By John Haskell

Long gone are the days of buying a video game at retail price and experiencing an intense, immersive experience that will hold you for hours on end. No, nowadays we live in a world of micro-transactions, “pay-walled” downloadable content, and skins. Sometimes necessary to purchase to get farther in a game, or remain on the same even-playing field with other gamers in online games, these activities could come at a high cost, even outside of dollars and cents.

Eerily reminiscent of the skin gambling controversy seen just two years ago at Valve, recently, one form of downloadable content in video games has come under the microscope of both lawmakers and regulators alike—loot boxes. Employed in many popular “AAA” video games such as Sledgehammer’s Call of Duty: WW2 and Electronic Art’s Star Wars: Battlefront II, loot boxes have become all the rage for developers of all sizes who include multiplayer components in their games. Similar to a slot machine, a loot box provides players with an opportunity to use either in-game currency, or real-world money to purchase a “box” in a video game that contains random, in-game awards. These awards generally contain between one to five “randomly” generated items including but not limited to: skins that change the aesthetic look of your character in-game, power-ups that can help affect how quick you level up in a game, or even items that could help you to gain a competitive edge over other players in game—such as “locked” weapons or characters.

Distinguishable from the outright purchase of a new skin or a micro transaction in a video or mobile game that simply unlocks something when you press “purchase,” many are equating loot boxes nowadays to gambling. For example, on November 21st, 2017, Chris Lee, a member of the Hawaii House of Representatives, issued a statement regarding, what he called, the “predatory behavior” of video game publishers who employ loot boxes in their games. Focusing on one recent release in particular, Electronic Art’s Star Wars: Battlefront 2, Lee referred to the game as a “Star Wars themed casino, designed to lure kids into spending money.”

Similarly, in the European Union, gaming authorities in both Belgium and the Netherlands recently launched investigations into whether the purchase of loot boxes in games such as Battlefront 2 can be categorized as gambling. Should these investigations ultimately result in the classification of loot boxes as gambling, some industry experts have noted that if the players of these games are of legal gambling age, they would be legally allowed to participate in these activities. However, an inherent difficulty with such a practice would be determining whether someone who plays these games is of legal gambling age, as oftentimes adults purchase these games for those underage as gifts and the like. As such, it is these same industry experts who have noted that in recognizing this, loot boxes could potentially be banned outright and entirely.

However, some authorities and lawmakers have already weighed in on the controversy. In October of 2017, the Electronic Software Rating Board (“ESRB”), issued a statement that they did not consider loot boxes to be gambling. Equating these opportunities more along the lines of collecting cards, the ESRB noted that, although loot box schemes include elements of chance, the “player is always guaranteed to receive in-game content.” Likewise, the U.K. Gambling commission also recently ruled on loot boxes, ultimately concluding that they too do not consider them a “licensable gambling activity,” as they cannot be traded-in for real world currencies.

Regardless of the American or EU efforts to curb this alleged “predatory behavior,” game developers are already receiving a wakeup-call that their consumers are growing tired of loot boxes. Following the recent release of Battlefront II, many players took their concerns to Reddit, a popular forum for people to air their grievances online. After the realization of many players that some of their favorite characters, such as Darth Vader or Luke Skywalker were locked behind “pay-walls” that could only be accessed via the purchase of an astronomical amount of in-game credits, or “grinding,” approximately 40 hours for some characters to unlock them, Electronic Arts cut the price of these characters by nearly 75 percent.

Ultimately, the future legality of loot boxes in video games is uncertain. While the investigations in both the U.S. or E.U. could lead to future regulations down the road, for now, consumers will have to deal with how engrained loot boxes have become in many popular video games, or stop purchasing these games altogether.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

Student Bio: John is Editor-in-Chief of the Journal of High Technology Law. He is currently a 3L at Suffolk Law. He serves as Secretary of the Real Estate/Trusts and Estates Association and holds a B.A. in History from Virginia Commonwealth University.

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