Is there any argument more tired than “are videogames art?” Well, how about: “What is a videogame?” Gamers have been arguing about it since day one, with the debate reemerging every time a new trend hits, like “walking sims,” ARGs, or visual novels, to name just a few. Which is why it’s funny (and maybe a little sad) to see the American justice system fail us once again and punting on a legal definition of a “videogame” during Friday’s ruling on the Epic v Apple trial.
California Judge Yvonne Gonzalez Rogers issued her ruling Friday morning, and while Epic “won” on one important count, the judge agreed with Apple on most counts. The exact legal definition of a videogame, however, was largely left up in the air.
“The Court begins with a definition of a videogame. Unfortunately, no one agrees and neither side introduced evidence of any commonly accepted industry definition,” the judge’s ruling reads. Over the course of the trial, both Epic and Apple argued whether certain aspects of Epic’s Fortnite are a game, as well as whether digital services like Netflix can be considered videogame stores after releasing projects like the choose-your-own-adventure Bandersnatch film. Things degraded far enough that for a brief moment in time, legal experts had to address a semi-naked version of Peely, Fortnite’s sentient banana man.
Judge Rogers did throw a bone to some intentionally vague definition of a videogame later in her ruling, however.
“At a bare minimum, videogames appear to require some level of interactivity or involvement between the player and the medium,” the judge’s ruling states. “In other words, a game requires that a player be able to input some level of a command or choice which is then reflected in the game itself. This gaming definition contrasts to other forms of entertainment, which are often passive forms enjoyed by consumers (film, television, music). Videogames are also generally graphically rendered or animated, as opposed to being recorded live or via motion capture as in films or television. Beyond this minimum, the video gaming market appears highly eclectic and diverse.”
Don’t we know it, Judge Rogers. The industry as a whole, though, could do a little better.
Rogers added that the court “need not reach a conclusive definition of a videogame” because every party already considers Fortnite, a major factor in the lawsuit, a videogame.
One interesting legal implication, as noted by The Verge reporter Adi Robertson: Judge Rogers declined to rule on whether interactive films like Black Mirror: Bandersnatch are videogames. Rogers noted that those examples, plus platforms like Fortnite’s “metaverse” (basically its willingness to create elaborate marketing crossovers with numerous intellectual properties) are merely pointing towards a trend wherein videogames and passive entertainment are beginning to “mesh and overlap.”
If Epic wants to continue its argument that platforms and services like Netflix are being financially harmed by Apple’s App Store rules, it’s possible that this ruling would give companies like Apple the legal grounds to sidestep those arguments. Basically, the fewer examples that Epic could use to demonstrate Apple is maintaining monopolistic power over developers, the less likely it is that Apple will have to deal with the legal ramifications of exerting such widespread control over the app market. If Epic can’t legally assert that Netflix is a videogame storefront, it probably won’t factor into a judge’s ruling.
So there you have it. Has the American legal system failed the people once again or saved us from another round of meaningless fanboy bickering? Frankly, I’m not upset at Judge Rogers’ vague ruling. Videogames have always been an evolving medium, just like any other art form, and its low bar of requiring some interactivity or other personal input is what sets it apart and makes these experiences special.
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