Would a “reasonable consumer” believe that he or she is entitled to a free DLC offer that is advertised on the original packaging of a game when purchasing a used copy of that game?

The sale of used videogames is big business.  And like most big businesses, it is a target for lawsuits.  Retailer GameStop has recently been hit with several purported class-action lawsuits in which game consumers allege that the company is deceptively selling used videogames through the use of false promises of free additional downloadable content (DLC) upon the purchase of used game titles.  The most recent of such lawsuits is Proctor v. GameStop Corp.  It alleges that GameStop falsely advertised the inclusion of free DLC with the purchase of used copies of at least the following games: “The Saboteur”, “Dragon Age Origins,” “Mass Effect 2,”"Battlefield: Bad Company 2,” “Gears of War 2: Game of the Year Edition,”"NBA Live ’09,” “Rock Band 2,” “AC / DC Live: Rock Band Track Pack,” and “Resident Evil 5: Gold Edition.”  The Proctor complaint also asserts that GameStop’s actions amount to violations of California’s unfair competition and consumer protection laws (such as a claim under the California Consumer’s Remedies Act (CCRA)).

In general, the type of DLC promotions that are the subject of this lawsuit appear on the original packaging of games.  Included with the games are one-time codes that allow purchasers of the game to download the advertised DLC at no additional cost.  Here’s the problem:  If an original purchaser of a game uses the one-time promotional code to download the DLC then later sells his or her copy of the game to GameStop, the code that accompanies that particular copy of the game will no longer be active.  So if GameStop later sells the same copy of the game as a used game, the purchaser of the used game will not be able to download the DLC for free, despite the fact that the original packaging for the game advertises free DLC.  Hence, at issue is whether GameStop can be held liable for “falsely advertising” that the free DLC promotion is available to purchasers of used copies of the games.

While this case involves quite a few key factual and legal issues (including the definition of a “retail sale,” the veracity and content of certain representations made on GameSpot’s website and print advertising, the contents of special editions of certain videogames, the reasonableness of GameSpot’s 7-day return period for used games, etc.), we believe that the most interesting issue presented is whether the alleged “false advertising” for free DLC that is contained on the original packaging of the used games at issue, by itself, is likely to deceive a reasonable consumer.  Assuming that a “reasonable consumer” in this context is defined as a typical consumer for used videogames – that is, a gamer who is somewhat familiar with the industry and its practices – we don’t believe so.  In general, claims brought under the California Consumer Remedies Act and unfair competition law must satisfy the reasonable consumer standard.  In other words, the plaintiff must show that GameSpot’s alleged practice of falsely advertising free DLC with the purchase of used copies of games is likely to deceive members of the public.  We suspect that if you polled such gamers, the majority of those polled would confirm that they understand that the free DLC promotions that are prominently featured on the original packaging for videogames are: (a) one-time offers, (b) typically used by the original owner of the game, and (c) offered by the game’s manufacturer (and not GameStop), and (d) available only on the first sale of the videogames.  For these reasons, we’re not convinced that a reasonable consumer would believe that GameSpot is falsely advertising the inclusion of promotional DLC in connection with its sale of used copies of videogames simply because the original packaging for the game touts free DLC.

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