

[Vol.

27

RATED "M"

FOR

MISLEADING

that

they

were

unable

to

connect

into

any

online

game

whatsoever.

8

5

Publishers

of

the

game

released

a

standard

issue press

release

following

the

release

of

a

broken

game,

apologizing

for

the

issues

its

consumers

had

with

the

game,

and

promising

to

fix

these

issues

as

soon

as

possible.

86

Two

and

a

half

months

after

its

release,

users

were still

unable

to

connect

online.

87

VG24/7,

a

popular

videogame

website,

wrote

that

the

game

had

"been

available

for

two-and-a-half

months

and

by

any

reasonable

standard

it

doesn't

work.",

8

The

issues

with

the

release

of

this

game

and

ongoing

problems

were

so

bad

that

Microsoft

and

343

had

to

cancel

a

large,

national

tournament

series,

touted

as

the

Halo

Championship

Series

with

huge cash

payouts

for the game,

because

of

community

outrage.

89

Worried

that

this failure

to

launch

would

affect

the

release

and

interest

in the

upcoming

Halo

5

game

for the

Xbox

One,

Microsoft

promised

that

Halo

5

would

not

have

any

of

the

same

problems

that

"Halo:

The

Master

Chief

Collection"

had.

9

0

To

date,

many

of

the

problems

with

the

Master

Chief

Collection

still'

persist,

and

users

are

stuck

playing

only

the

offline-only

functions

of

the

game.

91

Even

as

recently

as

March,

2016

users

are

still

complaining

on

the

official

website

that

the

game

does

not

work

and has

yet

to

be

repaired.

92

85.

Id.

86.

Bonnie

Ross,

A

Status

Update

from

Bonnie Ross,

HALO

(Nov.

24,

2014),

https://www.halowaypoint.com/en-us/community/blog-posts/a-status-update-from-bonnie-ross-

on-halo-the-master-chief-collection

(stating

that

"[o]n

Nov

11

th [343

Industries]

released

Halo:

The

Master

Chief

Collection.

The

goal

being

to

create

a

tribute

to

Halo

fans

around

the

world,

and

to

celebrate

the

Master

Chief's

debut

on

Xbox

One.

With

the initial

release

of

Halo:

The

Master

Chief

Collection,

however,

[343

Industries

has]

not delivered

the

experience

you

deserve.

I

personally

apologize

for

this

on

behalf

of

us

all

at

343

Industries.

Our

team

is

committed

to

working

around

the

clock

until

these

issues

are

resolved.").

87.

Richard

Stanton,

Halo:

The

Master

Chief

Disaster,

VG

24/7

(Jan.

26,

2015),

http://www.vg247.com/2015/01/26/halo-the-master-chief-disaster/

(stating

that

"over

two

months

since

release

and

Xbox

One's

big

Christmas

game

is

still a

turkey.").

88.

Id.

89. Pete

Haas,

Halo

5

Won't

Be

Broken

Like

Master

Chief

Collection, Microsoft

Says,

Cinema

Blend

(Apr.

28,

2016),

http://www.cinemablend.com/games/Halo-5-Won-t-Broken-

Like-Master-Chief-Collection-Microsoft-Says-71658.html.

90.

Id.

91.

Paul

Tassi,

The

Nightmare

Continues

As

'Halo:

The

Master

Chief

Collection'

Cancels

Its

Own

Tournament,

FORBES

(May

1,2015),

http://www.forbes.com/sites/insertcoin/2015/05/01/

the-nightmare-continues-as-halo-the-master-chief-collection-cancels-its-own-toumament/#7fba

5d6e2be8.

92.

StrikerMan780,

Force

343i

to

Fix

the

Deplorable

State

of

Halo:

The

Master

Chief

Collection,

XBox

FEEDBACK

(Feb.

26,

2016),

https://xbox.uservoice.com/forums/251647-

gaming-achievements/suggestions/12485970-force-343i-to-fix-the-deplorable-state-of-halo-th.

UNIVERSITY

OF

FLORIDA

JOURNAL

OF

LA

WAND

PUBLIC

POLICY

C.

Drive

Club

It did

not

take

long

for Sony

to

join

the

"releasing

broken

games"

club

(which

is

not

saying

much;

this

club

is

not

very

exclusive

these

days).

