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For the purposes of this question, let's assume an online retailer who sells digitally distributed video games, based in California, selling to a consumer in New York. The NY based consumer is using a Windows PC that is not unusual in its hardware or configuration.

My understanding is that a seller can't sell goods that they know aren't fit for their intended purpose. For example, this is in the UCC:

        § 2-315. Implied Warranty: Fitness for Particular Purpose.
    Where the seller at the time of contracting has reason to know any 
particular purpose for which the goods are required and that the buyer
is relying on the seller's skill or judgment to select or furnish
suitable goods, there is unless excluded or modified under the next
section an implied warranty that the goods shall be fit for such purpose.

§2-316 talks about exclusions or modifications and says they must be conspicuous. For this question let's assume that the seller doesn't have any specific text regarding this in their terms of sale or in the terms of service for their online storefront.

My understanding of this is that a particular good has to be able to do what goods of its type do. For example, a retailer can't sell a shovel made of metal so weak that it bends instead of digging into the ground.

How does this apply to products whose purpose is to entertain? In particular I'm looking for information on video games.

I have three points I'm curious about, and wondering if the retailer is violating the UCC (or any other laws) in any of these cases:

  1. Some people like some games while others dislike them. Would different people have different abilities to claim that a retailer had violated the law based on personal tastes?

  2. Some games are universally disliked. They receive nearly universally bad reviews by both consumers and professional reviewers, with very few positive reviews and nearly nobody praising the game. The game is simply not enjoyable in any way for the vast majority of people.

  3. The game simply will not run on the consumer's PC. Others are able to get it to run, but the particular consumer mentioned in the first paragraph cannot get the game to run.

  • 1
    I would make sure, as a threshold, that the UCC applies. It can be confusing in software contexts because it has sometimes been held that software is a service (the programmer wrote it for you as a service), and sometimes it is a product (a good that you buy). I believe this varies by jurisdiction, but haven't looked into it for a very long time. – David Dec 23 '16 at 22:06
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Entertainment value

The implied warranty does not apply to aesthetic judgements about a product's entertainment value. Video games are, in this respect, art.1 The exact same analysis applies to movies and vinyls that you buy, and musicals that you attend. If you happen to not like them, so be it. The purpose was not to entertain a particular person, or anybody. The purpose was to communicate a particular expression.

Usability

If the provider has not disclaimed fitness for a particular purpose or merchantability, then the implied warranties of UCC 2-315 are in effect. A typical disclaimer says (this is from Valve):

... without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or noninfringement.


1. Video games have been held to be art in the First Amendment context also: Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011).

  • Just to elaborate on a point here: in many jurisdictions and under many types of scenarios implied warranties of merchantability can't be effectively disclaimed. Which is why you also see the ubiquitous clauses that begin something like "The law in your jurisdiction may not allow for some of these rights to be waived..." But, more on topic, yeah, I would be surprised if there was any significant case law out there approving the application of the implied warranty of merchantability to something as amorphous & subjective as the quality of a video game. – mostlyinformed Dec 24 '16 at 10:29
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This is an aesthetic judgment as opposed to a software judgment. The UCC applies when you're talking about something like, is this game going to run on a computer that has a certain video card when it claims on the label that it will work with that video card, etc. If it's not going to run on any sort of computer or console, then it's not merchantable. That's what the implied fitness for a particular purpose is talking about. If Gabe N sold a game that didn't run on Steam, that would fail the test. If a VR distributor sold a game that wasn't compatible with VR, that would fail the test. Just because a low-quality game doesn't run on a certain computer doesn't mean it won't run on another computer. It won't look very good, but it'll still run.

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