Video games are big business: from the latest blockbuster, an indie hit, a mobile time-passer for your transit ride, or a packed esports arena with massive online viewership, there's good money in creating engaging and immersive entertainment products. However, game economics have changed, particularly in the internet era, and developers and publishers have had to pursue revenue by adopting more creative and sustainable monetization models, including up-front, service-based, microtransaction-based, or even ad-based revenue streams. Against this backdrop, and against a negative media and political bias towards video games,1 we have seen an increasing appetite worldwide for governments to step in and regulate the games industry.
So it comes as no surprise that, even in the United States, the federal government has made a move to protect the populace from perceived exploitation, even if the new legislation, a bill from Republican Senator Josh Hawley and endorsed by two Democratic senators, is shockingly broad in its application.
Background — The Current State of Games and the Rise of In-Game Monetization
In 2018, digital games and interactive media revenues grew 13% to reach USD$119.6 billion. To put that in perspective, that is more than ten times the global recorded music industry (USD$19 billion [+9.7%]) and rapidly approaches the vaunted global film industry (USD$135.6 billion [+2.5%]).
With competition for consumers' entertainment time at a fever pitch across many converging industries,2 game developers are under immense pressure to deliver immersive, compelling, perfectly-executed games that take full advantage of the latest technology. In the past twenty years, average game development costs have increased approximately ten times to USD$90 million while retail prices for AAA console and PC games have remained relatively stagnant (drastically decreasing when taking into account inflation) at approximately USD$60. Further, these development costs do not take into account marketing costs which are regularly 80-100% of the development budget for console and PC games and 300%-1,000% of the development budget for mobile games.
These competitive pressures combined with rising costs and the remarkable persistence in the general price for AAA titles has driven developers and publishers to seek alternative business models and creative revenue streams to remain profitable. In fact, one such alternative model is known as "free-to-play" or "freemium", defers the traditional up-front cost of acquiring a game for revenue is generated via a collection of other methods such as in-game advertisements and microtransactions that can include controversial "pay-to-win" mechanics and "loot boxes".3 Many games that have an up-front or subscription fee also deploy these microtransactions.
For the uninitiated, microtransactions are in-game transactions using real currency (or by either watching an in-game advertisement or spending virtual currency that was acquired through effort or real currency) whereby users can purchase virtual goods ranging from purely cosmetic items, to boosts or gameplay advantages, to additional playable content. When those virtual goods afford the user with some advantage over those users who do not purchase the item, this is considered a "pay-to-win" mechanic. "Loot boxes", on the other hand, are a type of in-game microtransaction whereby a user effectively purchases (again, with virtual currency, real world money or by watching advertisements) a chance to win a virtual good, or some other advantage (though the term is sometimes more broadly defined to include any random or "black box" set of virtual goods or advantages that, through microtransaction or in game effort, can be acquired by players).
Developers have employed psychologists, economists, and human behaviour experts to maximize player engagement with their products via high pressure, data driven, and arguably addictive methodologies. These methodologies spread quickly throughout the industry as developers follow the examples set by the highest grossing titles. Free-to-play titles accounted for over 80% of all digital games revenue in 2018 and it is no coincidence that the highest grossing game of 2018, Fortnite (USD$2.4B), is one such title. In fact, of the 10 titles that grossed over USD$1B in 2018, 9 were free-to-play. This, of course, encourages other companies to follow suit with their own games.
It is no surprise that, now that in-game monetization has reached this level of success, the business practices of the game distributors and publishers have come under the close scrutiny of regulators and consumer organizations around the world.
The Proposed Legislation — Much More than Just Protecting Children from "Loot Boxes"
Hawley's bill purports to "regulate certain pay-to-win microtransactions and sales of loot boxes in interactive digital entertainment products", and would make it illegal for a game publisher or distributor to make available a "minor-oriented video game" containing pay-to-win microtransactions or loot boxes. It also prohibits making available an "interactive digital entertainment product" even if it is not minor-oriented, if the game contains microtransactions that are pay-to-win or loot boxes, in situations where the publisher or distributor has "constructive knowledge that any of its users are under the age of 18".