As

part

of

advertising

and

marketing

for

the release

of

the

PlayStation

4,

Sony

announced

that

PlayStation

users

could

subscribe

to

its

PlayStation

Plus

service

and

get

a

free

copy

of

"Drive

Club."

93

"Drive

Club"

was

advertised

as

the

motorsport

racing

game.

94

Consumers

of

the

game

were

promised

the

ability to

hop

onto

online

servers

and

race

their

friends.

95

Sony

also

promised

up-to-date

graphics

like

weather

effects and

a

photo

mode,

but

the

released

version

of

the game

did

not

have any

of

those

features.

9

6

Much

like

the many

problems

that

plagued

Halo:

The

Master

Chief

Collection's

online

multiplayer

features,

"Drive Club"

failed

to

deliver

on

its

multiplayer

features,

too.

97

Sony

ignored

customer

efforts

and

inquiries

about

refunds.

98

Even

"Drive

Club's"

developer

hinted

that

it

would

issue

refunds

by

giving

customers

a

different

videogame

for

free,

but

there

has

been

no

official

update

on

the

status

of

these

efforts.

99

D.

Battlefield

4

Battlefield

4

promised

to

have

a large and

robust

online

multiplayer

system

on the

PC

with

the

ability

to

host

64

online

players

at

once

with

93.

Owen

S.

Good,

Driveclub

Apologizes

for

Its Broken

Game

with

Free

DLC,

POLYGON

(Nov.

15,

2014),

http://www.polygon.com/2014/11/15/7225825/driveclub-apologizes-for-its-

broken-game-with-free-die.

94.

Id.

95.

Matt

Martin,

Driveclub

Has

Become

the

PlayStation

4"s

Biggest

Liability,

VG

24/7

(Oct.

23,

2014),

http://www.vg247.com/2014/10/23/driveclub-has-become-ps4s-biggest-

liability/

(stating

that

"what

should

have

been

a

standard-bearing

racer

for

Sony's

console

has

turned

into

ajumble

of

broken

promises,

unfinished

features

and

mediocre

gameplay.").

96.

Id.

97. Jason

Schreier,

Three

Weeks

Later,

DriveClub

Still

Doesn't

Work

Properly,

KOTAKU

(Oct.

28,

2014),

http://kotaku.com/three-weeks-later-driveclub-still-doesnt-work-properly-

1651731762

(stating

that

"so

for

twenty-one

days

now,

the

game

has been

essentially

crippled.").

98.

Jason

Schreier,

Big

Game

Launches.

Has

Server

Problems.

Again.,

KOTAKU

(Oct.

13,

2014)

http://kotaku.com/big-game-launches-game-has-server-problems-again-

1645713232.

99.

Eddie

Makuch,

As

Driveclub

Issues

Persist,

Dev Says

It's

Considering

Player

Compensation,

GAMESPOT

(Oct.

13,

2014),

http://www.gamespot.com/articles/as-driveclub-

issues-persist-dev-says-its-consideri/1

100-6422916/

("Rustchynsky

also

says

that

Evolution

has

not

ruled

out offering

some

kind

of

compensation

for

early

adopters,

though

it

remains

to

be seen

if

this

would

be

in

the

form

of

free

DLC

or

something

else.

He

also

had

no

update

to

provide

regarding

when

the

free

PlayStation

Plus

version

of

Driveclub

would

be

released,

but

said

fans

can

expect

a

'new

update'

on the

game

sometime

later

today.").

[Vol.

27

RATED "M"

FOR

MISLEADING

huge

maps

in

1080p.

100

However, technical bugs plagued

its

release.'

0

'

One

report

stated

that

consumers "have

been reporting disconnection

errors,

freezes,

crashes and

a

smattering

of

bugs."

10 2

Issues with

the

videogame

were

so

persistent

and

ongoing

that

the developers created

a

group

called "Community

Test

Environment"

wherewere

players would

"test"

versions

of

the

game

that

sought

to

fix

the

botched

release.

10

3

Developers promised that

the

Battlefield would

not

be

plagued

with

the

same

problems.

10

4

Battlefield

4's

EULA

is

not

so

consumer-friendly

either:

7.

Disclaimer

of

Warranties.

