There were reports earlier this week that Valve may be ordered by an Australian federal court to pay $3 million in damages as a result of illegal return policies on games. This refers to when the Steam refund policy was but a twinkle in Gabe Newell's eye. In any other context, those who receive faulty goods are usually entitled to their money back on producing a receipt, so it’s easy to see why the Aussie judiciary might decide this smells like a stinking heap of manure.
I’ve discussed in the past what constitutes a “complete” game, in the sense of how contract law may step in to get the consumer their money back or damages from an English law point of view (since I am a dyed-in-the-wool limey). I tried to stress how the attitude of “buyer beware” doesn’t hold true in all contexts but rather we do go an extra mile to protect the more vulnerable consumer from the more knowledgeable businessman. Furthermore, if you don’t get a significant performance of your contract, you can “rescind” it, i.e. walk away and get your money back.
Say you pre-order the much-hyped AAA action game, Brutal Face-Smasher XXX 56: Revelations. Online, it lists the required and optimal system specifications. Your machine meets the required system specifications and some of the optimal system specifications. After the game has fully downloaded on release day, it freezes up your machine on trying to start the game. A patch is never released, as the production company, Chocolate Fireguards Inc., drops off the face of the Earth and deletes all social media channels. Under any reading of the facts, there has not been substantial performance, and the consumer can walk away from the contract completely and get their money back if they take legal action.
This is only a part of the puzzle with “defective products”, though. A defective household appliance is not just a contractual issue; it can cause property damage, injury or even death. With games and gaming equipment, it may be harder to see the relevance of this compared to a microwave potentially blowing up, but in an age in which gaming is taking on additional elements of interactivity and pushing technical limits, it does have surprising applications. So, if a defective gaming product actually hurts me or damages my property, what would happen?
Without further ado, let’s dive into the exciting world of English product liability law. Yes, law. No, wait, come back!
Photosensitivity and Epilepsy
Good, you’re back. Phew. Now, please join me in a belt of Scotch while I start my first example.
Gamers in their mid-20s like myself will surely remember the extensive “don’t play for too long and take breaks” warning before every PS1 game. This is because of the risk of eye strain and headaches, which may be even more of an issue in a brain which is still forming. There is no evidence that gaming can provoke spontaneous seizures for no reason (according to an article in Next Generation magazine from October 1995, which followed up on medical journals), but it could do so in someone with epilepsy - including undiagnosed epilepsy.
So, say a child ignores these warnings (and crucially, so does their parent), plays for 6 hours straight and then has their first ever epileptic seizure, hitting their head on a coffee table and requiring stitches for a deep wound. This heals to form a permanent scar. Can we say that the game is defective and claim for personal injury?
You will probably be mouthing "no" at your laptop, and that’s about right. Warp yourself à la Crash Bandicoot back to 1995, the release year in the EU of the PS1. The law which governs this issue in England is the Consumer Protection Act 1987, which was passed due to EU legislation on the same topic (see, EU law isn’t all about bendy bananas and Eurocrat gravy trains – it’s also about making sure your £5 toaster doesn’t set fire to your eyebrows). According to this, a product is defective if it isn’t as safe as people could legitimately expect it to be, given any marketing strategies or warnings on the product.
In 1995, not everyone may have believed that playing games for long periods of time could be unhealthy, beyond expanding your waistline due to lack of exercise and multi-packs of Doritos. Even now, nobody would think that binge-watching Netflix could cause neurological symptoms (though it's common knowledge that IMAX cinema showings can make some people feel dizzy, for example). However, there is a warning front right and centre on inside booklets and when the game boots up. It would be hard to miss this advice.
Those were the days when people read actual manuals! Fancy that! (Booklet shown is from Silent Hill)
The presence of adequate warning can render the product “not defective”, so no liability would be present if adequate warning was given for reasonable risk. If the warning had been missing, the child may have been able to claim damages. In 1995, there would have been the possibility of testing and minimising the risk of neurological symptoms, if they wanted to go down the non-warning route. Furthermore, the fact that you are aware of a defect but cannot test for it in individual cases is generally not an excuse. An example of this is A v National Blood Authority (2001) 60 B.M.L.R 1, where a bunch of unfortunate people contracted Hepatitis C from contaminated blood transfusions. The fact that there was no individualised test for Hepatitis C contamination at the time, but the clinics knew of the contamination risk, didn’t absolve them of liability.
