Deceptive Advertising? Not Quite

In response to this editorial posted at GameStooge, I laughed. I truly hope that jonahfalcon was writing it more for comic content than for actual legal content.

Is the Guitar Hero II box deceptive advertising? No. I don’t have my copy in front of me for the exact wording, but indicating that certain songs are included would not be deceptive, even though you cannot play them from minute one. In fact, if it were considered deceptive, then any game which says “## Levels Included!” would be guilty of a similar deceptive practice. I am sure someone, reading an article such as this, will expend the resources just to test such on box advertising in court, and I can only assume the judge hearing said action will quickly dispose of it.

It is the Federal Trade Commission that deals with deceptive advertising. They define a deceptive ad as one that “contains a statement – or omits information – that:

  • is likely to mislead consumers acting reasonably under the circumstances; and
  • is “material” – that is, important to a consumer’s decision to buy or use the product.”

In making that determination, the FTC follows these steps:

  • The FTC looks at the ad from the point of view of the “reasonable consumer” – the typical person looking at the ad. Rather than focusing on certain words, the FTC looks at the ad in context – words, phrases, and pictures -to determine what it conveys to consumers.

  • The FTC looks at both “express” and “implied” claims. An express claim is literally made in the ad. For example, “ABC Mouthwash prevents colds” is an express claim that the product will prevent colds. An implied claim is one made indirectly or by inference. “ABC Mouthwash kills the germs that cause colds” contains an implied claim that the product will prevent colds. Although the ad doesn’t literally say that the product prevents colds, it would be reasonable for a consumer to conclude from the statement “kills the germs that cause colds” that the product will prevent colds. Under the law, advertisers must have proof to back up express and implied claims that consumers take from an ad.

  • The FTC looks at what the ad does not say – that is, if the failure to include information leaves consumers with a misimpression about the product. For example, if a company advertised a collection of books, the ad would be deceptive if it did not disclose that consumers actually would receive abridged versions of the books.

  • The FTC looks at whether the claim would be “material” – that is, important to a consumer’s decision to buy or use the product. Examples of material claims are representations about a product’s performance, features, safety, price, or effectiveness.

  • The FTC looks at whether the advertiser has sufficient evidence to support the claims in the ad. The law requires that advertisers have proof before the ad runs.


Applying these guidelines, it seems that a reasonable consumer of video games will know that more content becomes available as the game is played. In fact, the vast majority of games follow this model, be it through levels, items that expand the playable area (i.e. Metroid or Zelda), or an accomplishment-unlocking system (i.e. Guitar Hero). In fact, the accomplishment-unlocking system has been a staple of the racing game for quite some time, usually additional tracks and cars, as well as many iterations of extreme sports games like Tony Hawk or SSX.

Even if an ordinary consumer might be misled, the statement itself is still not material. Most consumers who buy a game are willing to play it, so most consumers will make the content available. It took me less than 6 hours of actual play time to have every song available in Guitar Hero II. Even if you could only play an hour a day, the content would be available in less than a week. And the unlocking scheme doesn’t mean the content is not there, just not accessible.

Video games do not easily compare to other products or forms of entertainment. Analyzing them typically takes some new thinking and needs to avoid the kind of analogies used in the GameStooge article. I continue to assume, though, that the article was written for humor rather than content, and in that regard the author was quite successful.

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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

35 Responses to Deceptive Advertising? Not Quite

  1. Justin says:

    Several serious holes in your logic:

    1) You say “reasonable consumer of video games” that is not accurate. It is simply “reasonable consumer,” much different. In practice that means your average 36 year old female with a high school diploma or 63 year old retired male. The kind of people on a jury.

    2) It is not the FTC only that deals with deceptive advertising. Most states have their own laws describing defining a deceptive trade practice. In my state of Texas it is chapter 17 of the Business and Commerce Code. That law is much different than FTC law.

    3) You say “if an ordinary consumer might be misled, the statement itself is still not material. Most consumers who buy a game are willing to play it, so most consumers will make the content available.” This statement, while true, has no place in your conversation of what the law is. What does ‘most’ have to do with it? Nothing. It takes just one. One 36 year old woman to buy the game for her 4 year old son who just loves Hangar 18 (its his favorite song…thats all he wants to play!). Box/advertisement/promotional material says it has that song. Oh but wait you have to play a bunch of other songs (I doubt many 4 year olds could ever get past even the first level)…to get that song. That was a waste, of money and misleading to that woman who bought the game relying, to her detriment, on the fact that she would be able to play Hangar 18. She is the one who sues.

