Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

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It's that time of year again. Yes, it's the Las Vegas convention season, and between CES and D.I.C.E., many of the gaming faithful will have been in casino central before the end of February, including my own trip to the Gaming Law Minefield conference. This means bloggers are more drunk and broke than usual. It also means it's time to talk about gambling and how it may soon have a greater impact on video gaming. In fact, video game gambling has been a hot topic as of late, between MMO gambling and Kwari, among other stories. As an idea, video game gambling is relatively new.

Gambling, and gambling laws, on the other hand, have been around for quite some time. Games themselves fall into a range between two extremes: Games of Pure Chance and Games of Pure Skill. Chance games are ones where the player has literally no impact on the outcome of the game. The classic example is a lottery, where no matter what you do, you can't change the odds of your numbers being drawn on any given entry. Skill games, on the other hand, have no elements of chance whatsoever. The classic example of a pure skill game is chess, given that there are no random elements in the game; the outcome is determined solely by the skill of the two players. Most games, from blackjack to backgammon to baccarat to Bubble Bobble, falls somewhere between chance and skill.

Lawmakers have traditionally been more reluctant to allow players to gamble on games of chance than games of skill, with wagers by spectators on the outcome being a separate issue entirely. Based on this view, skill games are legal in far more places worldwide than chance games. Of course, if you are a purveyor of gambling, you want a product that can be offered in the most places at once, and thus, you are likely on the lookout for a skill game that will bring in the maximum number of players. Accordingly, the first person shooter market became a hot target for gambling providers.

The difficulty with many FPS games is a similar problem that faces poker: There's an element of chance. Depending on the particular regulation you're dealing with, that may be enough to preclude participation in a market, or worse, run afoul of the Unlawful Internet Gambling Enforcement Act (at least, until a revision like the Skill Game Protection Act is passed). Discussing the chance elements in poker and FPS games have riled up a few vocal opponents in the past, so I will try to keep this as factual as possible. In poker, even though the odds can be determined by the number of cards in the deck, there is still a chance element in the drawing of cards. While there is a 1 in 52 chance of drawing any given card, which cards you draw are determined by the luck of the draw.

The FPS issue is a little more complicated, and only applies to some games. To illustrate this, I'm going to use two games most everyone who hasn't been living under a rock since 1999 is familiar with: Counter-Strike and Halo. CS may offer a pure-skill FPS under a given scenario, whereas Halo has chance elements. Every CS match starts at set locations. Teams have set resources available. The game's results are the results of the skills of the players. The only catch is that random team pairings may create an element of chance that doesn't exist in many other games. Could you imagine what would happen if the NFL randomly created teams every week? Some teams would simply be unmatched, solely by the "luck" of the team creation algorithm. Halo, on the other hand, employs a FPS mainstay that introduces an element of chance in addition to the random team potential: the spawn point. Once a match is under way, random respawns are a chance element. I'm sure everyone has experienced spawning right in someone's crosshairs only to be fragged an instant later. A string of those spawns, while random, would be a chance element that impacts the outcome of the match – not to mention it's really, really annoying.

So, I'm sure most of you are wondering by now, "What does this have to do with Guitar Hero?" Music games, such as Guitar Hero, are skill games, and therefore they may provide the perfect platform for video game gambling. In fact, I'm surprised it isn't already available or at least in development, given the popularity of the series. After all, the brand is already worth $1 billion.

The main difficulty is that short of a Guitar Hero for PC, it becomes almost impossible to use the actual Guitar Hero software. In case the reasoning isn't obvious, there's no way to tie the online play into independent servers that could handle the gambling aspect, unless Microsoft suddenly decided wagering with Xbox points was a good idea, which would also eliminate the lure of a true payout in the system.

How would this concept work? Fairly simple. Two players each pay $10 to compete, with the winner walking away with, say, $17 and the company keeping $3 for server cost, etc. It's clearly a volume based business model. Of course, there's also a lot of flexibility in it. If you're a Guitar Hero pro and want to only play challenges on expert, that's doable. If you're more the rookie and want to play on medium, it's also possible, although there will have to be some system to control for ringers cleaning out the easier difficulties.

There's even a potential future application of this concept in that casinos could begin to incorporate specifically designed versions of these games for on-site gambling. I'd imagine it would be a great fit at, say, the Hard Rock Hotel. Taking it one step further, it could be possible to see third party betting on the event. While there are a host of issues to resolve in terms of game security with respect to throwing the competition by amateur players, if those could be resolved, there would be numerous betting opportunities available. Besides a simple winner selection, there could be an over/under on a player's score, an over/under on the total song score, or even an over/under on note counts, streaks, or note correct percentages. And it's not just Guitar Hero that would work in this context. Dance Dance Revolution, SingStar, Rock Band, or even Donkey Konga would work, just as any other rhythm game. Until someone gets this off the ground though, it would seem that gambling on Guitar Hero will be limited to bets between friends and party goers, much like gambling on beer pong.


Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

This article was originally published on Joystiq.

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