Blog Commenter Sues Volokh Conspiracy for Making Him “Psychologically Dependent and Addicted” to Commenting

OK, not really (we’re not that good). But a player of the online role playing game Lineage II has brought such a suit against the game’s designers — and a federal court has denied a motion to dismiss, allowing the claim to go forward. For details, see the opinion, Smallwood v. NCSoft Corp. or the Wired article, but I quote below the court’s summary of the plaintiff’s factual allegations.

Note that the court rejected the fraud claims based on the supposed misconduct in wrongfully canceling the account and supposedly cheating the plaintiff out of $65 worth of play time. Rather, the court allowed the case to go forward focusing on the “failure to warn and defective product claims” (plus the defamation claims, but those are a separate matter).

I hope the court will ultimately throw the case out on summary judgment, after discovery has taken place. But that will be after defendants have to go to a great deal more litigation expense. It seems to me that such discovery should not be necessary, and that our tort law system should make clear that as a matter of law one can’t sue for producing allegedly addictive video games — just as one shouldn’t be able to sue a company for producing allegedly psychologically addictive book and movie series (think Star Trek), allegedly psychologically addictive board games (think how many people are obsessed with chess, Scrabble, or what have you), allegedly psychologically addictive sex toys, and the like.

Note, incidentally, that the court held that the possible remedies for negligence are likely very limited, because of game players’ contractual waiver of the game designer’s liability. But the court concluded that, under Texas law, gross negligence liability can’t be waived, so the plaintiff’s case makes sense only if the game company is grossly negligent — and the court held that the plaintiff did state a claim for such liability.

In any case, here are the allegations:

Plaintiff’s Second Amended Complaint alleges the following. Defendants designed and distributed interactive role playing internet games to the public, including the game “Lineage II.” In 2004 or 2005, Plaintiff opened three accounts, thereby becoming licensed to play Lineage II. The accounts were paid for by charge card, three months in advance. Plaintiff played Lineage II from 2004-2009 for over 20,000 hours. Plaintiff experienced great feelings of euphoria and satisfaction from persistent play, as did other users of Lineage II.

Plaintiff became psychologically dependent and addicted to playing Lineage II. During the years that Plaintiff played Lineage II, the phenomena of psychological dependence and addiction to playing computer games was recognized by and known to Defendants. Defendants never gave Plaintiff any notice or warning of the danger of psychological dependence or addiction from continued play.

Plaintiff further alleges that “to build its reputation and increase profits, defendants have to continually create new games or game versions, and sell more licenses.” Thus, in 2009, Defendants began selling and licensing a new computer game, “Aion,” which was quite successful. Plaintiff alleges that “[o]ne method of promoting Aion, was to lock players out from the older game Lineage II, thus creating popularity and publicity for the newer game Aion, a larger amount of users/licensees, and increased profits for [Defendants.]”

In September 2009, Plaintiff discovered that he had been “locked out of the game, i.e., that defendants had ‘banned’ him from further play of the game.” Plaintiff alleges he received no warning that he was in danger of being banned or had been banned and that he was banned from all accounts belonging to his internet protocol (“IP”) address.

Plaintiff alleges that he made numerous attempts to contact Defendants to determine why he was banned, but that “there was a maze of purposeful obstruction to receive any information on why he was locked out.”

Plaintiff alleges that he pre-paid for access to his accounts and had approximately one-and-a-half months of access left at the time his accounts were banned. Plaintiff alleges that “Defendants unlawfully retained plaintiff’s money on account [valued at $65], for playtime that was intentionally withheld and denied.”

Plaintiff alleges that Defendants told him he was banned from the game for engaging in an elaborate scheme to create real money transfers. Plaintiff alleges that NCSOFT sent him an email to that effect on October 5, 2009, which Plaintiff attaches to the Second Amended Complaint. Plaintiff denies ever being involved in any scheme to make real money transfers or making any real money transfers.

Plaintiff also asserts that there are Game Masters in Lineage II who are supposed to ensure fairness, but that the game rules were not enforced fair and square. Plaintiff alleges that Defendant conducted “banning purges,” which were “defendants’ concealed methods to promote Aion and increase their profits.”

Plaintiff asserts that he continues to this day to have a compulsive urge and need to play Lineage II and that he has never received any warning, notice, or advice from Defendants as to the danger of addiction from playing Lineage II.

Plaintiff alleges that as a direct result of using Lineage II and Defendants’ acts and omissions, he has suffered extreme and serious emotional distress and depression, he has been unable to function independently, he has suffered psychological trauma, he was hospitalized, and he requires treatment and therapy three times a week.

In summary, Plaintiff alleges that he “would not have bought and played Lineage II if he had been aware that he would be subjected to the dishonesty and unfairness described above, or that he would become addicted to the game.”

Thanks to Opher for the pointer.