Go down gamblin’: The Big Fish Casino game ruling in Washington spawns more lawsuits

    
17

So here’s an interesting case that could impact online game development in the US. Apparently, a few weeks ago the Ninth Circuit of U.S. Court of Appeals determined that a casual game, Big Fish Games’ Big Fish Casino, includes illegal gambling. You might be thinking, duh, it’s got casino in the name, of course it’s gambling, but that had nothing to do with the appeals decision, which returns the case to the lower district to reconsider. The ruling instead hinged on the fact that users have to keep buying chips (if they fail to come out ahead in their winnings of said chips, which they probably do because that’s how casinos work) to keep playing.

“Without virtual chips, a user is unable to play Big Fish Casino’s various games. […] Thus, if a user runs out of virtual chips and wants to continue playing Big Fish Casino, she must buy more chips to have ‘the privilege of playing the game.’ Likewise, if a user wins chips, the user wins the privilege of playing Big Fish Casino without charge. In sum, these virtual chips extend the privilege of playing Big Fish Casino.”

As GeekWire points out, the chips are considered tantamount to the “something of value” clause in Washington state’s gambling laws, as they’re both the prize (which you can cash out) and the de facto currency to keep winning more prizes.

I know we have actual rocket scientists and lawyers among our commenters, but you’re not going to need to be either to see how what’s begun as a lawsuit about gambling games can be extrapolated to other games where the lockbox goodies you’re paying to gamble for could be considered essential to “the privilege of playing the game.” In fact, the same site reports four more related lawsuits lodged in the state in April.

Source: GeekWire. With thanks to Fábio!
newest oldest most liked
Subscribe to:
Andy McAdams
Staff
Kickstarter Donor
Loyal Patron
Andy McAdams

Oooo this is exciting. I have to write another blog post on my blog about it :-)

OK – so I read the actual opinion, instead of the meandering rat’s nest of an article over at Geekwire. The Tl;Dr version + probable impact to MMOs.

Tl;Dr – this case succeeded in the gambling argument because of the definition of “something of value” in Washington statutory law.

[A]ny money or property, any token, object
or article exchangeable for money or
property, or any form of credit or promise,
directly or indirectly, contemplating transfer
of money or property or of any interest
therein, or involving extension of a service,
entertainment or a privilege of playing at a
game or scheme without charge
.

(emphasis added)

The court said because the chips involved an extension of the privilege of playing a game without charge, they were a thing of value. It’s worth noting here, that this wasn’t Kater’s argument. She was relying on the black-market of chip exchange for her argument which the court ignores on basis of violating the ToS.

The other cases I’ve written about have a much narrower definition of a thing of value, hence other cases failed.

So what does this mean for MMOs? At the moment, not much, but it does set an interesting precedent in the concept of a ‘thing of value,’ and Washington state’s broader definition outside of traditional monetary compensation. If other states chose to start interpreting their own vaguely defined “Thing of Value” statutory requirements more in line with what Washington’s is, that’s an important step on the road to digital goods having inherent value and therefore meeting the consider / prize requirement of most gambling statutes.

The closer we get to that, the more risky things like lockboxes become. Similarly, the who concept of RNG / drops / loot in games will have to be hammered out in this brave new world. But this is an important precedent, and will definitely have repercussions.

Reader
Kickstarter Donor
Peregrine Falcon

So what does this mean for MMOs? At the moment, not much, but it does set an interesting precedent in the concept of a ‘thing of value,’ and Washington state’s broader definition outside of traditional monetary compensation.

You’re right. The only way that I could see this affecting MMOs would be if a subscription MMO allowed you to gamble with tokens that allowed you to buy subscription time. That’s the only way this ruling could be stretched to affect an MMO.

But this does look like it’s one step closer to adversely affecting the predatory lootbox style of companies like EA. Which, in my opinion, can’t come soon enough.

Andy McAdams
Staff
Kickstarter Donor
Loyal Patron
Andy McAdams

I think you are looking at it a little bit too literally, especially when it comes to MMOs. What constitutes the privilege of playing the game? The statute relates to much simpler games. MMOs are hugely complex beasts that could technically “play” (aka log in) but not be able to do the things you want without purchases. How does that fit this statute? For example, I think there was a game that limited the number of dungeons you could run in a day as a free player, then you were boned until the following day — or you ponied up.

Would that violate the privilege of playing the game? Maybe – I think it’s going to depend on how they define playing the game.

Reader
Kickstarter Donor
Darthbawl

I’m not a rocket scientist or a lawyer, but I did stay at a Holiday Inn Express last night… :P

And TGIF to everyone!

Reader
A Dad Supreme

Unfortunately, it’s not EA running this game or else the comment section would have blown up by now.

