Counterpoint: Hearthstone - Is it Gambling? (Part 2)

Counterpoint: Hearthstone – It’s not gambling (Part 2)

You can read part one of our series here on why Hearthstone is not necessarily a pay-to-win game. This time around, we’ll examine the other issue: Is Hearthstone considered gambling?  Gambling, as generally defined is:

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“The betting or staking of something of value, with consciousness of risk and hope of gain, on the outcome of a game, a contest, or an uncertain event whose result may be determined by chance or accident or have an unexpected result by reason of the bettor’s miscalculation.”

There is a risk, there is a reward, there is money involved. Buying a deck in Hearthstone using cash means money is already involved. There is a risk that you could end up with several Common cards, and there is a reward, a hope of gain, especially if you come out with rarer pieces. Sounds a lot like gambling, right? It may, but here’s why it isn’t.

Pokemon was met with similar backlash and accusations of gambling that Hearthstone faces today

The magic connection (part two) — Oh, and Pokémon!

Alongside the rise of Magic: The Gathering in the ’90s came a wave of panic. That’s because certain folks thought the hobby made children susceptible to devil-worship and the occult. Pokémon also suffered the same scrutiny. Hysteria was the theme of the moment when parents felt their kids were taking up “a dangerous hobby.” Trading cards were seen as “causing a crime wave.” Oh, and naturally, churches claimed it led children to “enter the world of witchcraft.”

I knew the theme song in reverse was just a druidic chant to summon the 72 demons of King Solomon. But hey, I gotta catch ’em all, right? It wasn’t just the moral fiber of America’s children that had been threatened. It was also the wallets of their parents.

In 1999, the parents of two kids sued Nintendo of America for their Pokémon Trading Card Game. Apparently, it was because the kids were “forced” to empty their pockets trying to get rare cards, that’s probably “illegal gambling,” right? One of the children was interviewed and he answered: “I spent lots of money on it. It’s like gambling, kind of.” Of course, it begs the question: “Is it really illegal gambling? Or is it just bad parenting?” The suit was promptly dismissed along with many others.

RICO – that unbelievably rare card

The Racketeer Influenced and Corrupt Organizations (RICO) Act is what plaintiffs use in their attempts to sue trading card companies whom they feel are engaged in illegal gambling — so far many of these attempts have failed simply because there had not been sufficient evidence to prove otherwise. In fact, it’s even suggested that rather than wasting your time and money in suing a company, you should probably monitor your kids more often instead.

While trading card companies have had a slew of lawsuits over the years, those pertaining to RICO and illegal gambling are notable as they will be cited as precedence in any and all future decisions. Some newer lawsuits would pertain to older cases, such as when Marty Schwartz sued Upper Deck in the late ’90s, and the suit dragged on for years until finally being dismissed in 2000:

Plaintiffs appear to argue that, by the mere fact that there is a property interest involved (the consideration tendered in exchange for a pack of trading cards), such consideration constitutes an economic loss sufficient to constitute a § 1964(c) injury to one’s “business or property.” This is a circular contention, however, one which seems to overlook the precise issue facing this Court: Have Plaintiffs suffered an economic injury or loss; or have they in fact received the benefit of their bargain the pack of cards and a chance to win?

Plaintiffs struck a bargain with Defendant and received the benefit of their bargain. They paid for a pack of cards which included a bona fide “chance to win.” See Allard v. Flamingo Hilton (In re Chomakos), 69 F.3d 769, 770 (6th Cir.1995). Plaintiffs knew when they made their purchase that they might not draw a “chase card” and that the most they might receive would be a pack of non-chase trading cards.


The men in suits

This is simply because when you define anything as “gambling” it will invariably open up a can of worms, and therefore lead to regulations from the government. Lawmakers will study it, and then come up with proposals. Distinctions and amendments are provided, and everything just becomes messier than usual. Not a single person wants that in their hobby.

Whether it’s baseball cards, basketball cards, Magic, Pokémon, or any other game where you buy a deck with random results — nobody wants these hobbies to suddenly fall under the scrutiny of old farts who once held a Congressional hearing due to Mortal Kombat’s violence. Oh, and that event led to the creation of the ESRB, which presently does not consider loot boxes as “gambling” either because they are similar to trading cards.

It’s also worth noting that this is entirely dependent on the country. China, where gambling illegal in the mainland, has pushed for Blizzard to publicize the odds and drop rates of certain cards. Belgium and The Netherlands cited that certain games are in violation of gambling laws.

So it becomes very messy and complicated since card packs were the ‘OG’ loot boxes of yester-decades. You will need to rewrite decades of historical legislature and judiciary decisions, especially if you feel that “risking cash to open something and get random rewards” is considered “illegal and must be regulated.” You cannot wish for something to happen in your country when its legislative and judiciary precedents are completely different.

Dutch dealings and belgian waffles

There is, however, one small caveat for The Netherlands — games that were seen to have “gambling mechanics” were those with in-game stores. This meant buying a box/crate and being able to sell what you obtained with an expected market value from said store. The four games the country had found in violation of its laws were FIFA 18, DOTA 2, PUBG, and Rocket League.

Wizards of the Coast, the creators of Magic: The Gathering, as well as other card game makers, skirted around this issue easily in the past. Simple — players defined the market value of cards, not the companies themselves. Plus, you always had a minimum draw from each deck that you bought — you weren’t “left with nothing,” which is what “real gambling” does.

Hearthstone does not even have an auction house for trading cards among players. They have publicly spoken about this. Technically, it could not even be considered “gambling as defined by The Netherlands.”

Belgium, however, pretty much threw a blanket on everything, even citing Overwatch in violation of its laws. The game does not even have its own market, auction house, or tradable skins. Its cosmetics pricing and business model have even been praised by fans and critics alike. Everyone thought the system was generous and not-at-all dangerous for kids. Naturally, Belgium’s decision made Overwatch’s players facepalm collectively. Yes, even two countries with strict laws against gambling and loot boxes ended up examining games differently.

The dangers of classification

This is inherently the danger in haphazardly coining something as bad, evil, predatory, or leading children to crime. People got carried away with certain words and phrases thrown around in the ’90s. They condemned everything in the world for what happens to kids. We look back on those days and wonder how wacky people became in their hysteria and outrage. We look back at how people used the government and the law to find something to blame. Then we look at today and wonder if it’s the same thing all over again.

So if Hearthstone is neither “pay-to-win” nor “gambling” (legislatively), then what is it?

Well — Hearthstone is a video game. It’s a fun hobby meant to pass the time, where you’re free to spend extra if you wish. Oh, and if you happen to be spending a lot more than usual, do a Plato and follow his advice. Remember — “Moderation in all things.”

If children are getting too addicted to buying stuff online, there are always solutions. First, change your Apple ID password. Second, hide your credit card. And third, like what anyone today would advise outraged people in the ’90s: “Be a responsible parent.”

Technology changes, but basic human concepts remain the same.