Of course, as usual, it's a little more complicated than that. Products liability rules vary by state, and some impose a negligence standard while others use strict liability. While I'm sure most people are familiar with negligence, strict liability may be a more foreign concept. In short, strict liability is liability without fault. Generally, it's applied to certain dangerous activities, the classic example being the use of dynamite. If you're using dynamite, you're responsible for anything that may happen as a result, foreseeable or not, intentional or unintentional. So, in some states, manufacturers are liable just by virtue of making the product.
There's only really one major element to prove in products liability, other than damages: that the product is defective. Being 'defective' can take any one of three primary forms: design, manufacture, or marketing. Defects in design are fairly straightforward, being that the product was designed in a way that doesn't work or only works in an unreasonably dangerous fashion. This would include things like certain car recalls, and possibly the "Red Ring of Death" or PS2 DVD drive failures. Defects in manufacturing, on the other hand, are where the product is made wrong and therefore some of the ones in the marketplace are faulty. You'd be hard pressed to find a product on the market that didn't have some percentage of defectiveness, most certainly in the video games industry, but not all defects cause damages beyond needing to replace the product, which is typically covered by a warranty.
"This is the reason you're told not to swallow DS cartridges."
The third defect is the one that typically makes the news. Defects in marketing are defects in labeling, improper instructions, or improper warnings that accompany the product. This is commonly called "failure to warn." It's because of this third category that practically every product in the US is covered with obscure and often obvious warnings. This is the reason you're told not to swallow DS cartridges, and it's the reason your Wii forces that irritating warning screen on you before each game you play.
It's arguably this labeling issue that could be morphed into liability for game developers, short of wholescale revision of the law. I can't think of any games that are labeled with a "may cause violent behavior" warning because the science behind that causality is murky at best. You'll notice games contain a litany of other warnings, from seizures to eyestrain, because these conditions have been more clearly demonstrated and the developers want to be protected from suits based on people recieving damages with regard to these proven potential harms. If someone who suffered a harm that could be directly tied to a game could present concrete scientific evidence linking the two, there's a chance they could succeed in a lawsuit. And because products liability brings in the entire chain, it's concievable that, in addition to the game developer, the publisher, retailer, and potentially (though a far more remote chance) even the maker of the console it plays on could be brought into the suit. Of course, a behavior impact warning would likely negate this claim, but at the same time, that would likely be seen as an admission that games do effect behavior, or in other words, an admission that "Jack Thompson was right
The problem is that products liability is typically not successful against ideas presented in media. Whether the failure is on First Amendment grounds or a lack of causality, the overwhelming majority of suits, which have typically been against movie makers, have failed in court.
Taking the broader view, in the vein of last week's cries
for criminal code reform, a revision to the statutes that govern products liability could defacto include behavior "caused by" media, although, again, singling out video games would likely be too narrow. And again, I would imagine a law like this would be held to fail under the First Amendment. As I've stated before, having free speech requires responsibility from society as a whole. It is not the speaker's fault if the listener uses that information to do harm to others. To say otherwise would mean that free speech would be, in essence, dead because no good-natured person would speak for fear of that speech being misused by listeners.
In short, it's unlikely that we'll see an establishment of civil liability for game makers that would be successful based on the current state of the law and research on game violence. The effect would be too great on speech to be sustainable. While the victims of acts that may or may not have been inspired by games certainly deserve our sympathy, it's unreasonable to make game developers liable for these occurrances simply because they have deeper pockets than the person who did the damage.
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.
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