Revolution Liability Considerations

I just finished reading a very exciting article in the May 2006 Game Informer issue titled, "Armed for the Revolution: Red Steel." It detailed the plans that Ubi Soft Paris has to develop one of the launch titles for Nintendo's next generation console, The Nintendo Revolution. Much of the hype around Nintendo's contribution to the conole race is centered around their unique controller that combines elements of a remote controller, motion sensor and virtual reality control stick. It is this creative interface that Nintendo hopes will pull them out of the last place spot in the console war, providing players with a more active, immersive and interactive experience than ever before.

The new title by Ubi Soft will be a first-person shooter that capitalizes on this popular genre while infusing new elements of game play that change the way we look at this type of game. "'For us, it was very important to do a first-person game, because you are physically in the exact same situation as your character in the game ... the controller is exactly the same. It's a fantastic device to develop a first-person game for, because you see a hand with a device in it. If you make a good parallel between the controller and the device - be it a gun, a sword, or whatever, you have the feeling of really having it in your hand." (Damien Moret, Ubi Soft marketing game manager, GI May 2006, p. 47) With this idea in mind, the Nintendo and Ubi Soft team hope to discover all of the motions that a player could make to simulate on screen motions and exploit the capabilities of the controller. Some of these include, slashing, aiming, shoveling, turning a door knob, and even bowing.

While the gamer-land critics are all debating whether the Revolution controller will truly change the face of gaming or just be another flash in the pan gimmick, I am considering the legal implications of introducing such a device to the gaming public. With so much slashing, hacking, pointing and jerking it is foreseeable that people might experience impact related injuries such as sprains, strains, pulled muscles or other minor physical impairments. On the more serious side, however, are injurious that could result to the motor cortex or other areas of the brain from combining such movements with the flashing images of the game. I am curious to explore the duty to warn that Nintendo may have regarding use of this new device, and whether the game makers should entertain any additional legal protections given the novel application of this interface.


There are generally two sources of protection that game developers use to indemnify themselves from suit: product health warnings (addressing the duty to warn) and/or "as is" warranties on software (creating an assumption of risk scheme). Product health warnings typically address the phenomenon of photo-sensitive epileptic seizure that occures in some game players due to the various visual displays on screen. A typical health warning looks as follows:

Important Health Warning About Playing Video Games
A very small percentage of people may experience a seizure when exposed to certain visual images, including flashing lights or patterns that may appear in video games. Even people who have no history of seizures or epilepsy may have an undiagnosed condition that can cause these photosensitive epileptic seizures while watching video games. These seizures may have a variety of symptoms, including lightheadedness, altered vision, eye or face twitching, jerking or shaking of arms or legs, disorientation, confusion, or momentary loss or awareness. Seizures may also cause loss of consciousness or convulsions that can lead to injury from falling down or striking nearby objects.

Game makers were quick to add such health warnings to product packages after reports of serious injuries and/or deaths proximately or directly casued by video games prompted lawsuits. Serious injuries and/or deaths from video games have been reported in Korea, Japan and the U.S. ranging from such injuries as photosensitive epileptic seizures (leading to risk head injry) to pulmonary thrombo-embolism (seizure of the cortex leading to blood clot in the brain). On the lighter side of the injury scale, a condition called "Nintendo thumb" a type of athritis experienced by people who play video games too long w/o stretching their hands out, has been reported. While I have not run across any lawsuits regarding Nintendo thumb, it is interesting to note this condition given the expanded physical realm that the Revolution controller will introduce.

The other protective measure that game makers tend to use are End User License agreements (EUL). These are contractual conditions that make indemnification for harm from using the game a contractual condition of playing the game. It seems that PC software makes more popular use of such agreements, as the player must affirmatively scroll, click or check yes to the agreement to activate its terms (unlike the shrink wrap agreements that might not be as protective for tort claims). The effect of such an agreement puts the user on notice and creates an assumption of risk for using the product. They typically read as follows:

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" ... IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO) ... TORT (INCLUDING NEGLIGENCE OR OTHERWISE)..."


Whether or not such an EUL would work for the console industry remains to be seen as most console makers tend to use the health warnings instead. Also, it would be prudent to examine the warnings associated with other interactive, motion games such as Dance Dance Revolution (DDR). While most of the media touts the merits of this step-and-move-with-the-game interface, one 15-year old girl died of heart failure from playing it at a local arcade. DDR uses warning screens that flash before each game to let the player know of the risks, and cautions them to stop if feeling faint or otherwise unsound. Perhaps Nintendo should consider a similar warning for their new product.

Nintendo is a company that seems conscious of the need for adequate health warnings, and have a webpage set up to address such concerns. Products such as the Revolution and DDR present an exciting advance in the interactivity and the infusion of physical fitness to video games. As we move forward into the next generation of gaming, however, we must also anticipate the parade of horribles that could present itself and take adequate protections for both the video game industry and the consumer. I think that Nintendo should take all of the precautions necessary to continue revolutionizing the industry, including health warnings on packaging, EULs (triggered by clicking start) and to incorporate gradual physical training through their in-game tuitorials with a conscious concern for player health and safty (documented in development logs).