This week's LGJ explores the idea of professional plaintiffs in gaming and class action lawsuits.
Read on!
Showing posts with label Class Action. Show all posts
Showing posts with label Class Action. Show all posts
Wednesday, November 25, 2009
Friday, June 26, 2009
Class Action Against SquareEnix Targets More Than Fees
It's been on the major news sites that a class action has been levied against SquareEnix for fees associated with Final Fantasy XI, the company's MMORPG. However, there's more to it if you look at the filing posted by GamePolitics.
News sources have been quick to point out that the monthly fee is clearly stated on the Square website, as most MMORPGs with a monthly subscription plan do. Looking at the pleading, though, the main monthly fee isn't the crux of the complaint. I think the stronger complaint lays with the penalties and interest for late payments, and 'charges while the online game account is suspended,' if that means the monthly fee is continuing to toll. This case may not be about the base monthly fee at all, but rather what happens if you don't pay.
More troubling still are facts 11 i and vi, which essentially challenge the software licensing model as a whole. Fact 11i reads 'Licensing of the online games software disguised as a sale;' while count 11vi reads 'Termination of the right to use the online games for late payment of fees.' To me, this reads that they're challenging traditional software retail and MMO sales as a deceptive trade practice because buying the game doesn't actually purchase a copy of the game nor the right to play. The latter is certainly the weaker point, as I'm fairly certain the box references the required monthly subscription. Normally I wouldn't put stock in an attempt to redefine the entire software industry, especially in California where so much software is developed, but the California courts have been known to issue unusual decisions and have long favored consumer protection.
Count vii, which contests the terms of use, seems like a dead end unless the entire software licensing model is shot down by the court. The Terms of Use are an extension of the license, and if the license is upheld, then the terms of use will be. Other cases have failed to strike down either (other than with regard to things like arbitration provisions), so I doubt this will be successful.
It will certainly be interesting to see the claims in the suit fleshed out further. Based on the information available, this looks like a case of 'I bought the game, didn't pay my monthly fees, and are mad that you won't let me play and are charging me interest on the fees I owe you.'
News sources have been quick to point out that the monthly fee is clearly stated on the Square website, as most MMORPGs with a monthly subscription plan do. Looking at the pleading, though, the main monthly fee isn't the crux of the complaint. I think the stronger complaint lays with the penalties and interest for late payments, and 'charges while the online game account is suspended,' if that means the monthly fee is continuing to toll. This case may not be about the base monthly fee at all, but rather what happens if you don't pay.
More troubling still are facts 11 i and vi, which essentially challenge the software licensing model as a whole. Fact 11i reads 'Licensing of the online games software disguised as a sale;' while count 11vi reads 'Termination of the right to use the online games for late payment of fees.' To me, this reads that they're challenging traditional software retail and MMO sales as a deceptive trade practice because buying the game doesn't actually purchase a copy of the game nor the right to play. The latter is certainly the weaker point, as I'm fairly certain the box references the required monthly subscription. Normally I wouldn't put stock in an attempt to redefine the entire software industry, especially in California where so much software is developed, but the California courts have been known to issue unusual decisions and have long favored consumer protection.
Count vii, which contests the terms of use, seems like a dead end unless the entire software licensing model is shot down by the court. The Terms of Use are an extension of the license, and if the license is upheld, then the terms of use will be. Other cases have failed to strike down either (other than with regard to things like arbitration provisions), so I doubt this will be successful.
It will certainly be interesting to see the claims in the suit fleshed out further. Based on the information available, this looks like a case of 'I bought the game, didn't pay my monthly fees, and are mad that you won't let me play and are charging me interest on the fees I owe you.'
Friday, December 5, 2008
LGJ: Class Dismissed
This week's LGJ explains some of the basics of the 'class action,' and why it's become a popular vehicle in game related suits.
Read on!
Read on!
Monday, January 7, 2008
The Xbox Live Class Action
As noted on GameSpot, a number of Texas residents have sued over the Xbox Live holiday outage, for which Microsoft previously apologized and will be offering a free game. The suit apparently asks some $5 million in damages, based on a breach of contract for the service. I have a few thoughts on the matter, which are entirely thoughts and not legal advice (in case anyone is inclined to take them in an improper context).