    And before you say she wouldn’t because of the huge legal fees…you are wrong, if a case is even half decent many state’s lawyers will take a consumer case, because like in Texas deceptive trade practice law, the defendant has to pay legal fees on top of possible economic, mental anguish, and exemplary damages, AND pretrial interest, if they refuse to settle and lose.

    I am not saying you are wrong, just that your reasoning is incomplete if not flawed.

  2. Scott says:


    Thanks for posting the full version of what I had summarized in the comments to the Game Stooge article. Nobody wants to read something that long in a comments section, but it helps to know exactly what the law is.

    That said, though, who is the “reasonable consumer?” Is it an 8 year old? 16 year old? 28 year old? or 50 year old? The argument in the Game Stooge article could very likely be valid for very young and very old (relatively) consumers of video games.

    I checked the game box and I didn’t see one reference to unlocking game content. That certainly doesn’t mislead me, but I have no doubt it would mislead many non-gamers who are consumers of the game within the definition of the FTC.

    Also, you can’t dispose of the argument by saying simply that even if the box is misleading, it’s not material because all it takes is a few hours of play to unlock it.

    1) That assumes everyone has the requisite skill level necessary to unlock the content; 2) You never know what a judge will think (especially one who is not familiar with games) when faced with the fact that the box reads “over 70 jaw dropping tracks” but only 30 or so are playable immediately. Don’t think for a second that there aren’t a thousand judges out there who will look at this no differently than they do the CDs they buy.

    My personal opinion is that the arguments in the Game Stooge article would lose in court (and I certainly don’t agree with them from a gamer’s perspective and would be mad as hell if someone actually filed a lawsuit). But I don’t think this is nearly as lop-sided a legal argument as some are making it out to be. Cases like this survive (and win) in court all the time.

  3. Scott says:

    Wow, it looks like justin and I are sharing the same brain – he’s just 4 minutes ahead of me.

  4. Justin says:

    Gotta be quick ’round here Scott. I am surprised there are not more comments here. Joystiq linked to this article and has over 70 comments last I checked.

  5. Scott says:

    Yeah, well, what do you expect? Very few people want to read the actual law on the issue. They just want to give their own opinion on whether it’s illegal – of course they base their opinion on nothing, but that doesn’t matter to them.

    Legal issues like this would be so much more fun if people would read the law like Mark gave and then make their own arguments based on the law. That’s where you’d start seeing some good discussion.

  6. Justin,

    1) In that case, “of video games” was just describing the product purchased, not the purchaser. In retrospect, I could have worded it better.

    2) As I practice in Texas, I am pretty familiar with the DTPA. I used the FTC as a baseline because it’s consistent nationwide. The Texas DTPA section on deceptive advertising is Section 17.12. The relevant text being “No person may
    disseminate a statement he knows materially misrepresents the cost
    or character of tangible personal property, a security, service, or
    anything he may offer for the purpose of
    (1) selling, contracting to sell, otherwise disposing
    of, or contracting to dispose of the tangible personal property,
    security, service, or anything he may offer; or
    (2) inducing a person to contract with regard to the
    tangible personal property, security, service, or anything he may

    While the text may induce someone to purchase, it’s still not a material misrepresentation. The songs are there.

    3) You’re negating a reasonable (or ordinary) consumer for a unique, special circumstance consumer. Remember, no matter who brings the action, they are judged under the standard of a reasonable consumer. That is, would a reasonable consumer be misled by the box? Evidence of someone actually being misled is only persuasive, not binding.

    And she might sue, but it would never get to trial. 95% of cases or more settle or are dismissed.

  7. Justin says:

    Who said trial? Jury verdict, settlement…who cares…either is a win for the consumer and a loss for your point that the original argument that it was deceptive was only humurous?

    Just agree that there is a circumstance in which, looking at the law, you could have a case that there was a deceptive trade practice. Looking at your comments now tells me only stubborness will keep you from admitting that a case like the one I suggested could get past summary judgment.

    More likely of course as you suggest the game company would just accept the initial demand letter rather than racking up attorney’s fees for the other side. In which, again, its a win for the consumer.

    Disclaimer: I am only saying how I interpret the law; not that it makes sense for it to be that way. But maybe thats why they always include an unlock code for levels…and we just never knew it. Us damn lawyers.