OK, slight variation on the theme: what about games with flashing lights and players with pre-diagnosed photosensitive epilepsy? I have played later generation games recently where I felt there was insufficient warning in advance of flashing effects and was a bit taken aback. Are those with epilepsy under a duty to just avoid certain games altogether, or is a game defective if it lacks clear warnings? There have been personal accounts and medical journals stating that a conservative amount of gaming, teamed with dimmed screens and wearing sunglasses, can help some people with epilepsy, but it is still possible that more could be done here.
I think the law really has to side with the player with epilepsy in this case and require warnings, otherwise the game can be defective. Strobing and other effects can be irritating, distressing and trigger headaches etc. even for those without epilepsy, and lighting effects are almost always not a central or obvious/predictable aspect of a game. However, all of this assessment depends on what the player would reasonably expect.
England had its very own “hot coffee” case, but it wasn't about San Andreas character models. It was a number of people who were complaining that they were burnt by spilt McDonald’s coffee, and that McDonald's should have made their coffee at a lower temperature or designed the take-out cups differently (Sam B and Others v McDonald's Restaurants Limited  EWHC 490). They lost their case. The judges decided in favour of McDonald's because customers actually expect their coffee to be at a temperature where it would burn someone if it was knocked onto them – if it were served any colder, they would complain. If it is clearly a game which will incorporate flashing lights and is visuals heavy, perhaps due to fan feedback at beta stages, the onus is on the person with sensitivity to acknowledge that and not pick up the game. However, given that the expectation is not usually there, the game could be defective if it lacks a specific warning.
In another useful case, a mother couldn’t sue a well-known supermarket chain because her 1 year old ate dishwashing powder from a “child-resistant” container it had sold to her (Tesco Stores Ltd & Another v Connor Frederick Pollard  EWCA Civ 393). This is because the container was “child-resistant”, not “child-proof”, so the promised safety standard was that it would be harder for the child to open but not that a child opening it would be impossible; the burden was still on the mother to keep the bottle out of reach of the child. The burden is on the injured person to show that there is a defect, and it will be very difficult to show that this is the case where game companies haven't promised to provide a gaming experience directly to those with epilepsy - or so goes one argument.
However, the Pollard case concerns a very young child (13 months old), where it is presumed that the parents have an additional duty to keep dangerous items away from the child. With an adult person who suffers from epilepsy, it appears unfair that they would have to avoid a large amount of games (since there would be no chance of redress if they triggered a dangerous fit due to lack of warnings and suffered serious, disabling injury as a consequence). This would exclude them from playing a large chunk of games.
As a general point, I think the games industry has a moral duty to do more to include people with special requirements, whether it is a check-box in the options settings to remove flashing effects for those with sensitivity or adaptable controllers. Some external charities are doing great work in this field, such as SpecialEffect.
Not OK Computer
Let’s return to Chocolate Fireguards Inc. Let’s say that they do release a patch for Brutal Face-Smasher XXX 56: Revelations and that they don't run off to a tropical island with large wads of cash. However, the patch available for download on their official website has a virus attached to it. Not only that, but it is such a large and poorly programmed patch that it is triggering people’s machines to overheat, even those that meet the required specifications for the game. Little Timmy’s gaming PC goes off to the big Staples in the sky 2 months after repeatedly trying to install the patch, and it is proven by his local repair shop that repeated overheating obliterated the hard drive. It would cost Little Timmy £400 to replace the completely destroyed components and repair others, not to mention he has lost his geography coursework, which he completely forgot to back up. Silly Timmy!
So, can Timmy claim for the damaged PC parts and his lost coursework? To the first, yes. To the second…I would say no.
Regarding the borked PC, Timmy’s computer was both riddled with a computer virus and suffered physical damage due to the botched update, despite being informed that his machine could handle the update. Both the virus and the overheating would constitute property damage, because they both impede Timmy in being able to use his machine safely, or even at all. Timmy had no warning that that would happen to his machine, and it was as a direct result of a fundamental problem with the patch. We do expect large patches nowadays, including on Day 1, but we do not reasonably expect them to cause our machines to overheat before we've even had a chance to fiddle with the in-game settings, if we're using the correct hardware.
