Take-Two Interactive Software, Inc. Responds To Class Action Lawsuit Over NBA 2K Games

On December 4, 2015, Ricardo and Vanessa Virgil filed a Class Action Complaint in the United States District Court of the Southern District of New York against Take-Two Interactive Software, Inc. based on the company “collecting, storing, using, disclosing, and disseminating” individuals’ biometric identifiers and biometric information.

Take-Two is the publisher, developer, and distributor of the immensely popular NBA 2K basketball video games. The NBA 2K15 and NBA 2K16 versions of these games have a MyPlayer feature that allows users to scan their facial geometry using a PlayStation Camera or an Xbox One Kinect and import the scans into the game to create more realistic virtual versions of themselves. Ricardo and Vanessa Virgil are the two Plaintiffs in this case who claim to have purchased and played the NBA 2K15 game in Illinois and to have used a PlayStation Camera to scan in their facial geometry for the MyPlayer mode.

The Plaintiffs argue that the MyPlayer feature and the actions of Take-Two violate the 2008 Illinois Biometric Information Privacy Act (“BIPA”), as the company “failed to obtain adequate consent” for the collecting, storing, and usage of such information. BIPA provides that private entities may not obtain and/or possess an individual’s biometrics unless it:

(1) publishes publically available written retention schedules and guidelines for permanently destroying biometric identifiers and biometric information;

(2) informs that person in writing that biometric identifiers or information will be collected or stored;

(3) informs that person in writing of the specific purpose and length of term for which such biometric identifiers or biometric information is being collected, stored and used; and

(4) receives a written release from the person for the collection of his or her biometric identifiers or information.

In their complaint, the Plaintiffs analogize this practice of facial scanning to the collection of fingerprint data without the consent of the users. The Plaintiffs asked the federal court for certification as a class, statutory damages, and other equitable relief.

On January 15, 2016, Take-Two responded to the Class Action Complaint with a Motion to Dismiss. Take-Two begins the Motion by arguing generally that the Plaintiffs are attempting to misuse BIPA, which was passed to prevent “identity theft, financial damages, political targeting, and other serious harms,” not to prevent video game players from making a realistic virtual avatar that plays basketball.

The video game developer then moves on to its two legal arguments for dismissal: first, that the Plaintiffs lack standing to sue based on Article III of the Constitution; and second that the Plaintiffs have not properly stated a claim in the Complaint since they do not allege that they have been “aggrieved” by the actions of Take-Two.

To have “standing” in court, which effectively is the ability to bring a lawsuit, a person must be able to show that they have suffered an injury that is “concrete and particularized” as well as “actual or imminent.” According to Take-Two, the mere loss of privacy is not sufficient to satisfy this burden, nor is the violation of a state statute sufficient to give a federal court standing. Therefore, the game developer argues that the Plaintiffs have not suffered a sufficient injury to have standing in federal court and that the court must subsequently dismiss the case.

For its second argument, Take-Two points out that BIPA permits individuals to sue for violations of the statute only when they have been “aggrieved.” Take-Two argues that the MyPlayer facial scans are used only for entertainment purposes, that the feature does not scan a person’s face well enough to be considered biometric information, and that no grievance has been felt by the Plaintiffs. This argument essentially rests again on the idea that the Plaintiffs have not suffered an “actual injury” due to the facial scans in the NBA 2K games.

This is certainly an intriguing lawsuit, as the federal court must consider the value of personal biometric information in a world where such information is increasingly used on a daily basis. The court must ultimately decide whether Take-Two has gone too far in attempting to create the most realistic virtual basketball simulation possible.

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