1. A subscription to Xbox Live, annually, is $50. For 3 months, the going rate is $20, and for a month it's $8. So, the actual value of a month of Xbox Live is somewhere between $8 and $4.17 or so. The service has been down, or at least been acting in a less than satisfactory manner for approximately one month or less.
2. Microsoft has noted, and will be offering, a free live arcade game of some sort to all paying Live members. Assuming the game isn't one everyone has already purchased, or there are multiple options or the like, then the approximate value of the replacement game should be about the same as the loss experienced by the Live users.
3. More importantly, as this is supposedly a breach of contract action, upon review of the Xbox Live Terms of Use, the basic contract that governs Xbox Live, there's not an action to be had on the terms of the agreement if Xbox Live goes down. To quote the agreement:
This is by no means to say the suit is doomed or without merit. There are a number of possible interpretations under which the plaintiffs could succeed, but in general, this seems similar to so many of the other suits levied against the house that Gates built: mostly for profit or for principle.
[Via Joystiq]
1. A subscription to Xbox Live, annually, is $50. For 3 months, the going rate is $20, and for a month it's $8. So, the actual value of a month of Xbox Live is somewhere between $8 and $4.17 or so. The service has been down, or at least been acting in a less than satisfactory manner for approximately one month or less.
2. Microsoft has noted, and will be offering, a free live arcade game of some sort to all paying Live members. Assuming the game isn't one everyone has already purchased, or there are multiple options or the like, then the approximate value of the replacement game should be about the same as the loss experienced by the Live users.
3. More importantly, as this is supposedly a breach of contract action, upon review of the Xbox Live Terms of Use, the basic contract that governs Xbox Live, there's not an action to be had on the terms of the agreement if Xbox Live goes down. To quote the agreement:
16. WE MAKE NO WARRANTYIn short, the service is provided "as-is," and any damages are limited to the value of one month of service. Whether a court will allow payment in the form of, say, additional time on Xbox Live or a free game is yet to be seen, but I would imagine that, given the low per user amount involved, Microsoft's remedy would likely be adequate, especially since the outage was not 100% over the time claimed and not too terribly extensive in the grand scheme of things.
We provide the Service "as-is," "with all faults" and "as available." The Microsoft Parties give no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude the implied warranties of merchantability, fitness for a particular purpose, workmanlike effort and non-infringement.
17. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
You can recover from the Microsoft Parties only direct damages up to an amount equal to your Service fee for one month. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.
This limitation applies to:
-any matter related to the Service,
-any matter related to content (including code) on third party Internet sites, third party programs or third party conduct,
-any matter related to viruses or other disabling features that affect your access to or use of the Service,
-any matter related to incompatibility between the Service and other services, software and hardware,
-any matter related to delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the Service in an accurate or timely manner, and
-claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
It also applies even if:
-this remedy does not fully compensate you for any losses, or fails of its essential purpose; or
-Microsoft knew or should have known about the possibility of damages.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. They also may not apply to you because your province or country may not allow the exclusion or limitation of incidental, consequential or other damages.
This is by no means to say the suit is doomed or without merit. There are a number of possible interpretations under which the plaintiffs could succeed, but in general, this seems similar to so many of the other suits levied against the house that Gates built: mostly for profit or for principle.
[Via Joystiq]
Wednesday, November 14, 2007
Kids, Cards, and Class Actions: The Xbox Live Lawsuit
Information Week is reporting about a class action lawsuit that resulted from a child using his parent's debit card to register for Xbox Live without permission. The damages are from an overdraft fee a year later when the automatic renewal occurred. While I'm sure many class action attorneys love the idea of being able to take a shot at Microsoft, this case makes me want to roll my eyes because it highlights three major points of personal responsibility, one of which is a legal issue.
First, the two non-legal points: financial responsibility and parental responsibility. Financial responsibility in the US has been a major problem as of late, especially given the debt trends in the country. However, I would assume most people monitor their cash flow to some extent. Accordingly, I find it hard to believe that the parent in this case didn't notice the original Xbox Live charge, and if he did, then it was irresponsible not to address the issue at that time and rather let it renew a year later. Second, the parent should be monitoring the child's activity, and it is ultimately the parent's fault the card was taken and used by the child. The parent should realize this at some point in the transaction before an entire year has elapsed.