  8. John says:

    Well, since her instant case by itself is not determinative, she’d have to bring evidence that a reasonable consumer would be misled. If she doesn’t bring a large argument than her own self, then it’ll get tossed. Since almost every video game ever is based on an ‘unlocking’ mechanic, a reasonable consumer would know that, when buying a video game, not all content would be available from the first time you turn on the game. I doubt that the industry would allow this case to settle – it would open up just about every single company in the industry to the same type of lawsuit. It would go to trial, and I highly doubt that any court will come to the conclusion that a video game must have all its content available from purchase.

  9. Ben says:

    My instinct on the issue is that the arguments by analogy are quite compelling from a policy standpoint. After all, when you buy a movie it has scenes that you cannot witness until you have watched the preceding scenes (or searched through the contents which requires work and may not be possible for some).

    Why would we imply a term that everything is available immediately or instantly when that is not the standard practice at all in the video game industry and is probably not the understanding with numerous other mediums of content we purchase?

    What does it even mean to argue that content must be instantaneously available from the outset? If I buy a chemisty set with “70 chemicals” and “over a million compounds I could create,” I still have to open the bottles (“Whoa, whoa, no one told me I had to actually open bottles! Those child-proof caps are tough: I call deceptive trade practices on you!”), I still have to mix the chemicals, and I may have to follow detailed directions that are very difficult for some to produce what I am promised I can produce.

  10. Scott says:

    “I highly doubt that any court will come to the conclusion that a video game must have all its content available from purchase.”

    That’s not the issue that would be decided. The issue would be whether it’s misleading to fail to specify on the box what content is immediately available and what content requires “unlocking.”

    “Since almost every video game ever is based on an ‘unlocking’ mechanic, a reasonable consumer would know that, when buying a video game, not all content would be available from the first time you turn on the game.”

    Again, the “reasonable consumer” includes a large group of people who do NOT play video games. So, they don’t know what is normal for a game.

  11. Martijn says:

    So, does this mean that (in America) one can sue any company, and even if you’re just making things up, you cost them money for your bulldroppings?

  12. Scott says:

    “So, does this mean that (in America) one can sue any company, and even if you’re just making things up, you cost them money for your bulldroppings?”

    No, it means that in America (and every other modern country), it costs money to defend a claim. Companies balance the costs of defending the claim with the costs of settling it. If they want to get out quickly and cheaply, they settle. If they want to fight it, they defend the claim in court. The company doesn’t have to pay anyone except their attorneys if they want to take the case to trial.

    Frankly, I wish more companies would take a stand against “bulldropping” cases. But it’s just too costly and juries are just too unpredictable to take the risk usually.

  13. Thomas says:

    Enter B, Y, O, R, O, Y, R, Y, R, Y, R, Y, R, Y, R, Y, R, Y (the letters correspond to the fret button colors) at the title screen to unlock everything. I assume that this could defeat any potential false advertising claim summarily.

    Even games that don’t have cheat codes like that have debug menus, and while I’m sure developers would prefer not to give the keys to those out, if ever faced with a lawsuit a publisher could just tell the plaintiffs how to access the debug menu to get what she wants unlocked.

  14. Andy says:

    There are two things I’d like to discuss here (as a technology scholar with little knowledge of law).

    1) I’m more familiar with sales practices in PC gaming than in console gaming. Do console gaming companies claim to sell a physical artifact? Or do they, like their PC gaming counterparts, sell a license that happens to come with the software on media? If it is the latter, I would think any claim would be a lost cause from the start.

    2) There is an abundance of research that shows that the challenge of a game is important to the player’s enjoyment. Anecdotally, many gamers confirm this notion by quickly getting bored with “god mode” settings compared to the standard game. Could a gaming company make a claim that they are marketing the enjoyment that comes from playing the game (rather than some piece of media) and that they happen to know best how to get there? Similarly, could a company claim that their brand would be hurt by selling the game in a format that ended up with negative word-of-mouth due to low challenge and subsequent low enjoyment?

  15. Aaron says:

    I’m not a lawyer, so this is a completely ignorant question, but couldn’t someone argue that Guitar Hero is closer to being a karaoke machine than a traditional video game? If that were the case, then couldn’t someone make a good argument that they were materially misled by the suggestion that they could buy the silly thing and then play the songs that were included?

  16. Jesse says:

    I think taht the main problem is not that you have to unlock the content, but that you cannot unlock all of the content unless you are proven to be a stellar game player.

