Forcing players to walk the plank: why end user license agreements improperly control players' rights regarding microtransactions in video games.

• Author: King, Chelsea

TABLE OF CONTENTS INTRODUCTION I. THE CURRENT LEGAL FRAMEWORK: END USER LICENSE AGREEMENTS A. EULA History of Enforceability B. Enforceability of the League of Legends EULA Based on Current Case Law II. THE REASONABLE EXPECTATIONS DOCTRINE A. History and Development of the Reasonable Expectations Doctrine B. The Reasonable Expectations Doctrine Examined in Prior Literature Concerning Video Games. C. The Reasonable Expectations of a League of Legends Player III. RELIANCE THEORY A. History and Development of Reliance Theory and Damages B. How Scholars Have Argued Reliance Theory in Prior Video Game Literature. C. Reliance Theory and Purchases of Champions and In-Game Assets in League of Legends. CONCLUSION INTRODUCTION

As of January 2014, around sixty-seven million people played the popular online game League of Legends on a monthly basis. (1) League of Legends is a free-to-play online game that falls into the genre of "Multiplayer Online Battle Arena" (MOBA). (2) MOBAs generally consist of two teams of players where each player controls a character and various computer-controlled units that fight alongside the players to destroy the opposing team's base or main structure. (3) A team wins once the opposing side's base has been destroyed. (4) In League of Legends, players control characters called "champions" in two opposing teams consisting of five players each. (5) Players can pick from a variety of different champions to play in a League of Legends match. (6) Players can also customize these champions' appearances with purchasable vanity items called "skins." (7) Following the common MOBA layout, (8) the two opposing teams battle in a match where the objective is to destroy the opposing team's base, which is called the "nexus." A typical match is around forty-five minutes long, (9) and although the objective always remains the same--destroy the opposing team's nexus--each match is unique in that a player can always choose a different champion, be teamed with different players and different champion combinations, and make new decisions regarding how to play their specific champion in each match. (10)

Although League of Legends purports to be a free-to-play game (11)--and it is quite possible to play League of Legends without ever spending a penny--the option to make microtransactions within the game exists. (12) A microtransaction is the ability to make a purchase within a game. (13) Generally, a microtransaction provides a player with the opportunity to purchase extra content created for a game after the game has already been released. (14) In League of Legends, microtransactions allow players to purchase a type of currency called "Riot Points." (15) Players can use Riot Points to buy virtually everything in the store, (16) and, in fact, there are some pieces of content that can only be purchased with Riot Points. (17) One of the most important microtransactions players make in League of Legends is purchasing champions--players must have a champion in order to play the game. (18) Players can purchase champions with real money via Riot Points or with an in-game currency called "Influence Points," which players earn through actually playing the game. (19) Although Influence Points can buy champions--thus potentially eliminating the need to ever purchase Riot Points--the amount of time it would take to earn enough Influence Points to actually buy a champion is often so high that most players would rather just spend real money to obtain their desired champion. (20) Also available for purchase are the purely cosmetic skins, which change the appearance of the champions--usually by changing the champion's clothing--but offer no advantage to the way the game is actually played. (21) Players, however, can only purchase skins with real money via Riot Points. (22) There are hundreds of items and champions that players can purchase through microtransactions, but in the world of online gaming, these purchases do not give full property rights to a player. Instead, players are merely purchasing licenses to use the content, and game developers employ end user license agreements (EULAs) to ensure that players will only maintain a license interest in the content purchased through microtransactions. (23) Few League of Legends players probably understand that when they make a microtransaction they only receive a license interest, but whether a player understands this distinction was irrelevant until July 30, 2015, when Riot Games made the unprecedented decision to remove a champion and all of its accompanying vanity items from the game. (24)

On July 21, 2015, Riot released an event called "Bilgewater: Burning Tides." (25) An "event" is extra, time-sensitive content that players can choose to play or not play. (26) Players who choose not to participate in an event are not penalized in any way. (27) The Burning Tides event followed already-established and playable characters in the League of Legends universe. (28) Riot released the Burning Tides event in story acts in which players essentially picked a side and followed their chosen champion's exploits--through written narrative and special matches--to earn in-game rewards. (29) When Riot released Act III on July 30, 2015, players learned through the written narrative on a companion website outside of the regular game that the champion Gangplank was dead. (30) In order to keep the game consistent with the event's storyline, Riot removed Gangplank from the game completely, including from those players who did not participate in the event. (31)

Many players took to the League of Legends forums to discuss their dissatisfaction with Riot's removal of the character. (32) One player even indicated that he had just purchased a skin for Gangplank two days prior to Gangplank's removal, and that had he known the champion would no longer be available for play, he would not have spent the money on the champion. (33) When some players asked for refunds for either the champion himself, or the various skins--that could only be purchased with real money via Riot Points--Riot responded that there would be no refunds. (34) However, on August 3, Gangplank was returned to the game when players learned in the Epilogue that he was never actually dead. (35)

Although the champion Gangplank was removed from play, and really the entire game server, only for about a week, the Burning Tides event elicited a strong reaction from the player base. (36) For the first time in League of Legends, an item that players had purchased was taken from gameplay without a refund. (37) At least on League of Legends forums, no one seemed to question Riot's legal right to remove the champion without compensation, (38) but the question this Note seeks to answer is whether Riot should have the legal right to unilaterally remove content purchased with real money through microtransactions. Although the issue in League of Legends' case is moot because Gangplank ultimately returned to gameplay, the Burning Tides event helps demonstrate the underlying issue--that game developer companies have complete, unilateral control over access to content purchased through microtransactions.

Part I of this Note answers the question of whether Riot had the legal right to remove the champion in the first place. This Part looks into the history of EULAs, detailing how they have been applied in software cases generally over the past decade and identifying how a court would likely rule if a disgruntled player during the Burning Tides event had tried to bring action against Riot for the removal of Gangplank.

The following two Parts address whether Riot should have the right to unilaterally remove in-game content, like Gangplank. This Note argues that Riot should not have this unilateral power, at least in League of Legends' unique and specific instance. This Note acknowledges that Riot maintains ownership of all of its content, whether the content was purchased with real money or in-game currency. The central argument of this Note regarding the balance of game developer and player rights relies not on intellectual property theories of authorship or ownership, but instead on contract theories. Part II specifically focuses on whether average League of Legends players, based on the EULA, could predict that they might lose the in-game content they purchased through microtransactions. The underlying argument that this Part considers is that no player would reasonably expect to lose access to content purchased through microtransactions. Therefore, Part II begins the discussion of the issue with regards to the common-law reasonable expectations doctrine. This Part starts with an explanation of how the doctrine developed, then it discusses how the doctrine has been used generally in the past, and finally it concludes with why the doctrine should be applied in cases involving microtransactions, especially in the case of League of Legends.

Part III then analyzes the player's rights in microtransaction content through the use of reliance theory, specifically following the principles of promissory estoppel. This Part operates as an alternative theory to the reasonable expectations doctrine in how to balance a player's rights with the rights of the game developer. Although both theories complement each other, this Note argues that either theory could be used by a court when striking the balance between the rights of a creator (the game developer) and the rights of a consumer (the player). Following a similar structure as Part II, Part III explains the development of reliance theory and what kinds of cases it has been applied to in the past and then concludes with an argument as to why reliance damages could provide an adequate remedy regarding purchases via microtransactions.

Through the exploration of the rationale behind the reasonable expectations doctrine and reliance theory, this Note ultimately concludes that under either theory EULAs should...