Considering it sounds like a boring-ass fishing game that no one here wants to play or has/had any interest in, no one gives a shit that it probably targeted as many kids as anything else currently under protest.

Wonder why the Netherlands are so quiet now… :P

Andy McAdams
Staff
Kickstarter Donor
Loyal Patron
Andy McAdams

It’s actually a Casino game – the “Big Fish” part is the studio branding — kinda King’s “Blahhbitty Blahhbitty Saga.” (just sans the ridiculous copyright claim on anything using the word saga *eye-roll*).

Reader
Kickstarter Donor
xanadox

This is an EA(and unfort. many soft. comp.) related problem. Read the comment from Schmidt.Capela downstairs.

Reader
Bryan Correll

boring-ass fishing game

It’s actually virtual slots. Which, IMO, is even less exciting than a fishing game would be.

Reader
wratts

I can’t think of anything this would extend to in most of the MMOs we play. It seems to be connecting the elements of risk and reward to the ability to continue playing. I’m not aware of any of the lockbox mechanics in the MMO genre where if you “fail” on the lockbox you’re in some way prevented from playing on the platform

Reader
Sally Bowls

IANAL, but that seems right to me.

Hmm, so if the customers will get fewer of these casino games that allow them to “battle the RNG,” then wouldn’t the demand to satiate their desires in other games increase; thus causing the demand for – and concomitant supply of – lockboxes in MMOs to increase?

Reader
Kickstarter Donor
Greaterdivinity

Eh, connecting this to traditional lockbox business models seems like quite a stretch. The key thing seems to be the fact that if you run out of money, you literally can’t continue playing until you spend…which sounds a lot like gambling. The currency has value in that’s the sole determinant in ones ability to play, and there’s no way to earn it once you lose it all without spending money.

There’s nothing that I can think of that’s remotely similar in any MMO/multiplayer game, even those with energy systems in place to limit how much folks can play before waiting on recharges/spending to recharge instantly. But those are temporary lockouts that don’t actually require players to spend money.

Reader
Schmidt.Capela

The catch here is that the definition of gambling usually requires the prize to be either money or something that can be exchanged into real money. This decision says that something that only has value inside the game, and can’t be traded for real money, can still fit the definition of “something of value” in the Washington state laws about gambling.

If I understand it correctly, the Appeals Court found that anything the player desires enough to pay real money for a chance to earn it can fit the definition of valuable needed for an activity to be seen as gambling. And even if I’m wrong, now that the courts already did the large perspective shift in established that something completely virtual, something that can’t be traded back into real world money or resources, can fit into the definition of gambling, jumping from that to the idea that other in-game valuables — such as lootbox prizes — also fit the definition is far easier.

Andy McAdams
Staff
Kickstarter Donor
Loyal Patron
Andy McAdams

Close – the court found that the specific statute for Washington State specifically included something that results in an extension of the privilege to play the game — which is the bit they lean on here. They are treating the chips earned in-game as things as value because they extend the privilege of playing (because you can’t play the game without chips).

Interestingly, Churchill Downs countered with the argument that players get free chips daily – and the court ignored the argument based on the precedent set with virtual slot machines and daily vouchers of ‘chips’ therein. This same precedent also established that the chips didn’t have to have any pecuniary on their own to meet the value requirement.

Reader
Schmidt.Capela

So, if an item from a lootbox can be traded for some in-game currency, and that currency — through ways that don’t violate the TOS — can be exchanged into anything “involving extension of a service, entertainment or a privilege of playing at a game or scheme without charge” — which would include things like Plex or WoW tokens — then according to that decision the game would be violating the state’s gambling statute.

If that is the interpretation, then WoW and EVE would run afoul of the law should they ever introduce lootboxes where the contents could be traded to other players.

I wonder how they interpret “extension of a service”. Is it just temporal extension of the rights of playing, or would an upgrade that increases the service’s convenience be seen as that too? Like, say, an extra bag in-game or a pet that loots mobs, things that improve the experience for the player?

Andy McAdams
Staff
Kickstarter Donor
Loyal Patron
Andy McAdams

That’s the rub. That “privilege of playing at a game” is the tricksey part. As you said, what constitutes that privilege? and where do we draw the line?

Reader
Strana M

So I wonder where Trion’s games Rift and Archeage fall. They both have lockboxes. They also have Eve versions of PLEX called REXX and APEX

Reader
Schmidt.Capela

This likely means that, should this decision stand and assuming REXX and APEX can be obtained by trading the prizes inside lockboxes you purchase with real money and in turn can be used to purchase subscription time, Trion would be liable in the state of Washington for running multiple illegal online gambling operations.