The facts of the case
Having allegedly become addicted and then cut off from his addiction, Smallwood sued, and after some legal wrangling, alleged eight counts in his second amended complaint, including:
- unfair and deceptive trade practices
- gross negligence
- intentional infliction of emotional distress
- negligent infliction of emotional distress
- punitive damages
Before the costly and time-consuming process of discovery could begin, NCsoft filed a motion to have the case dismissed for being brought before the wrong court, for not alleging wrongdoing by NCsoft that could be remedied by the court and for not describing NCsoft's alleged wrongdoing with enough specificity that NCsoft could defend itself. Somewhat surprisingly, Smallwood achieved a minor victory.
I want to be very clear here -- this guy did not
win his case or get a huge reward out of this. He did not
convince a judge or jury that NCsoft was negligent or that Lineage II
is that addictive. All that happened this week was that the judge dismissed counts 1, 2, 6 and 8 and allowed the case to move forward on counts 3, 4, 5 and 7.
This means that Smallwood can now request documents and testimony from NCsoft to determine if NCsoft harmed Smallwood's reputation by banning him for RMT and botting, if NCsoft was negligent in creating and marketing a highly addictive game without warning its customers that the game was addictive, and if NCsoft was negligent in banning Smallwood's accounts and thus causing him great emotional distress. Where is this case headed?
This suit doesn't seem likely to go much farther. Finding proof that NCsoft was negligent in designing the game to be addictive or that it negligently marketed an addictive game is not likely to happen. Either NCsoft will settle the case to avoid the expensive discovery fees, or after an appropriate discovery period, NCsoft will move for summary judgment. In a summary judgment, the judge will take everything the non-moving party (in this case, Smallwood) alleges as true and determine if the plaintiff has alleged enough to justify taking the case to trial. While stating that evidence will never be found and a judge will never do something is rarely a good idea, it does seem unlikely that a smoking gun of NCsoft's negligence will appear.
In the unlikely scenario that allows Smallwood to win, his damages will most likely be minimal. NCsoft's EULA, which is valid on the laws of the states in question (Texas and Hawaii), limits any damages from negligence to the subscription fees already paid. Theoretically, Smallwood may manage to prove gross negligence, which is a "conscious indifference to consequences," and collect the punitive damages this kind of wrongdoing justifies. What about WoW?
Let's assume this case goes to trial or even wins. Just as tobacco companies are required to put warning labels on cigarettes, MMOs could be required to come with a warning label. Such a regulatory scheme may backfire, however. "This game is so awesome you'll never want to stop playing!" doesn't seem like the kind of warning that would discourage many potential addicts.
Lawsuits, particularly the discovery process in which a company is required to disclose millions of documents and give many hours of interviews, can be very expensive -- regardless of whether the company is actually at fault. Add in the additional cost of a settlement to remove the source of negative publicity, and money that could be used to make better games get diverted to far less productive uses. If this kind of lawsuit becames popular, subscription fees might increase. That being said, however, this kind of suit is not likely to get that far. For the foreseeable future, we probably don't have to worry about our monthly subscription fees increasing to provide a pool of money for similar suits against Blizzard.
This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law, contact Amy at firstname.lastname@example.org, @wowlawbringer on Twitter, or whisper Patent in <It Came From the Blog> on Zangarmarsh (US-H).