This leaves the third issue, the concept of vicarious liability for the actions of your child, which I would consider a spin-off of parental responsibility. While this issue varies from state to state, many states do hold parents responsible for the actions of their children, be that vandalism or online piracy or, in this case, use of a parent's credit card. Given that Microsoft already refunded the charge, the vicarious liability would be limited to the bank overdraft fee, which still stems from the original action of the child. I'm not sure of the vicarious liability laws in the state where this action is being brought, however.
Ultimately, holding a parent liable for $35 in damages caused by the unsupervised action of their child seems like a pretty minimal penalty, and I would hope that the parent would take it as a very inexpensive lesson that they need to keep a closer eye on their child and their wallet. Instead, it has been turned into a class action suit against Microsoft. I can't predict the outcome of the case, but if it were entirely up to me, I would dismiss the suit without question.
[Via Joystiq]
First, the two non-legal points: financial responsibility and parental responsibility. Financial responsibility in the US has been a major problem as of late, especially given the debt trends in the country. However, I would assume most people monitor their cash flow to some extent. Accordingly, I find it hard to believe that the parent in this case didn't notice the original Xbox Live charge, and if he did, then it was irresponsible not to address the issue at that time and rather let it renew a year later. Second, the parent should be monitoring the child's activity, and it is ultimately the parent's fault the card was taken and used by the child. The parent should realize this at some point in the transaction before an entire year has elapsed.
This leaves the third issue, the concept of vicarious liability for the actions of your child, which I would consider a spin-off of parental responsibility. While this issue varies from state to state, many states do hold parents responsible for the actions of their children, be that vandalism or online piracy or, in this case, use of a parent's credit card. Given that Microsoft already refunded the charge, the vicarious liability would be limited to the bank overdraft fee, which still stems from the original action of the child. I'm not sure of the vicarious liability laws in the state where this action is being brought, however.
Ultimately, holding a parent liable for $35 in damages caused by the unsupervised action of their child seems like a pretty minimal penalty, and I would hope that the parent would take it as a very inexpensive lesson that they need to keep a closer eye on their child and their wallet. Instead, it has been turned into a class action suit against Microsoft. I can't predict the outcome of the case, but if it were entirely up to me, I would dismiss the suit without question.
[Via Joystiq]
Tuesday, July 10, 2007
Xbox 360 Class Action: The Disk Scratching Suit
Joystiq is reporting that the first class action lawsuit against Microsoft over the Xbox 360 has been filed. The suit, which I have verified was filed, is in Florida and is asking $5 million on a combined warranty and strict liability theory.
There are two thoughts this case brought to mind. First, it seems as though there is a better chance of recover here than on the ubiquitous "Three Red Lights" issue. Microsoft has at least made some effort to correct the red lights through the warranty extension (although those who took some action which voided the now re-instated warranty during the gap period may have better standing in that regard). The disk scratching, however, has largely gone unaddressed.
Second, while I understand the warranty theories presented in the case, the strict liability theory seems to be a bit of a stretch. While I am no expert on Florida law, strict liability usually requires a physical harm (physical injury) or unreasonably dangerous condition to be created by the product. In fact, paragraph 66 of the pleading makes this claim. I see no such issue with a scratched disk, unless users are suffering heart attacks when Gears of War won't read or a repetitive stress injury from ejecting and re-inserting the disk, hoping it will work.
Scans of the lawsuit are available on Joystiq for free, or through the Florida ECF/PACER system (not free). This may be the first Xbox 360 suit, but it may also not be the last.
There are two thoughts this case brought to mind. First, it seems as though there is a better chance of recover here than on the ubiquitous "Three Red Lights" issue. Microsoft has at least made some effort to correct the red lights through the warranty extension (although those who took some action which voided the now re-instated warranty during the gap period may have better standing in that regard). The disk scratching, however, has largely gone unaddressed.
Second, while I understand the warranty theories presented in the case, the strict liability theory seems to be a bit of a stretch. While I am no expert on Florida law, strict liability usually requires a physical harm (physical injury) or unreasonably dangerous condition to be created by the product. In fact, paragraph 66 of the pleading makes this claim. I see no such issue with a scratched disk, unless users are suffering heart attacks when Gears of War won't read or a repetitive stress injury from ejecting and re-inserting the disk, hoping it will work.
Scans of the lawsuit are available on Joystiq for free, or through the Florida ECF/PACER system (not free). This may be the first Xbox 360 suit, but it may also not be the last.
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