    I personally have never been gifted at playing PC and console games. I enjoy them greatly, but have never been the person who storms through on Nightmare difficulty in a mere hours.

    For me as a reasonable consumer, those songs ARE missing because I do not possess the talent to unlock them.

    I could of course use the internet to look for a cheat code to play these songs, but the concept of a Reasonable Consumer includes the people I talk to every day who don’t grasp the concept of “click and drag” and when you ask them to launch a web browser they say things like “I’m not some tech savvy person, you’re going to have to talk me through this…” (btw, I work in technical support, the best way to get a feel for the technological intelligence of the average consumer)

    Too often we look at the world from our little bubble and don’t realize that a vast majority of the people who are out there are no where near as capable as we are when it comes to technology.

    Then we come to the type of game that GH2 is. It is a social game, much like Dance Dance Revolution. This is evidenced in the up coming “rock band” title that expands on the GH concept. In DDR you do not have to be a master at the game in order to get 100% of the content, and almost all of it is available from the start. DDR is the game a Reasonable Consumer is going to be seeing as comparable to GH2, not Mario Brothers.

    Contrary to the comments that “video games are video games” and “this is how video games work” I am sure one would not have to look very far to find video games that display a different pattern. The granddaddy of video games, Pong, contained no unlock-able content.

    To say that all video games work this way is honestly a cop out and an excuse for elitism. Not everyone is a gaming god like you is all I have to say to those people. When it comes down to reality as it pertains to the Reasonable Consumer, some of the content in GH2 is very much not there, if not so much in a physical way, but definitely so in a tangible way.

    I own Windows Vista, the installation media includes everything for the ultimate edition, however I do not have access to the ultimate edition because my license is for Home Premium. Despite the fact that I physically have that data on my install media does not automatically guarantee that I have tangible access to it. I have to purchase that right from MS. While you do not have to purchase the unlocked content for GH2, it is every bit as unaccessible to the Reasonable Consumer who does not possess the talent to play through the entire game in “super stud” mode or whatever specific difficulty setting it requires. Neither do these people automatically possess the knowledge to obtain a cheat code to unlock this content.

    Should someone sue? Hell no, it would be another example of the failure that is our judicial system… is this deceptive packaging? Definitely, at least to a large majority of consumers who could possibly buy this product onthe premise of being able to play xx, xxx, xxx songs that are listed on the packaging (with the intent of persuading consumers to purchase the game).

  17. Thomas says:

    (Different “Thomas” then the one who posted above)

    I know that this blog focuses on the legal aspect of gaming and I, unfortunately, can’t comment on that. I can, however, comment as an adult gamer who considers interactive entertainment his primary pastime.

    As a layman I would be very surprised to see a deceptive advertising lawsuit over this type of game. The established precedent is for content to become available via a progression through play spaces of generally increasing difficulty. It would be very difficult to argue that a reasonable consumer is unaware of that progression.

    I’m very nearly certain that the point of contention is over the changing definition of a “gamer.” Game publishers and developers are looking to expand the genre and in order to do this need to court casual gamers. This bothers the hard core gamers because they see the exclusivity of their beloved medium slipping away. Games are no longer the domain of the basement-dwelling cliche – now grandparents are Wii bowling, little kids are DDRing and (most frustratingly for the “hard core” gamer set) frat boys are getting their Madden on. This movement against the ages-old “unlocking” method of content acquisition is another front in the battle to retain dominion over the genre – unfortunately for most gamers they are powerless to act because the control lies in the hands of the developers. That’s why you see explosions on message boards.

    I’ve been through this before. Anyone remember the “old school” FF-ers battling against the “new breed” of gamers courted by the PS1 and FF7? This is the same thing again.

    Personally I don’t see the point of unlockable content anymore. It used to be a source of “pride,” but as I’ve grown older I’ve been able to put that kind of thing in context. Do I still tell people that I managed to beat the original Contra without using the Konami code? Sure, I’ll tell anyone who’ll listen. Am I going to attempt that feat again today? No, no more then I would attempt to match my high-school time for the mile. At the same time I still enjoy running, much like I still enjoy gunning through faceless opponents in the shooter du jour.

    A game like GH2 should be nearly completely unlocked because it doesn’t need the unlocking mechanic in order to be successful – the gameplay itself is reward enough. Games that need unlockables are designed in such a way to provide replay value where none exists and to buttress unrewarding gameplay. In that sense, it’s a vestigial component from a time when games needed to create a time investment that matched their high purchase price. At the same time, its value lies in that very historical significance and old school die-hards are not wrong in their desire to retain that piece of the past.