Defining "interactive digital entertainment product" and "minor-oriented video game" very broadly, the bill looks substantively at the product in question, for example, determining a game to be "minor-oriented" if its target audience is individuals under the age of 18, as demonstrated by its subject matter, visual content, music/audio, use of animated characters appealing to minors, age of characters or models in the game, presence of celebrities who are under 18 or who appeal to those under 18, the language and content of advertising used, and other empirical evidence about the composition of the product's audience, either actual or intended.
The "minor-oriented video game" prohibitions of the bill may not, themselves, represent a true industry barrier. Despite popular impression, microtransaction games generally do not target their game at children: children are not as likely as adults to stick with a game (and tend to head to the most recent or popular game), and they do not spend as much money adults, whose greater disposable income and brand loyalty makes them a much more attractive audience.
Instead, it is the bill's stretch beyond games targeted towards minors and instead to games that could be played by minors that should cause concern. It is well known that popular games are played by those under the age of 18, as a NewZoo study found that two popular games (Epic's Fortnite and Bluehole's PUBG, both of which heavily feature microtransactions) had majority player populations between the ages of 10 and 30, with between 10 and 20 percent of players identified as "students" (And we note that both games have terms and conditions that anticipate those under 18 must required to obtain parental permission to play).4 Specifically, there are features of this proposed legislation that affect games more broadly than the "children's loot box bill" unofficial moniker would suggest:
- the bill prohibits games with loot box or pay-to-win microtransactions that are constructively known to have players under 18 (presumably, even if the publisher or distributor takes efforts to exclude them), and while this constructive knowledge is not legislatively defined, merchandising, streaming viewership audiences, third party studies, and forum activity may count towards it5;
- the bill's definition of transactions includes not just transactions where the player pays the money, but anyone gives value to the distributor or publisher (or an affiliate or anyone for their benefit) if the transaction could also be conducted by the payment of money; and
- the definition of a "pay-to-win" transaction is incredibly broad, focusing on progression through the game by easing progress, assisting achievements, or obtaining or elongating access to awards that might otherwise taken be away — in each case even if these can be done without purchase.
As such, the bill is very broad in its reach, perhaps to a point where a court would not find it enforceable. We note, for example, that not even adult-oriented businesses are prohibited from offering services where it is constructively known that minors participate (for example, a bar or adult entertainment website must exclude minors if known but must certainly know that minors do participate from time to time). There is a long line of cases in the United States that establish, in the trading card space and under federal racketeering legislation that purchasers who buy a pack of cards without knowing the contents are not aggrieved if they chase rewards, because the purchaser is receiving exactly what they bargained for: a random assignment of cards including a chance for higher-value cards. Finally, while regulating games based on their content is questionable enough under the very strong U.S. First Amendment, we find the definition of "minor-oriented video games" to be problematic on its own, not clearly differentiating games that appeal to minors as opposed to people in general — many games strongly preferred by adults (such as King's Candy Crush Saga) feature many of the listed elements.
1 The World Health Organization, for example, voted on May 26, 2019, to add "gaming disorder" to its international classification of diseases. This addition is very controversial, as the science is definitely out on whether compulsive gaming is its own disorder or simply a symptom of other disorders such as depression, ADHD or anxiety.
2 For example, consider this quote from Netflix's 2018 earnings report: "We compete with (and lose to) [Epic's game] Fortnite more than HBO", also noting that "consumer screen time" is its most valuable metric.
3 Famously, one of the first microtransactions to attract negative consumer attention was a US$2.50 purchase for an offline game, whereby players of Bethesda's The Elder Scrolls IV: Oblivion could acquire armour for their virtual steed, a purely cosmetic item.
4 These statistics ignore the massive and increasing viewership audience for games such as Fortnite, which audience of course includes children. Famously, video game streamers such as Tyler Blevins aka Ninja make 8-figure incomes from streaming gameplay to viewers.
5 Generally, constructive knowledge is defined under case law, at least in Canada, as "knowledge of circumstances which would indicate the facts to an honest person, or knowledge of facts which would put an honest person on inquiry".
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The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2019