Editorial: Gamestop Gonna Get Sued

If it may please my constant readers…

Ladies, gentlemen, and assorted nether creatures of the Internet, we have gathered today to discuss a matter of grave legal important to the gaming community: that of the threat of Gamestop.

Gamestop’s business model has never been… model. Now, some disgruntled consumers (does Gamestop have any gruntled consumers?) have decided to sue over Gamestop’s used-game model.

The discerning reader may ask, “why is this a lawsuit? Surely no one could have actually lost a jurisdictional minimum amount to bring suit in even the lowest county courts of a state. And you would be correct. You might even ask: sure, a consumer could be fooled once by Gamestop’s insidious sales pitch, but twice? Thrice? Enough to develop a claim that any but the most destitute and starving lawyer would deign to take without a sizable retainer?

The answer, my dear Watson, is the class action lawsuit. A class action is where a definable group of people bring a claim through a class representative (in this case, James Collins). The reason a class is used is because the total number of people with standing (that is, those who have suffered actual injury) is so large that it would be impractical and difficult to satisfy everyone’s rights without trying everything together in a single, massive action.

Abandon hope all ye who enter here
Abandon hope, all ye who enter here!

Collins’ complaint is simple: various games sold by Gamestop in the original packaging promise downloadable content, such as extra levels, weapons, armor, or other non-essential yet valuable content. Much of this content is redeemable only with a single code, which presumably would have been used by the original owner. The purchaser of a used game has no claim on this content… but it is still advertised.

But is that really a valid suit? After all, should consumers have a reasonable expectation that they are buying a full game when they buy it used and at a discount, especially when disclaimers appear on the packaging that downloadable content is available only to first-time purchasers? Would a consumer expect a used car, for example, to still be under the manufacturer’s warranty?

On the other hand, electronic media is quite different. A person that buys a used DVD expects to get the full DVD experience… but what about a DVD that contains a single-use code for a digital download? Does a second-time purchaser have the same rights to make a digital copy as the original purchaser?

These are not unimportant questions: in a changing world, where distribution is moving away from hard copies to digital, what does it mean for people that purchase a used copy of something? Cases like this are how those issues are shaped and litigated. How would you decide this issue?

19 comments

  1. seems to me if you by a game used you should suck it up. it makes sense to me that if someone pays more they get more stuff. of course Gamestop has issues with it’s pricing too, doesn’t it…

    though even if it isn’t fair this whole thing doesn’t seem sue worthy to me. but I’m of the belief that one should only sue if actual harm is caused in some way but I can understand why someone would think differently. specifically, I can understand way someone with something to gain would think differently.

  2. SN — please don’t use the f-word around lawyers. It makes us stabby.

    Still, this lawsuit does (in my view) lack merit; it’s not that I don’t see how he has at least a colorable claim under California consumer protection laws. We’ve all bitched about Gamestop’s practices before, I’m sure, so there is some element of malfeasance on Gamestop’s part… but a reasonable consumer ought to know, on purchase of a used game, that some of the extras attendant to a new copy might be used. I also fail to see how the damages the plaintiff suffered are anything but extremely minimal, and although this is in the nature of a class action, it strikes me as disingenuous on the lawyer’s part, because all the class members (of which I am a member) might hope to recover is around $50-$100, while the lawyer will make much, much more. If I’m gonna sue someone, I’m gonna do it myself. I didn’t spend three years in hell for other people to make my attorney’s fees for me.

    Breaka — the law specifically says taht you shouldn’t sue if you can’t prove harm; it’s a key component to obtaining a remedy (either monetary or injunctive relief). There is some limited provision for suits seeking an adjudication of rights between parties (declaratory judgment), but a suit of this nature seems more akin to something I’d expect in small claims or justice courts, rather than a United States District Court.

  3. @Lane – yeah that’s what I was thinking. if it were against the law to be a dick Lusi would be running the site from cell block D right now… frivolous.

  4. Lusipurr wouldn’t make it in prison. I’m unaware of any British protection gangs.

    Besides, I think I might seek to intervene in the suit. That way I can have any and all former Gamestop employees jailed as a condition of the judgment. Indefinitely. And complete my master plan to hijack this site for my own nefarious purposes put a chicken in every pot and a controller in every hand!

  5. ALSO I WILL SHIV THE NEXT MOTHERFUCKER THAT SAYS “FRIVOLOUS.” LAWSUITS, EVEN MERITLESS ONES, ARE SRS BZNS.

  6. Well how else would you better describe this litigious wank?

  7. Lusipurr (looks around to make sure nobody is here) Ginia is secretly seducing you little by little so she can make babby! Sadly, after babby is formed, they need to do way instain mother, and just like that- Ginia is gone…

    THE END

    PS. xD

  8. Litigious wank isn’t bad.

    The problem with “frivolous” is that it conjures up most people’s idea of “frivolous lawsuits” like the McDonald’s coffee case, one which, when you read about the actual facts, you start to say, “jeez, skin grafts because of how hot the coffee was? Maybe there’s something to this after all!”

