DLC: Why the Difference Between a Noun and an Adjective May Alter Common Practices of the $200 Billion Global Gaming Industry

The international video game industry has transcended the stereotype of appealing only to teenage boys in dark basements.[1] At nearly $200 billion, the size of the video game industry eclipses every other major North American entertainment market.[2] To access contemporary video games, however, a gamer must first download the content. The phrase “downloadable content” is the driving term in a new lawsuit against ZeniMax Media and Bethesda Softworks (collectively “Bethesda”).[3] That lawsuit could prove to have a massive impact on video game contract creation, and, thus, a nearly $200 billion global industry. 

One US court has recognized a fairly expansive scope of what is downloadable content.[4] However, most courts have only used the term downloadable content as a modifier for an item purchased; the term operates as an adjective.[5] In this instance, however, Downloadable Content (“DLC”) refers not as a modifier but as the item itself and operates as a noun. DLC is a phrase commonly used for post-publication maps, levels, adventures, or other additions to video games.[6] Bethesda published Fallout 4 on November 10, 2015.[7] In anticipation, Bethesda announced on September 9, 2015, that Fallout 4 would sell post-publication DLC but that consumers would be able to buy a Season Pass to get that DLC at a discount.[8] That pass, Bethesda announced “will get you all of the Fallout 4 DLC we ever do for just $30.”[9] Eventually, Bethesda revisited the price and increased it to $50, arguing that the DLC would be worth over $60.[10]

The lawsuit’s claim and these announcements show the difference between gamer lingo and legal jargon.[11] To many gamers DLC is different than downloadable content.[12] It is reasonable, then, that Bethesda used language around DLC with a specific product, expansive publisher created content, in mind. For example, the September 9, 2015 post differs from a September 16, 2016 announcement, which said the Season Pass covered certain “add-ons.”[13] Despite this, that September 16 post said, “If you already purchased the season pass for $29.99, nothing changes - you still get everything at no additional cost.”[14]

Bethesda’s Creation Club is a marketplace for both third-party and publisher content which can be used in Fallout 4, but all the content is vetted by Bethesda before being available for purchase.[15] Creation Club currency is purchased with real money and then used to purchase things like skins and other items.[16] Creation Club content does not arrive at your house in the mail, but, rather, is downloaded over the internet. This downloadable content is not provided for in the Season Pass, nor does that pass offer any additional Creation Club currency.[17] The lawsuit in question claims that the Season Pass applies to downloadable content, not just DLC, and that the failure to allow Season Pass-owners free access to Creation Club content is a breach of contract.[18]

The Season Pass is a contract like any other and represents a meeting of the minds. Bethesda’s strongest defense is that the gamers purchased the Season Pass to benefit from discounted DLC. DLC is distinct from downloadable content because most gamers would likely recognize DLC as expansive content provided by the publisher. The counter to this is that the Creation Club content is published by Bethesda and may very well be DLC sold through a new medium despite Bethesda marketing director Pete Hines arguing that it is not DLC.[19] Regardless, the ramifications of this suit are much larger than Bethesda offering more content. Microsoft recently acquired ZeniMax and Bethesda in a nearly $8 billion deal.[20] The deal was approved by the European Commission on March 8, 2021.[21] The firm bringing suit against Bethesda may motion for a preliminary injunction in a US court to halt movement of Bethesda’s assets.[22]

Bethesda’s loose usage of the term downloadable content has the potential to affect both a multi-billion-dollar acquisition and multi-hundred-billion-dollar international industry. Video games are a rapidly evolving industry; season passes and DLC were the microtransaction norm only a few years ago, but they have been replaced by battle passes as exemplified by games like Fortnite, Call of Duty, and Apex: Legends.[23] Regardless of who wins the suit, this action could be a catalyst for a new video game content marketing strategy which could radically change one of the world’s biggest entertainment industries.

Evan Richardson is a staff member of Fordham International Law Journal Volume XLIV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.

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[1] See Marc Saltzman, Video Games: More Women Play Now Than Teen Boys Do, Millennials and Boomers Play, Too, USA Today (June 11, 2019), https://www.usatoday.com/story/tech/columnist/2019/06/11/more-women-play-video-games-now-than-teen-boys-busting-stereotypes/1414430001/.

