Earlier this month, U.S. Senator Josh Hawley announced plans to introduce legislation that would prohibit the sale of loot boxes and other “pay-to-win” monetization mechanics in the United States, and now he’s drafted up a proposed bill explaining how he’d achieve that goal.
As reported by Polygon, the proposed bill (which can be viewed online here) would serve to “regulate certain pay-to-win microtransactions and sales of loot boxes in interactive digital entertainment products.”
The document explains exactly what that would mean for game developers and publishers. For starters, it defines a “pay-to-win” transaction as an add-on that “eases a user’s progression through content otherwise available within the game without the purchase,” or one that “assists a users in accomplishing an achievement within the game that can otherwise be accomplished without.”
Loot boxes, meanwhile, are defined as add-ons that “unlock a feature of the product or adds to or enhances the entertainment value of a product in a randomized or partially randomized fashion.” Those definitions mean content such as story DLC, paid-for cosmetic items, and other such one-time purchases would be exempt from the new regulations.
The proposed bill would specifically prohibit the sale of microtransactions and loot boxes in “minor-orientated games,” which it defines as “an interactive digital entertainment product for which the target audience is individuals under the age of 18.”
It would also make it unlawful for game publishers and distributors to release minor-oriented titles that include pay-to-win microtransactions or loot boxes, or add them to an existing title.
The legislation would also prohibit the publication or distribution of games containing pay-to-win microtransactions or loot boxes where there’s “constructive knowledge” that any users are under the age of 18.
That places the burden on publishers and distributors to ensure their games — even those targeted at people over the age of 18 — aren’t falling into the hands of minors, raising questions about the inclusion of loot boxes and microtransactions in mature-rated titles like Call of Duty and Grand Theft Auto, which have a tendency to find their way into the hands of minors.
“While it is true that a large proportion of game players are adults, even games with predominantly adult player bases – including games marketed primarily to adults – tend to have enormous appeal to children,” wrote Hawley in an FAQ on his website.
“The onus should be on developers to deter child consumption of products that foster gambling and similarly compulsive purchasing behavior, just as is true in other industries that restrict access to certain kinds of products and forms of entertainment to adult consumers.”
Legally speaking, the “constructive knowledge” clause would likely make it easier for regulators to build cases against companies perceived to be in violation of the proposed bill, as Georgetown Law professor Angela Campbell explained to Polygon.
“Constructive knowledge requires the operator to make reasonable inferences and at least in some cases, investigate,” said Campbell.
“For example, the operator of a social media service that says in its terms of service that it is only for use by persons over age 13, and yet anyone who uses the service can see that many young children use it to post videos of themselves, would have constructive knowledge that children were on the service. It probably would have actual knowledge as well, but actual knowledge is harder to prove.”
You can find out more about the proposed bill checking it out for yourself over on Scribd. It’s also worth having a read of Hawley’s FAQ, as there are more details, definitions, and caveats included there.