In an evolving technology-driven society, the gaming industry has flourished. According to the Entertainment Software Association, video game sales reached $57.2 billion in 2023 and about 190.6 million Americans play video games weekly.1[1] https://www.theesa.com/resources/essential-facts-about-the-us-video-game-industry/2024-data/ With this popularity comes litigation, and big corporations have been the focal point of lawsuits alleging that their intentional design is the cause of many Americans’ gaming addiction – resulting in higher rates of social isolation, anxiety, and depression. This article will cover how consumers are trying to hold companies liable, limitations preventing consumers from succeeding, the landmark decision in Brown v. Ent. Merchants Ass’n establishing video games’ First Amendment protections, and the recent litigation seeking to hold companies liable.
Video game addictions have worsened due to the influx of online and cloud gaming that provides users with quick and easy access to games and in-game purchases.2[2]Ronald Miller Jr., Video Game Addiction Lawsuits, (Sep. 19, 2024), https://www.lawsuit-information-center.com/video-game-addiction-lawsuits.html. This addiction has been linked to social isolation, low productivity, anxiety, depression, excessive anger, and repetitive stress injury (RSI), and may disrupt cognitive functions like time-perception and decision making.3[3]Id. Video game users are seeking legal remedy against companies for the damages they have suffered from their gaming addiction, and allege that companies failed to warn consumers of the addictive effects.4[4]Id.
The video game industry’s growth and the increase in video game addictions are allegedly due to patented monetization schemes within games that target minors.5[5]Id. Minors are lured into these schemes through “microtransactions,” or in-game purchases of downloadable products to intensify the user’s addiction while companies continue to increase profits.6[6]Id. For example, Fortnite has an in-game currency called “v-bucks” which is either earned through gameplay or through direct purchases. The user can purchase different “skins” or outfits for characters and unlock hidden game features. Lawsuits claim video game developers rely on minors and young adults becoming addicted so users will spend more hours and money on the game, which is reinforced by the microtransactional scheme to further extend the gameplay cycle.7[7]Anne Bucher, Abraham Jewett, Video game cos. Seek dismissal of addictive gaming lawsuit, (Sep. 26, 2024), https://topclassactions.com/lawsuit-settlements/consumer-products/video-games/microsoft-nintendo-lawsuit-claims-companies-get-users-addicted-to-boost-profits/.
The Crux of Video Game Lawsuits
Legal action has been taken against the major players in the multi-billion-dollar video gaming industry. Some of the major defendants in these lawsuits include Epic Games, Inc., known for developing and selling Fortnite, Roblox Corporation, who is a part of the development of the Roblox series, and Activision Blizzard, Inc., the developers of the Call of Duty series.8[8]Id. These lawsuits allege that companies are prioritizing profits over user safety by intentionally designing their products to target vulnerable adolescents and young adults, while failing to warn users about their games’ potentially addictive effects.9[9]Id. at *2, 6.
Brown v. Entertainment Merchants Ass’n (2011)
Brown v. Ent. Merchants Ass’n is a landmark decision where the U.S. Supreme Court struck down a 2005 California law that prohibited the sale or rental of “violent video games” to minors.10[10]Brown v. Ent. Merchants Ass’n., 564 U.S. 786 (2011). Brown established that video games, including those of violent depictions, qualify for First Amendment protection.11[11]Id. There, the Court rejected the argument that video games present special problems because they are “interactive.” 12[12]Id. at 798 (2011). ; The Court compared video games to books, movies, and plays, which to some degree are all interactive and communicate ideas and social messages through their characters and plot and thus, all enjoy the protections of the First Amendment.13[13]Id. In addition to video games themselves, the Court emphasized that minors are also entitled to First Amendment protections.14[14]Id. at 794 (2011).
In conducting its analysis, the Court applied strict scrutiny, which required California to demonstrate that the law at issue was narrowly drawn to serve a compelling government interest in order for it to stand. The California law, which restricted minors from purchasing violent video games, did not survive strict scrutiny. 15[15]Id. In an opinion by Justice Scalia, the Court explained that the evidence was not sufficient to show a direct causal link between violent video games and harm to minors—the Court was not persuaded by the studies California relied on to show the connection between violent video games and child psychology. In addition, the Court said the law was both underinclusive and overinclusive; underinclusive because it did not actually protect children since they can still play violent video games as long as an adult purchases it for them, and overinclusive, because not all parents care whether their child plays violent video games or not. 16[16]Id. Brown established that video games are protected under the First Amendment and are entitled to the same free speech rights as other forms of communication like books, film, and music.