    Lawsuits that make it past the initial stage (facts alleged that, if true, might enable the plaintiff to relief) aren’t frivolous. Many them are meritless, like this one, or any other of a number I could find, but they’re not “frivolous” because they represent a lot of work and worry for everyone involved. I can safely say that once you’re sued (once the sheriff pulls you out of your office to hand you process) your view on what counts as frivolous changes.

    So I prefer the term “meritless.”

    Also, there will be forming of babby on my watch.

  9. While I don’t think that a lawsuit is necessarily the best way to go about this, I think it is an actual issue. Not really the whole “used game” market in general (that’s been around for a while), but specifically the issue with one-time-use download codes. Now, I don’t have a problem with the codes in and of themselves, but I bet if I were to go into a Gamespot and try to purchase one of the used games in question, they’d make no mention of the fact that it’s an inferior in some way to the new copy (since they have no motivation to do so). In the end, I’d have to end up paying more money for a used copy than I would a new copy (I’m assuming here that Gamespot still charges about $55 for a game that would be $60 new, correct?)

    It’s funny that you would use the used car analogy, Lane, I’ve actually used the same analogy myself on occasion and I think it holds pretty well. Like I said, I don’t think there’s anything wrong with the practice itself, but the problem is I bet most consumers will just assume that the quality of the game hasn’t degraded, since that’s been the case for the past decade or so since Gamespot entered into the used game business. I’m not sure exactly where the responsibility of educating consumers should lie in this case. My guess would be the publishers will be the most aggressive about it, since they stand the most to gain. The fact remains, though, that you could argue that Gamespot is guilty of misleading marketing through omission. Like I said, a lawsuit might not be the best way to get them to acknowledge this, but personally, I don’t have a better solution, you know? Without something being done, consumers are just going to keep getting tricked into paying $65-70 for a used game instead of $60 for a new copy.

  10. DG — you’re right, and that’s what this suit says: the plaintiff ended up paying more once he bought the DLC for Dragon Age after picking it up for $5 off.

    To which I respond, it’s like a used car: you’re getting it used. What if the previous owner had a heavy foot and the brakes are almost worn down? It’s about $400 cost right there.

  11. @Lane: Yeah, agreed. I think the best way to remedy this situation is more consumer awareness than anything else. Sticking with the car analogy, it would be like if every used car of a particular model automatically needed $400 worth of repairs. I would think that, once word about this spread, either the used price of the car would drop so that the used price + the repair cost came to less than the new price, or people would stop buying that particular model used. Gamestop has no reason to promote this knowledge, though, since either situation is bad for their bottom line. That’s why I say I don’t necessarily agree with the lawsuit, but I can understand the logic behind it.

    From a legal perspective (and obviously you’d know much more about this than I do), it seems like the biggest grey area is the promise of “free DLC” on the game box. I would think it would be a better practice for the packaging to say “free DLC with new purchase.” That way, the consumer knows the information, and the publisher is less likely to lose a sale to a used game.

  12. According to the suit itself, a disclaimer appears on the package (albeit in small print) that the codes are one-time use only valid only to the original purchaser.

    The problem (and like I said, I admit Gamestop’s hands aren’t clean) is that Gamestop probably isn’t doing all it can to make people aware of this. They need to start adding a line to their sales pitch, but that’s about it.

  13. -IMO there is no way that retailers are liable, if anything it is the publishers who are to blame for gimping their games for secondhand customers, but I would be loathe to apportion them blame either. This really just comes down to the gross stupidity and guileless, gormless ignorance of consumers who have an apparent aversion to making an effort to understand what it is that they are even purchasing. In a sane world this case could only result in the claimants being stripped naked, tarred and feathered, and paraded through the streets so that people who don’t utterly fail at life can point at them and laugh!

  14. @Lane: Ahhh, I actually didn’t see that there was a sticker on the used game packages warning about just this issue. I’d say that would be enough on Gamestop’s part. If they added a line to their sales pitch, all the better, but I’d hardly thing they’re legally obligated to do so.

  15. If you buy a used game thinking you get to re-use the one-time-use-only codes inside, you are a dunce.

    However, GameStop should adjust their used sale prices accordingly. Hopefully this matter will bring attention to the ridiculous imbalance in prices: like this case of saving $5 on a used game so you will have to spend $15 to get the same stuff a new copy has. Clearly used should be cheaper than it is. Buying used and then purchasing the included DLC should still result in a savings, esp. considering GS doesn’t give hardly anything for trade-ins, anyway.

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