    I just don’t think it belongs in games like GH2.

    Briefly, I want to comment on the difficulty aspect. I have a book nearby called “Foucault’s Pendulum” by Umberto Eco. It is a thick, difficult book. I’m an intelligent man and yet I find myself frequently going to a dictionary to look up words or checking online resources to understand references. Other readers would not do that and would instead give up on the book. Still other readers just won’t have the capacity to understand the book or to understand it on the same level. Does that mean that the blurb on the back is deceptive? No, of course not. By the same token you cannot fault a developer for making a game that some people do not have the skill to complete. I will get more out of a game/book/movie then some people and some people will get more out of a game/book/movie then I. That’s just how things work and to suggest otherwise would set a dangerous precedent.


  18. T.J. says:

    This is not about locked content or level progression in general, I don’t think. This is specifically about locked songs that are recognizable and desirable by consumers who read the advertising on the game box, regardless of whether or not they understand how the game works.

    I’ve read a number of arguments (some right here) that compare locked songs in GH2 to higher levels in single-player platformer, or hidden characters in fighting games, or locked video game content in general. However, I did not read the article as saying all unlockable content used in advertising is deceptive. There is an important difference between advertising locked songs and advertising other sorts of locked content.

    There is no way for consumers to have any first-hand understanding of a higher level in Super Mario Bros. without playing Super Mario Bros. The level only exists in the game, and it is only recognizable as a part of the game. Pretty much the same goes for a locked character in a fighting game.

    The songs in GH2 are different. These songs exist prior to and independently from the GH franchise. It is possible to recognize and desire those songs without ever having any experience with GH or gaming in general. In fact, this renown is probably exactly why they are listed on the package.

    The primary purpose of GH is to let people pretend they are playing guitar along to their favorite songs. Unlike a level in a platform game or a character in a fighting game, consumers recognize their favorite songs independently of the game. The fact that the GH games feature songs made popular outside of the game is probably its biggest selling point.

    I think it is well within reason that a non-gamer Spinal Tap fan might sample the GH2 demo kiosk at his local Best Buy, see the “Tonight I’m Gonna Rock You Tonight” song listed on the package, purchase the game and a 360, and then feel a little mislead when he got home and found the song was initially unavailable.

  19. Thomas says:

    To T.J.:

    I disagree with you. The songs in GH2 are the levels. The music itself creates the landscape for a platformer. Sure, you’re not running around collecting rings or helping a portly plumber dodge fireballs inexplicably launched from the gaping maws of plant life, but you are “hopping” from location to location. The thing is, in the case of GH2 each note or chord is a platform that you must reach in a timely fashion. The fact that it’s abstracted and then presented in the form of a music game doesn’t change the core principle.

    The songs themselves create the backdrop for the gameplay and purchasing GH2 for a specific song is paramount to purchasing a different game in order to play a specific level that’s advertised via a screenshot on the back of the box.

    Whether or not a player has previous experience with the songs featured does not effect the underlying mechanics of the game. If a player wants to rock out to a well known track they can purchase a CD and go to town with that eternal classic, the air guitar. I have done so myself on many occasions. If, however, a player wants to play a certain song on GH2 they are choosing to embrace a much more specific experience where the developers have strong authorial control over more aspects of the content’s consumption. In the context of that control specific songs were chosen to become the inspiration for a game space that the player must progress through.

    Fundamentally yes, the songs are the levels.

    At the same time, though, I agree that they should not be locked. I understand the desire of a developer to progress the player through a story, however I feel that the raison d’etre of games like GH2 precludes featuring mostly unlockable content. As we’ve seen in the response to an article that, at this point, I can hardly remember reading players are purchasing GH2 in order to enjoy the game in a non-traditional way. Developers are going to have understand that.

    Here’s the ideal scenario: First, feature gameplay that’s enjoyable enough in its own right to be worth the cost of the product. GH2 has, I believe, done this. Second, allow the player to access the majority of the content right off the bat in a sandbox way. Third, present a story that’s engrossing enough that the player will want to work through it even though there will not be unlockable rewards.


  20. landon says:

    Unfortunately, I can only speak as a gamer, not as a lawyer, but I will try to be coherent.

    Much of the contention here seems to stem from the debate over whether or not unlockable content is even a good business practice. However, the issue remains: Like it or not, some songs must be unlocked, and these songs are included in the track count on the box.

