LGJ: Where's my refund?

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There's a bit of a rash of games breaking other games or DLC breaking games these days, especially when it comes to Achievements. Issues like these often leave a lot of people asking, "Where's my refund?" but, as my colleague Alexander pointed out, no one really knows where to direct that question, if anywhere.

Downloadable content isn't something you can simply take back to GameStop or sell on eBay. And even if you know where to ask, can you get a refund for broken content? That's the issue we'll set out to resolve in this LGJ. To examine this, let's imagine a hypothetical: You buy "Fabled Halos" from the Xbox Live Marketplace, and at a later date, you buy the "Broken Code" expansion DLC. Broken Code not only causes Fabled Halos Achievements to stop working, but it also causes save game glitches with another title, Fallin: New Scottsdale, and somehow gives you access to the full version of yet another game Fortress Fighters. You're mad. The developer of Fortress Fighters is mad. Whose fault is this and who has obligations to fix what?

To answer this we have to consider the concept of a warranty. If you buy something, you have some basic expectations about what you buy and the seller standing behind its product to meet these expectations. This is often called the "warranty of merchantability", and it's implied in transactions unless there's a disclaimer like "Sold As-Is" or 'With All Faults" attached to the sale. The "warranty of fitness" for a particular purpose is also implied unless disclaimed. This means that if you went to a store and asked for something that would play an Xbox 360 game, and the store sold you a PS3,

the seller would be violating the warranty. These warranties exist in the US because of the Uniform Commercial Code, which has been enacted in some form in all 50 states.

But the UCC is limited to sales of goods, and digital downloads are not goods (and arguably not sales) but licenses to use intellectual property (though this debate is an entirely separate issue). Accordingly, by most expectations, the UCC terms wouldn't apply to the sale od DLC. Which leaves you with the terms you get from the Xbox Live Marketplace, which is where you bought all of this stuff. This is, unfortunately for you, not exactly good news as Microsoft's FAQ states: "All items purchased or rented from Xbox Live Marketplace, using the Web or your Xbox 360 console, are non-refundable."

In short: You're stuck with this "Broken Code" you bought and everything that goes with it. And this is pretty much the same across digital distribution platforms, though any could be free to break from the pack and offer alternative terms. You also can't really resell the game, since game systems by and large don't allow for content transfers to new users. From a practical standpoint, you're basically left to wait for a developer to release a patch, which seems almost inevitable given the negative media attention this debacle would create.

So, you can't return the broken DLC, but what about the other issues created? Unfortunately, again, there isn't much good news. You can't get a refund for any of the titles the DLC might break, either, and you're still stuck waiting until a patch is released. You're also not likely to get compensated for a lost save, frustrating as that may be. You might be able to get something for your trouble if you take the time to call in or e-mail a complaint, but this would be highly discretionary.

If the problem was big enough, the company may do something for those effected, but I wouldn't bet on it. Unless the game breaks the hardware, for example causing the Red Ring of Death (on old Xbox 360s), it's unlikely you'll see anything other than a patch.

But what about the developer of Fortress Fighters? That company is actually unlikely to see anything, either, assuming the glitch is patched and no users get the game indefinitely for free as a result. If the issue was not resolved, there would likely be a suit against the developer of "Broken Code" as well as Microsoft, but it would more than likely be resolved behind closed doors.

There is, however, a possibility that these policies could change in the future. The FTC has entertained making these sort of instances a consumer protection issue and thus regulating them. It's difficult to say whether that would ever come to reality, but if it does, there would likely be a set of criteria under which you, as the purchaser, would be entitled to a refund. That also means games are likely to be more closely scrutinized to avoid those very criteria. It can also be assumed that in such a case, the developer would be put under greater liability by the digital distribution system with respect to these kinds of issues. Still, even if the FTC does get involved, it's hard to say just what benefit, if any, the consumer would see from the agency's involvement.

[Image credit: Ben Husmann]

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., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own.

Reach Mark at: lawofthegame [AAT] gmail [DAWT] com

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