By: Megan Haugh

On May 6, 2020, Epic Games announced Fortnite had over 350 million registered players.[1]  Like Minecraft (a video game played monthly by 126 million people),[2] Fortnite is a household name.[3]  Fortnite, similar to Suzanne Collins’s The Hunger Games, is a game of survival.[4]  Fortnite players gather resources, create tools or weapons, and fight to stay alive.[5]  A popular feature in Fortnite—and other mainstream video games—is the “loot box.”[6]  In 2019, the University of York reviewed the most popular video games on Steam (an online video game retailer) and found that seventy-one percent contained these loot boxes.[7]  While today’s popular video games (such as the FIFA franchise, Fortnite, and Overwatch) widely use loot boxes, many people liken the virtual loot box to a Las Vegas slot machine.[8]  Like the gambler who pays to play the slot machine without knowing the outcome, today’s gamer purchases a loot box without knowing the items she will receive.  With many players under the age of eighteen, should the government regulate loot boxes in video games like gambling in casinos?

A loot box is an optional in-game purchase that provides a randomized reward.[9]  The modern loot box is like the old, yellow mystery box in Nintendo’s Super Mario Brothers.[10]  In that video game, a person tapped the mystery box and Mario or Luigi received a randomized special ability (such as shooting fireballs at enemies).[11]  Like the mystery box in Super Mario Brothers, today’s loot box provides a randomized reward, such as a skin (i.e. a new outfit for a player’s avatar) or a catchphrase.[12] The crucial difference between the mystery box in Super Mario Brothers and the loot box in today’s video games is money.  Today, a player must purchase the loot box (with either in-game currency or real currency) to reap the randomized reward.[13]  By 2022, the video game industry anticipates $50 billion in revenue from loot boxes.[14]

As loot box purchases rise, lawmakers are taking notice.[15]  In both Belgium and the Netherlands, lawmakers moved to ban loot boxes.[16]  In Australia, lawmakers suggested that video games with loot boxes receive an “R” rating.[17]  However, people disagree on whether immediate regulatory action is appropriate.[18]  While some advocate for further studies,[19] others (like Republican Senator Josh Hawley) see the correlation between loot boxes and gambling as a justification for immediate regulatory action.[20]  In May of 2019,  Senator Hawley introduced a bill that bans loot box sales to minors.[21]  Conceivably, a minor—lacking impulse control and financial judgement—is more susceptible to the “loot box effect”[22] (i.e. the compulsion to keep playing the odds).  In an NPR interview, Senator Hawley stated “[Video game creators] need to be upfront about what their games are actually doing, and they need to stop practices that intentionally exploit children.”[23]

Compared to traditional gambling, a loot box costs as much as an average lottery ticket.[24]  For example, in Overwatch (a first-person shooter game) a person pays $9.99 for eleven loot boxes.[25]  Unlike a lottery ticket though, a minor can purchase a loot box.  An easily accessible and inexpensive loot box (like the lottery ticket) can trigger addictive behaviors in an individual.[26]  Many players report spending hundreds to thousands of dollars on these in-game purchases.[27]  Some adults even claim that their children used credit cards without their knowledge to purchase loot boxes.[28]  In my opinion, there is no significant difference between the gambler who pays to play the slots and the gamer who purchases a loot box.  In both scenarios, a person is paying to play her odds.  The virtual loot box ought to be regulated.

[1] See @FortniteGame, Twitter (May 6, 2020, 10:01 AM), https://twitter.com/FortniteGame/status/1258079550321446912.

[2] See Tom Warren, Minecraft Still Incredibly Popular as Sales Top 200 Million and 126 Million Play Monthly, The Verge (May 18, 2020, 9:00 AM), https://theverge.com/2020/5/18/21262045/minecraft-sales-monthly-players-statistics-youtube.

[3] See Nick Statt, Fortnite is Now One of the Biggest Games Ever with 350 Million Players, The Verge (May 6, 2020, 1:54 PM), https://theverge.com/2020/5/6/21249497/fortnite-350-million-registered-players-hours-played-april.

[4] See Sarah LeBoeuf, What is ‘Fortnite’?: A Look at the Video Game that has Become a Phenomenon, NBC News (Jun. 30, 2018 8:27 AM), http://nbcnews.com/tech/tech-news/what-fortnite-look-video-game-has-become-phenomenon-n887706.

[5] See id.

[6] See Isobel Asher Hamilton, There’s a Debate Raging in Video Games Over Whether Loot Boxes Should be Classified as Gambling, Business Insider (July 5, 2020, 5:22 AM), https://www.businessinsider.com/classifying-video-game-loot-boxes-as-gambling-2020-7.

[7] See id.

[8] See id.; see also Julie Steinberg, Loot Box Lawsuits Liken Transactions to Slot Machine Gambling, Bloomberg Law(Sept. 1, 2020, 1:57 AM), https://news.bloomberglaw.com/product-liability-and-toxics-law/loot-box-lawsuits-liken-transactions-to-slot-machine-gambling.

[9] See S. 1629, 116th Cong. § 2 (2019).

[10] See Ben Johnson, Loot Boxes are a Lucrative Game of Chance, But are They Gambling, NPR: All Things Considered(Oct. 10, 2019, 5:08 PM), https://www.npr.org/2019/10/10/769044790/loot-boxes-are-a-lucrative-game-of-chance-but-are-they-gambling.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See Hamilton, supra note 6 (stating “‘We’re really only in the early phases of gathering scientific research evidence about the nature of loot box effects,’ Professor Pete Etchells . . . told Business Insider. ‘What we really need is a clearer and stronger evidence base before legislation is changed.'”)

[19] See id.

[20] See Johnson, supra note 10.

[21] S. 1629, 116th Cong. § 2 (2019).

[22] See Steinberg, supra note 8.

[23] See Johnson, supra note 10.

[24] See id.

[25] See id.

[26] See id.

[27] See id; see also Steinberg, supra note 8.

[28] See Steinberg, supra note 8.

Image Source: https://techcrunch.com/2018/09/17/loot-boxes-face-scrutiny-from-an-international-coalition-of-gambling-authorities/?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAK4VebthFFKiNJaXSq2noSSUje6H0QKvGLVhnBlpzlBGYPVDmKi_7ft0v2Kb1s8H1CZbs3A84vrQgF2vS_HXkJN67tJwZyLSi7wmPpAcUwmITpoa9NToAzpVp3b6HcjfCERhgkt2nC-0NjS6VH17EuQjjZw81SHdauvFpeE20fog