    We can make endless analogies to movies (must watch minute one before minute two) or Tootsie-Roll Pops (hard candy, THEN chocolate) or anything else we please, but a reasonable consumer understands basic chronology and foods inside of other foods, respectively.

    What we need to keep in mind is that a “reasonable consumer” has different expectations for different types of media. For instance, with a cassette tape, one MUST advance through the other songs before listening to track X. On vinyl, however, one may (with sufficient knowledge) simply place the needle in the desired location at any time.

    Interactive media is still defining itself in these terms, making current precedent hugely important. An average consumer (not average gamer) would be most likely, I think, to play: sports games, racing games, shooters, and fighting games. Racing games are perhaps (strangely) the best analogy. Along with sports games, they also contain content (in this case cars) recognizable from outside of the game itself. However, in nearly every racing game I have played, only a bare handful of these cars are available on launch. I loved the car list for Gran Turismo 3, but had to spend quite some time before I got my hands on the beautiful Aston Martin. This is something that (as a racing gamer) I fully expected to have to do. Sports games are the counter argument, with all teams typically available initially, but as a consumer of video games, I wouldn’t expect this to be the case with all games, much as I wouldn’t expect my real-life Volvo to behave like that Aston Martin.

    We are assuming that a reasonable consumer would know nothing about gaming at all, but that would mean that someone with ZERO interactive media experience would shell out some $400-$500 on a whim to play Hanger 18. I seriously doubt that people making a large investment without even trying to discern the nature of the product would be considered reasonable.

    When albums started coming out on cassette, did you hear anyone say, “since I had never used one of these, I had no idea I couldn’t get to my favorite song instantaneously?” I know I didn’t.

    Cassettes have never contained a label warning consumers of this, and this was never questioned ONCE.

    I feel that it will work much the same for gaming. Good or bad, countless games feature an unlocking mechanism, levels, or hidden content. Much as everything from constitutionality to El Paso’s water rights are based on precedent, I think that as a reasonable consumer, one should be expected to have at least a general knowledge of how the medium has worked for the last two decades.

  21. Pryde2000 says:

    My question is how is the phrase, “More than 70 songs included,” deceptive or misleading? If you look at the game in question the tracks are right there on the disc, it’s not as though they made claims that a particular song was available when in actuality it was not.

    Further more, the phrase in question neither confirms nor denies that all the songs are available from the start or need to be unlocked. With that in mind you could just as easily make the claim that the ad was misleading because you purchased the game expecting a system of progression but had all the content handed to you instead. While that argument might sound incredibly ridiculous is it any less credible than the first? After all there are plenty of examples of games with content that must be unlocked through a system of progression.

  22. Pryde2000 says:

    If you ask me the word “reasonable” is quite circumstantial. There’s really no one way to define just exactly what “reasonable” is. Also, could you really consider yourself a “reasonable” consumer had you purchased a product you knew nothing about, having no idea what to expect? Personally, I think a “reasonable consumer” would have to be someone who has done their homework, but that’s just me.

  23. Scott says:


    “the phrase in question neither confirms nor denies that all the songs are available from the start or need to be unlocked. “

    I know you don’t want to hear this, but it’s exactly that ambiguity/vagueness that you pointed out that leads to deceptive advertising lawsuits. You’ve already made a case for someone’s lawsuit.

    You recognize that there is an ambiguity. But you think that, as a result, everyone should therefore assume that the game doesn’t give you immediate access to all the songs.

    Trust me, there are just as many “reasonable” consumers who think just the opposite. I agree that people should know what they’re buying, but if you charged every consumer with being informed about every purchase they make, you would see countless consumers being injured (physically, mentally, emotionally, economically, etc.) with no recourse. The average consumer simply isn’t smart enough to be informed about every purchase he or she makes, and they shouldn’t have to be. Consumer protection laws were enacted for this very reason.

    In fact, the very notion of deceptive advertising implies that a consumer was attempting to become knowledgeable about a product and was “mis-informed” about it by the advertiser.

  24. Keith says:

    I’m just curious, if all advertising is judged as to whether it is “misleading” to the average Joe, what about advertising that is specifically directed at an audience with specialized knowledge. Say, for instance, I sell engineering widgets to a widget engineer, and claim that it increases widget confabulation by 25%—this might make perfect sense to people in the widget business, but the average Joe seems like he would misconstrue the statement to mean something else entirely from what it means to the engineer. (Joe thinks it has something to do with widget performance, whereas the savvy engineer knows that it really refers to the rate at which old widgets can be recycled.) So if you can’t assume a background knowledge in the standard practices of video games for the average consumer of GH2 (which, if you did, would make the question moot), then how could any specialized advertising exist? Couldn’t the game developers simply say that they’re advertising to a smaller, gamer demographic with background knowledge of how console games generally work?

