How to Sue Your Videogame Manufacturer: The Gold Rush is On!
Bring the electronic game manufacturers to their knees: Sue them!
Posted Oct 26, 2010
According to a Sept. 3, 2010 article in The Wall Street Journal by Eric Felten, "Videogame Tort: You Made Me Play You," a federal judge in Hawaii ruled in August 2010 that a man claiming to be addicted to a videogame can sue the game's maker for gross negligence.
The plaintiff, Craig Smallwood, alleges he suffered serious emotional distress and depression as the result of his addiction to the video game "Lineage II." This could be the beginning of a new tortious gold rush. Trial lawyers are undoubtedly lining up right now to expand litigation in this area. But how should they go about it and what obstacles will they face?
The first step, it seems to me, is to establish the case for technology game addiction and technology addiction in general. While the American Psychiatric Association has not yet included technology addiction in its diagnostic and statistical manual, several studies seem to support the concept of addictive responses to game technology. South Korean researchers have determined that the addiction rate of teens in their country is a whopping 15 percent. The South Korean government has established addiction camps for children and mandatory instructional programs for all children in the second grade.
Another approach is to compare similarities in behavior between electronic game-users and drug and alcohol addicts. As with alcohol and drug addiction, the usage of electronic games is extreme in some children and adults. And they share other behaviors found in recognized addictions: Heavy game users tend to lie about and cover up usage patterns.
Also, the game itself becomes the love object and the major focus of life, replacing meaningful relationships. Heavy users tend to show nervousness and anxiety in anticipation of electronic game usage and show signs of withdrawal when usage is prohibited. After extended game play they are drained, apathetic and fatigued. And, importantly, they need ever-increasing usage in order to maintain their current level of satisfaction.
The fact that the APA diagnostic manual does not yet include electronic addiction does not mean it won't be included in the future, once more research is available. It took years before researchers established that nicotine was addictive and various psychiatric treatment regimens common today weren't accepted initially. An associate of mine used lithium to help patients with bipolar disorder (then referred to as manic-depressive disorder) and it wasn't until 20 years later that the use of lithium became a widely accepted treatment regimen.
Establishing Mr. Smallwood's depressive condition should not be difficult. Depression is a known and accepted entity in the world of mental health. Extensive research has led to a better understanding of this condition. If Smallwood engaged in enormous amounts of electronic game play and clinical depression gradually began to affect his behavior, it may be a "no-brainer" for a jury to connect the two and make the manufacturer pay up. Of course, the litigant attorney would need to rule out other causes of depression, including such obvious factors as a death in the family or the breakup of an important personal relationship. And, of course, depression can result from biochemical changes and genetic predisposition.
However, genetic predisposition may not excuse the provider -- in this case, the game maker -- from liability. For example, a bar or restaurant might be held liable for an automobile accident if it served too much alcohol to someone from a race or nationality that is more prone to alcoholic abuse, such as Native American Indians and those of Irish descent. The establishment may even be held liable for serving alcohol to an alcoholic if the customer has an automobile accident. Naturally, the restaurant does not know how much alcohol a person consumes prior to entering the restaurant, or whether the person is addicted. But if the person's behavior clearly indicates alcohol abuse, the establishment must stop serving alcohol to that individual -- and the staff would be wise to provide their customer with a ride home!
Game addiction might be used as a defense in cases of assault, road rage and even homicidal behavior. Studies have showed that young people exposed to electronic games emphasizing combat and killing tend to become more aggressive and these aggressive tendencies tend to subside with less exposure to electronic games. Other professionals believe electronic games lead to impulsivity and low frustration tolerance. These could be contributing factors to antisocial behavior. At least 97 percent of 12-to-17-year-old American adolescents play video games and one third play mature (aggressive and sexual) games designed for "adults."
Physical conditions resulting from too much game activity are already well-documented: Obesity, asthma, clogged arteries and numerous other physical problems are tied to a sedentary lifestyle.
What about damages for hindering one's achievement level and the ability to obtain work? One Japanese study showed that important areas of the frontal lobe are not stimulated during single-shooter game play. Frontal lobes are the orchestra leader of the brain and pull together disparate information into a cohesive whole. Because the young brain is quite plastic and is constantly being rewired, it is quite possible that young people addicted to game play will suffer from stunted intellectual capacity. Studies are already showing lower achievement levels in students who are heavy electronic game-players. This seems more prevalent in boys than girls and, of course, boys are already lagging behind girls in reading and school success, on a developmental basis.
One research approach would identify individuals with similar intellectual levels, prior to game use, and compare the academically and vocationally successful ones with the unsuccessful ones relative to game play. Twin studies could be helpful. Adoptive twins raised in different environments, one allowing much usage of electronic games and the other restricting usage, could be compared.
A defense attorney could ask: What about television? Surely people watch enormous amounts of television and they aren't addicted -- or even depressed, for that matter. I'm not so sure that's a correct assumption, but the significant point here is that the active electronic game experience is quite different from the passive TV experience. For example, studies show that aggressive content with gamers brings out more aggressive thinking than aggressive content with television, especially in those who already have aggressive tendencies.
Importantly, movie and TV viewers are spectators not engaged and not interacting directly with the screen. It's the interaction effect, along with game design and graphics that create an insatiable appetite for game action. Game users expect a hyped-up situation with incredible visual feedback and gratifying opportunities for combat and mayhem. Electronic games feature captivating graphics and audio systems that are unique and scintillating (more money is spent on electronic games than on the production of Hollywood movies).
Game play leads to stimulus-driven attention not purposeful attention. The stimulus, combined with the interaction effect, is so powerful the user becomes "stimulus bound" and unable to resist. The excitement and interaction draw the game player in much as drugs do. Felten's title, You Made Me Play You, shows both humor and skepticism, but if the plaintiff's brain has been altered through game play, which might be established through an MRI study -- and especially if his brain was already tampered with as a child through long and early exposure to certain electronic games -- he may not, in fact, be able to resist! Maybe that's why we refer to electronic games as electronic cocaine
What's a defense attorney to do? She could find some achievers or leaders in the community who admit to over-involvement in electronic games -- but that won't help. Some people can handle larger quantities of alcohol than others but they are still arrested if their blood-alcohol level exceeds state standards. Heavy tobacco use does not cause cancer in all smokers.
Defense attorneys could bring up the end-user license agreement or EULA. This is the contract consumers supposedly read prior to using an electronic product or going onto a website. But how many of us actually read the fine print? According to Felten, the British retailer Game Station included the following message in its boilerplate: "By placing an order via this website, you agree to grant us a nontransferable option to claim, for now and forever more, your immortal soul." Alas, in just one day, some 7,500 customers agreed to hand over their souls.
If Craig Smallwood's attorney can convince a jury that folks are willing to give up their very souls for a must-have chance to play Lineage II, she might be on her way to making legal history and collecting a tidy sum of money. The gold rush is on!