[2] See Wallace Witkowski, Videogames are a Bigger Industry Than Movies and North American Sports Combined, Thanks to the Pandemic, MarketWatch (Dec. 22, 2020), https://www.marketwatch.com/story/videogames-are-a-bigger-industry-than-sports-and-movies-combined-thanks-to-the-pandemic-11608654990; see also Felix Richter, Gaming: The Most Lucrative Entertainment Industry By Far, Statista (Sept. 22, 2020), https://www.statista.com/chart/22392/global-revenue-of-selected-entertainment-industry-sectors/.

[3] See Rich Stanton, Bethesda Sued Because Fallout 4's All-Inclusive Season Pass Did Not Include Everything, PCGamer (Feb. 24, 2021), https://www.pcgamer.com/bethesda-sued-because-fallout-4s-all-inclusive-season-pass-did-not-include-everything/.

[4] Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07–CV–275–D, 2011 WL 6748518, at *3 n. 10 (E.D.N.C. Dec. 22, 2011) (“’Downloadable content’ includes extra game features or keys that users can purchase for small amounts and then download over the internet.”).

[5] See e.g., McKinney v. Microsoft Corporation, No. 1:10–cv–354, 2011 WL 13228141, at *6 (S.D. Ohio May 12, 2011); Mil–Spec Monkey, Inc. v. Activision Blizzard, Inc., 74 F. Supp. 3d 1134, 1138 (N.D. Cal. 2014).

[6] See Vann Vicente, What is DLC in Video Games?, How To Geek (Apr. 11, 2020), https://www.howtogeek.com/517246/what-is-dlc-in-video-games/ (recognizing a difference between DLC which is generally regarded as publisher created and “mods” which are user created and primarily linked with Bethesda games).

[7] Fallout 4, Steam (last visited Mar. 26, 2021), https://store.steampowered.com/app/377160/Fallout_4/.

[8] See Bethesda Game Studios, Fallout 4 – Launch and Beyond, Bethesda.net (Sept. 5, 2015), https://bethesda.net/en/article/2RAO5fYPkcUC0i8KMkyOS/fallout-4-launch-and-beyond.

[9] Id.

[10] See Jonathon Dornbush, Fallout 4 DLC News, Season Pass Price, Entertainment Weekly (Feb. 17, 2016), https://ew.com/article/2016/02/17/fallout-4-season-pass-price-increase-details/.

[11] See Complaint at 2, Devine v. Bethesda Softworks, Inc., No. 8:19-cv-02009-CBD (D.C.M.D. July 9, 2019).

[12] See Vicente, supra note 6.

[13] Bethesda Game Studios, Fallout 4 Add-Ons – Automatron, Wasteland Workshop, Far Harbor and More, Bethesda.net (Feb. 16, 2016), https://bethesda.net/en/article/3U2q1EOhUcymEmeKEYes60/fallout-4-add-ons-automatron-wasteland-workshop-far-harbor-and-more (Bethesda used terms like DLC, downloadable content, and add-ons interchangeably).

[14] Id.

[15] Bethesda Game Studies, FAQ, Bethesda.net (last visited Mar. 26, 2021), https://creationclub.bethesda.net/ [hereinafter FAQ].

[16] Id.

[17] See id.

[18] See Stanton, supra note 3; see also Complaint, supra note 11, at 2.

[19] See FAQ, supra note 15; see also Pete Hines (@DCDeacon), Twitter (Sept. 3, 2017, 11:54 AM), https://twitter.com/dcdeacon/status/904372011429904384?lang=en.

[20] See Tom Warren, Microsoft Completes Bethesda Acquisition, Promises Some Xbox and PC Exclusives, The Verge (Mar. 9, 2021), https://www.theverge.com/2021/3/9/22319124/microsoft-bethesda-acquisition-complete-finalized.

[21] See id.

[22] See Chriss Kerr, Ongoing Fallout 4 DLC Lawsuit Could Impact Microsoft's Takeover of Bethesda, Gamasutra (Feb. 25, 2021), https://www.gamasutra.com/view/news/377927/Ongoing_Fallout_4_DLC_lawsuit_could_impact_Microsofts_takeover_of_Bethesda.php; see also Dean Takahashi, Bethesda Faces Broad Class-Action Lawsuit Over Fallout 4 DLC as Microsoft Takeover Looms, VentureBeat (Feb. 23, 2021), https://venturebeat.com/2021/02/23/bethesda-faces-broad-class-action-lawsuit-over-fallout-4-dlc-as-microsoft-takeover-looms/.

[23] See Zackerie Fairfax, Who Has The Best Battle Pass?, Screen Rant (May 29, 2020), https://screenrant.com/best-battle-pass-fortnite-apex-legends-pubg-warzone/.