  25. Pryde2000 says:

    “I know you don’t want to hear this, but it’s exactly that ambiguity/vagueness that you pointed out that leads to deceptive advertising lawsuits. You’ve already made a case for someone’s lawsuit.”

    But where does it stop? I could easily come up with a thousand different arguments of false advertising of any game and/or product just based off of what the ad doesn’t say. It’s impossible to inform the consumer of every single detail concerning the game in such a small space. So, that leaves the consumer in a position where they have to inform themselves. And honestly, is it really that reasonable to hold game developers at fault for the consumer’s inability to ask a few simple questions at the checkout counter?

  26. Scott says:


    You’re absolutely right, unfortunately. And that’s why we see disclaimers and fine print everwhere in advertisements. This unlockable content controversy is just one lawsuit away from adding another sentence to the back of every video game box.

    As I’ve said numerous times, I’d be angry if someone filed a lawsuit over this. Just because you may have a claim doesn’t mean you should file it. That’s what separates reasonable people from greedy, want-to-get-something-for-nothing people.

    When I was looking up cases on deceptive advertising earlier this week, I found a Tennessee (or maybe Kentucky) appellate case where Anheuser Busch was being sued for deceptive advertising because 1) beer advertisements falsely suggest that life is more enjoyable when using alcohol, and 2) beer advertisements don’t show many negative consequences of alcohol consumption (e.g. drunk driving, health problems, etc.).

    The court ruled in favor of Anheuser Busch but it goes to show just how little you need to make a claim. It’s so bad that it almost makes the unlockable content issue seem like a winner.

  27. Scott says:


    That’s an excellent question. I’m almost certain that a “reasonable consumer” doesn’t mean all consumers. It means a reasonable consumer of the product in question. Which means that in your engineering widget hypothetical, the advertisements would need to be sufficiently informative as to not mislead a reasonable consumer of that widget. The consumer would be charged with the knowledge inherent in purchasing the widget.

    However, that doesn’t save the video game companies because the reasonable consumer of video games is not always the end user. A large percentage of the group of consumers that purchase these games are not knowledgeable of how console games generally work.

    Video game companies are advertising to everyone from children to the elderly. This can certainly be seen by Nintendo’s marketing campaign of trying to bring non-gamers into the gaming universe with the Wii. There are lots of new gamers picking up the controller who do not have the benefit of 20, 10, or even 1 year of video game experience.

    But you don’t have to be an end user to be protected. Make no mistake, a 70 year old grandparent who has never even seen a video game being played is purchasing games for their grand-children – and consumer protection laws protect them as the buyer, not the user.

    I think it will be really interesting to see if RedOctane or other developers start clearly noting the available content on the boxes.

    That said, I’ll still never complain and will never use a cheat code. I love unlockable content.

  28. Thomas says:


    I think that Kieth hit the nail on the head.

    It’s going to end up being a question of the “reasonable consumer” versus the “exceptional consumer.” Although one could infer from the advertising that all of the songs are immediately available, I would argue that such a consumer would be “exceptional.” It is unreasonable to assume that a consumer of video games has no prior knowledge of the medium.


  29. Brett says:

    Is our consumer industry really so lazy as to not be ok with challenging themselves? I certainly didn’t have the skill to play all the songs on Guitar Hero when I bought the game.
    Couldn’t I have, just as easily, spent money to go to a culinary institute (or any institution where merely paying tuition is means enough to get in, but a culinary institute in this hypothetical) and then sue because I’m not able to make all of the dishes the very day I sign up for classes because I don’t possess the skills, even though they promise I’ll be able to make Duck L’Orange if I go to this school?

    Maybe that seems far-fetched, but does the point make sense?

    Yes, you might have to challenge yourself to play this game. No, you may not be able to play everything all at once.

    BUT despite that, wouldn’t a “reasonable consumer” be reasonable enough to inquire about the nature, content, and other aspects of the product they are going to spend $40-50 dollars on?

  30. Scott says:


    I know we’re at the point of simple disagreement, but there is no way in hell that any judge would consider the buyer of a video game to be an “exceptional” consumer of the product. There is nothing specialized or highly technical about video game purchasing.