Recent Litigation: Sayers v. Microsoft Corporation et al (2024)
In April 2024, Andrew Sayers filed lawsuits against Microsoft Corporation, Nintendo of America, Inc., Take-Two Interactive Software, Inc., Rockstar Games, Inc., Rockstar Games UK Limited, Activision Blizzard, Inc., Treyarch Corporation, Roblox Corporation, and Epic Games, Inc., in the Southern District of Georgia.17[17]Sayers v. Microsoft Corp., Civil Action CV424-78 (S.D. Ga. Apr. 24, 2024). Sayers’s lawsuits claimed that the companies contributed to a “worldwide epidemic” of video game addiction which has negatively impacted his life.18[18]Kelcey Caulder, Video Game Giants Want Addictive Games Suit Tossed, Law 360 (Sep. 18, 2024), https://www.law360.com/corporate/articles/1879959/video-game-giants-want-addictive-games-suit-tossed. Sayers claimed that the defendants’ products caused him to suffer emotional distress, rage, behavioral issues, and withdrawal symptoms. Sayers also claimed that his anxiety, depression, and attention-deficit hyperactivity disorder worsened, causing him to seek outpatient counseling and tutoring.19[19]Id. at *6.
On September 19, 2024, Microsoft Corporation, Nintendo of American, Inc., Roblox Corporation, Activision Blizzard, Inc., and other companies in the video game industry filed motions to dismiss claims that the companies intentionally designed their games to be addictive for profit.20[20]Id. at *6, 14. In multiple motions to dismiss, the defendants asserted that the plaintiff’s claims were barred by the First Amendment.
In a joint motion, Microsoft and Nintendo argue that they are precluded from liability because video games are artistic expressions entitled to full constitutional protections and that the claims against them are analogous to suing a bookstore for distributing third-party content.21[21]Ronald Miller Jr., Video Game Addiction Lawsuits, (Sep. 19, 2024), https://www.lawsuit-information-center.com. Microsoft and Nintendo also cited Section 230 of the Communications Decency Act as another defense, 22[22]47 U.S.C. § 230 (1996). which precludes liability from “any cause of action that would make service providers liable for information originating with a third-party user of the service” since they are not the creators of these games, but are merely the “online platforms” that games may be downloaded or accessed from. 23[23]Congressional Research Service, Potential Impacts of a U.S. Central Bank Digital Currency (CBDC), R46751, at 1 (2021), https://crsreports.congress.gov/product/pdf/R/R46751.
Other defendants such as Activision, Epic Games Inc., Rockstar Games UK Ltd., Take-Two Interactive Software Inc., and Microsoft acknowledge that they do develop some of their games, however, they argue that they are still protected by the First Amendment under Brown v. Ent. Merchants Ass’n. These defendants argue that Sayers’s claims would fail under Brown because the psychological claims made by Sayers are “indistinguishable” from the studies that failed to persuade the Court in Brown of a link between child psychology and violent video games. 24[24]Id. at *14.
What’s Next?
On October 10, 2024, Sayers voluntarily dismissed claims asserted against Nintendo of America Inc. and Epic Games, Inc., neither of which had filed an answer or motioned for summary judgement. Sayers continues to pursue his claims against the other defendants. 25[25]Kelcey Caulder, Nintendo, Epic Games Dropped From Addictive Gaming Suit, Law 360, (Oct. 11, 2024), https://www.law360.com/articles/1889394/nintendo-epic-games-dropped-from-addictive-gaming-suit. The future of these video game addiction lawsuits is uncertain as many of these cases face legal hurdles, particularly in proving a direct causation and overcoming First Amendment defenses, which the Courts tend to be very stringent on regulating protected speech. However, if more lawsuits pave way, there may be potential that class action lawsuits evolve.
Mackenzie Shane is a 2026 J.D. Candidate at Brooklyn Law School