EXCEPT

FOR

THE

LIMITED WARRANTY

ON

RECORDING

MEDIA,

IF

APPLICABLE, AND

TO

THE

FULLEST

EXTENT

PERMISSIBLE UNDER APPLICABLE

LAW,

THE

SOFTWARE

IS

PROVIDED

TO

YOU

"AS

IS,"

WITH

ALL

FAULTS,

WITHOUT

WARRANTY

OF

ANY

KIND,

WITHOUT

PERFORMANCE

ASSURANCES

OR

GUARANTEES

OF

ANY KIND,

AND

YOUR USE

IS

AT

YOUR

SOLE

RISK.

8.

Limitation

of

Liability.

TO

THE

FULLEST EXTENT

PERMISSIBLE

BY

APPLICABLE

LAW,

IN

NO

EVENT

SHALL

EA,

ITS

SUBSIDIARIES

OR

ITS

AFFILIATES

BE

LIABLE

TO

YOU

FOR

ANY PERSONAL INJURY, PROPERTY DAMAGE,

LOST

PROFITS, COST

OF

SUBSTITUTE

GOODS

OR

SERVICES,

LOSS

OF

DATA, LOSS

OF

GOODWILL,

WORK

STOPPAGE, COMPUTER FAILURE

OR

MALFUNCTION

OR

ANY

OTHER

FORM

OF

DIRECT

OR

INDIRECT,

SPECIAL,

INCIDENTAL, CONSEQUENTIAL

OR

PUNITIVE DAMAGES

100.

Wesley

Yin-Poole,

EA

Addresses

Unacceptable

Battlefield

4

Launch,

EUROGAMER

(June

6,

2014),

http://www.eurogamer.net/articles/2014-06-19-ea-addresses-unacceptable-

battlefield-4-launch.

101.

Brian

Crecente,

Battlefield

4

Plagued

With

Problems,

POLYGON

(Dec.

4,

2013),

http://www.polygon.com/2013/12/4/517571 0/battlefield-4-troubleshooting-problems.

102.

Tom

Senior,

Battlefield

4

Dogged

by

Major

Launch

Issues:

Connection

Errors,

Glitches, Dodgy

Netcode,

PC

GAMER

(Nov.

3,

2013)),

http://www.pcgamer.com/battlefield-4-

dogged-by-major-launch-issues-connection-errors-glitches-dodgy-netcode/.

103.

Steve Marinconz,

Battlefield

4

May

Have

Just

Fixed

That Thing

You

Hate,

KOTAKU

(Oct.

1,

2014),

http://www.kotaku.com.au/2014/10/battlefield-4-may-have-j

ust-fixed-that-thing-

you-hate/.

104.

Christopher

Gates,

How

EA

is

Avoiding

'Battlefield

4'

Issues

With

'Hardline',

GAMERANT

(2015),

http://gamerant.com/battlefield-4-issues-hardline/.

UNIVERSITY

OF

FLORIDA

JOURNAL OF

LA

WAND

PUBLIC

POLICY

FROM ANY CAUSES

OF

ACTION

ARISING

OUT

OF

OR

THIS

LICENSE OR

THE

SOFTWARE,

WHETHER

ARISING

IN

TORT

(INCLUDING

NEGLIGENCE),

CONTRACT,

STRICT

LIABILITY

OR OTHERWISE,

WHETHER

OR

NOT

EA

HAS

BEEN

ADVISED

OF

THE

POSSIBILITY

OF

SUCH

DAMAGE.

By

entering

into

this

Agreement,

you

and

EA expressly waive

the

right

to

a

trial

by

jury

or

to

participate

in

a

class

action.

1

0 5

E.

Assassin

's

Creed

Unity

Assassin's

Creed Unity

was

the

follow

up

to

the

highly

successful

and

critically

acclaimed

Assassin's

Creed:

Black

Flag.l16

However,

technical

bugs

and

glitches

prevented

both

its

single

player

and

multiplayer

functions

from

working

properly.'

07

On the

first

day

of

its

release,

players

reported

issues

with

the

main

character

falling

through

the

ground

and

ending

their

game,

crashing when

joining

a

co-op

session,

the

main

character

getting

caught

inside

of

hay carts,

and

delays in

reaching

the

main

menu

screen

at

game start."

8

There

were also

significant issued

with

slow

frame

rates, glitches

during

in-game animations,

and,

levitating

background

characters.

1

0

9

Ubisoft prevented

review

websites

from releasing

their

reviews

for

up

to

twelve hours

after the

videogame's

launch, leaving

many

customers

with

no

idea

that

the

videogame

was

unplayable.11

0

Commercials

and