To begin with warranties, they can fall into two categories: express and implied. Most big ticket items have express warranties; that is, the warranty is spelled out in full. Even most game consoles have express warranties in the documentation that accompanies the system. Implied warranties are warranties that apply to all products sold unless an express warranty ways otherwise. Typically, those warranties are things like the implied warranty of merchantability, which means the item is what it is reported to be and reasonably functions as stated.

This dynamic, however, is much more complex in a software context in the present. I remember years ago I returned one of the games in the Legacy of Kain series because of a game-breaking glitch in the PS2 version that corrupted my save in the next to last chapter of the game. The PS2 had no means to patch the game, I found the glitch in the first few days I owned the game, and the store, a GameStop in Austin, TX, had no issue with a return for that reason. The game has changed since then, so to speak.

Today, it's difficult to say whether any game could be released in an inoperable fashion, given that pretty much anything could be patched. You run into an interesting warranty question at that point: when, if ever, could a game be returned on a warranty claim? Certainly, if there as a manufacturing problem with the disc such that it did not work, it would be a warranty issue. However, glitches, even ones that make the game unplayable in some way, are not likely to trigger a warranty claim so long as they are patched in a reasonable amount of time. If anything, it's an indication the company's quality control/quality assurance department needs to be more thorough in testing. Moreover, most software includes a disclaimer as to warranty in the EULA. So long as the physical media isn't faulty, it's likely that disclaimer would prevent recovery for a glitch in the game.

Which brings us to the idea of products liability. In general, the idea here is that the government wants to prevent manufacturers from releasing dangerous products, and as a public safety issue that's a good goal to have. To that end, producers have to create products that are safe as intended and warn people about possible dangers. And in this way, if a game came on a faulty disc that, say, shattered in the drive causing damage to the system or people, the manufacturer would almost certainly be held liable, even with a liability disclaimer.

Software, however, has a long-standing precedent that flaws in the code are not flaws in the product, and they are not held to products liability standards. In fact, most all software license agreements explicitly disclaim liability for damage cause by the software. Take a look at the World of Warcraft EULA, paragraph 11. This is a fairly standard limitation of both liability and warranty. In short, if the game damages your computer, they're not liable. Similarly, if another game causes your Xbox360 to fail or your PS3 hard drive to corrupt all your save files, the manufacturer is not liable. While the clause is all-encompassing, I would still contend that most courts would award recovery if the physical media, that is the CD, was faulty.

Of course, that may not be the way things continue forever. There has been growing talk of changing the landscape of products liability with respect to software. Much of this focuses on malware, but it's a basic certainty that any rules applied to other software will apply equally to games. For now, however, it seems that the rare occasions where disks are actually faulty have been, by and large, addressed by the manufacturers without intervention by the courts or the government, which does put the game industry in a pretty good light when it comes to not overburdening the consumer with the resolution of an error.

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Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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