    It is simply unreasonable to suggest that everybody who buys a video game has prior knowledge of the video game industry. Are you really suggesting that all grandparents and parents who buy a video game have knowledge of the history of video games? Talk to your parents, talk to your grandparents, even talk to some of your non-gamer friends. At least one of them will be unaware of unlockable content and, again, at least one of them will be a purchaser of video games sometime in the future.

  31. klehman says:

    I am a professional musician, and do not yet own the GH2 for xbox 360, but I do want it.. Not because I can play xxx song, but because the concept is brilliant.

    If someone pays 90 bucks for the game and 400 for an XBOX 360 just to play ONE SONG, then they should be kicked in the butt.

    Video games are supposed to be challenging. If there is no motivation towards completing the game (such as unlockable content) then the game tends to get boring real fast.

    It took me several years of plunking around on my guitar before I could play “Breaking the Law” or any song for that matter. Even though I bought the guitar, it did not guarantee my ability to play songs… for that I had to practice!

    My point is, I think the game developers have the right to make their game challenging, as well as the right to advertise the prizes you might achieve if you complete the game.

    After all, I have several games that I still have not beat (and have not really tried to) simply because I had little to gain from committing the time to something with little reward.

    The term GAME implies CHALLENGE. I think we need to consider THAT when we mention the term “reasonable consumer of video games”.

    I wonder if anyone has ever sued the TV game show “Wheel of Fortune” because they did not win the car that was advertised?? The answer is NO, because any reasonable person should know they have to excel at the game to get the top prize. Why is this any different?

  32. Thomas says:


    I think that our disagreement is over what we’re arguing about. “Unlockable content” is a peculiarity of our medium and I agree with you that a reasonable consumer might not be aware of it.

    However, the songs in GH2 aren’t unlockable content – they’re the game’s levels. Those levels are made available for replay in other modes as they’re completed in the “career” mode.

    It’s reasonable to assume that a consumer would be aware of linear progression through a game. Level 1 leads to level 2 in a game the same way that chapter 1 leads to chapter 2 and scene 1 leads to scene 2.

    The developers could have said that the game featured all of those songs and not included a multiplayer or practice mode so you would only be able to play certain songs during a certain period of the career mode. They’re levels of a game, not songs on a CD or a jukebox.

    When you go to a movie that’s advertised as “featuring a song by xxx” are you going to claim false advertising because that song isn’t presented in full the moment the movie starts? No, because it’s part of the greater experience.

    You’re buying a complete game experience and a reasonable consumer knows enough about games to understand how you progress through them.


  33. Paranoia says:

    Legalism is inferior to intellect.

  34. Tal says:

    This is probably a little off-topic, but I figured I’d ask anyway…
    One of the Playstation 3’s “features” advertised by Sony is the Playstation Store and the ability to download/purchase new games, demos, movie trailers, etc. But after the European PS3 was released, it turned out that some countries don’t have access to the Playstation Store(I’m not sure which exactly, but at least in Israel this is the case). Now, theoretically, I could connect to the UK store, but I would be:
    a) “Lying” in the registration process.
    b) unable to purchase anything, since foreign credit cards are not accepted as a form of payment.

    So, is this deceptive advertising and can something be done about it?

  35. I am impressed with a number of the comments left on an issue such as this.

    Firstly, as a practicing attorney I will defer to Mark’s expertise, I only have limited education in law as part of my training in business.

    From a marketing standpoint, the rule of thumb is honest and simple. The songs are in the game, therefore saying the songs are in the game is fine. There is a question about whether pointing out gameplay is involved to “unlock” the songs (a term that would likely need to be clarified in a legal brief) creates a deceptive environment.

    Given that this condition is clearly described in the literature included in the game, it is also quickly described as part of game play, it is reasonable to conclude that a reasonable consumer would not be mislead to any significant degree. Just return the product if it was not what you expected (this is traditionally dificult with open software, so a reasonable effort to be informed about the product is another general expectation that would likely be brought up in a court room environment)

    Ultimately, say everyone was right and this was definitvly misleading. There is a question of compensation, namely, what harm was caused by this product to “the reasonable consumer” in the situation at hand. For your specific mother and child example, a refund is the most they could expect as it is very unlikely any major trauma would be caused by this “fraudulent” incident.

    Looking to the current state of GH2, I don’t think there are any concerns over the FTC or any plans to adjust their marketing / packaging strategies.

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