So, Chocolate Fireguards Inc. would be liable to replace the broken components, or even replace the entire unit – whatever is required to get Timmy into the position as if he had never downloaded the patch in the first place. If Timmy’s computer was already on its last legs, or say it was a gaming laptop that overheated partly because Timmy regularly used it in bed without any support underneath (*cough cough* not that that’s what I’m doing now *cough*), the principle of contributory negligence would step in, meaning that Timmy would have his damages reduced in accordance with his own fault.
Unfortunately, he isn’t cashing in on losing his homework. Generally, we expect people to back up their data nowadays, particularly as it can now be automated, so it would be largely Timmy’s fault if data was lost. Besides this, it is difficult to award damages where there is no sensible way to return the affected person to the position as if the damage never occurred in the first place. “Putting Timmy in the position as if his coursework was still in his Documents folder” is almost impossible to quantify sensibly in terms of monetary value. Unfortunately, it may be better in the long run for Timmy to just use the “my dog ate my homework” excuse and give up on his dreams to become a geography teacher.
A last example I’m going to talk about concerns the expansion of VR headsets. There has been talk of some people experiencing headaches or other side effects, but I think in 2016 (particularly after the 3DS headaches niggle) there is now the reasonable expectation that some people may not take well to having interactive screens shoved completely up in their face. As a result, like with the steaming hot McDonald’s coffee, or your warm apple pie, the onus is on you to blow on it first - err, I mean, adjust to your own needs and take it slow at first. Furthermore, it’s worth emphasising here that just because something is dangerous does not mean it is automatically defective: otherwise, all knives would be defective by design.
One area of potential defectiveness is where a game is designed unsafely. By this, I mean the game design encourages players to move around, meaning they’re likely to be unaware of their surroundings and collide with something. Again, a reasonable level of movement when playing VR is to be expected; as with the Wiimote, the onus is on the player to ensure there is some space to allow natural movement. But if the game tempts people or encourages people to move around excessively, so that even relatively open spaces can lead to people walking into doors or the fireplace…is that defective?
You might think that any person should pick up such a game, snort and put it straight back on the shelves. In other words, it is the player’s stupid fault if they carry on playing such a blatantly dangerous game, or even if they play it at all. However, it really depends as to whether this is the case.
If a novice player is lured into a false sense of security so that they don’t realise how far they are traversing, or it is in the context of multiplayer where it is easier for people to get distracted by what they’re doing/there is less space, game designers probably need to be careful. There is an extra level of care required with a device that consensually removes the player's ability to see the outside world. A perhaps more sympathetic example is from back in the day, when people were routinely disembowelling their parents' flat screen TVs with Wiimotes. If this had genuinely been because the straps were flimsy and broke, rather than the straps being worn incorrectly/not at all, Nintendo may have had something to answer for, concerning any games they made which caused the Wiimote to be swung towards the TV and concerning the hardware itself.
So, what is my message behind telling you all this? Well, with my piece on incomplete games, I was trying to vent some frustration at the special treatment of games compared to consumer appliances, or even to other media, such as films. If you bought a TV and it was not as advertised, it would seem out of place to be refused a refund or damages because you “shouldn’t have been drawn in by the hype”. Of course, I’m talking here about games that blatantly aren’t as advertised, rather than games which are simply a critical let-down (the line here is indeed a fine one). There is evidence that the Advertising Standards Agency could end up siding with me on this point.
With the specific topic of this article, I’m telling you that games developers won’t get their pants sued off at every turn, but development cannot run on an exponential scale forever, nor should we want it to. There have to be some checks and balances regarding what is safe and fair on the consumer, even when aspiring to technical marvels. It is easy to get carried away and think gaming is all about imagination, but it is also about practicality.
Don’t be expecting anything exceptionally immersive from VR games in its early years, as companies will be petrified of you losing track of what is going on and decking it in the process - one man's funny YouTube video is another man's lawsuit. Furthermore, your game may be delayed a little just to make sure it works for players of all abilities and needs. When gaming crosses into fresh territory, that is an awesome thing. But gaming development should be a cautious awesomeness, not one landing you with a trip to A & E.