Merchantability of low quality video games &amp; UCC 2-315
<p>For the purposes of this question, let's assume an online retailer who sells digitally distributed video games, based in California, selling to a consumer in New York. The NY based consumer is using a Windows PC that is not unusual in its hardware or configuration.</p>

<p>My understanding is that a seller can't sell goods that they know aren't fit for their intended purpose. For example, <a href="https://www.law.cornell.edu/ucc/2/2-315" rel="nofollow noreferrer">this</a> is in the UCC:</p>

<pre><code>        § 2-315. Implied Warranty: Fitness for Particular Purpose.
    Where the seller at the time of contracting has reason to know any 
particular purpose for which the goods are required and that the buyer
is relying on the seller's skill or judgment to select or furnish
suitable goods, there is unless excluded or modified under the next
section an implied warranty that the goods shall be fit for such purpose.
</code></pre>

<p>§2-316 talks about exclusions or modifications and says they must be conspicuous. For this question let's assume that the seller doesn't have any specific text regarding this in their terms of sale or in the terms of service for their online storefront.</p>

<p>My understanding of this is that a particular good has to be able to do what goods of its type do. For example, a retailer can't sell a shovel made of metal so weak that it bends instead of digging into the ground.</p>

<p>How does this apply to products whose purpose is to entertain? In particular I'm looking for information on video games.</p>

<p>I have three points I'm curious about, and wondering if the retailer is violating the UCC (or any other laws) in any of these cases:</p>

<ol>
<li><p>Some people like some games while others dislike them. Would different people have different abilities to claim that a retailer had violated the law based on personal tastes?</p></li>
<li><p>Some games are universally disliked. They receive nearly universally bad reviews by both consumers and professional reviewers, with very few positive reviews and nearly nobody praising the game. The game is simply not enjoyable in any way for the vast majority of people.</p></li>
<li><p>The game simply will not run on the consumer's PC. Others are able to get it to run, but the particular consumer mentioned in the first paragraph cannot get the game to run.</p></li>
</ol>

<h1>Entertainment value</h1>

<p>The implied warranty does not apply to aesthetic judgements about a product's entertainment value. Video games are, in this respect, art.<sup>1</sup> The exact same analysis applies to movies and vinyls that you buy, and musicals that you attend. If you happen to not like them, so be it. The purpose was not to entertain a particular person, or anybody. The purpose was to communicate a particular expression.</p>

<h1>Usability</h1>

<p>If the provider has not disclaimed fitness for a particular purpose or merchantability, then the implied warranties of UCC 2-315 are in effect. A typical disclaimer says (this is from Valve):</p>

<blockquote>
  <p>... without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or noninfringement.</p>
</blockquote>

<hr>

<p><sup>1. Video games have been held to be art in the First Amendment context also: Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011).</sup></p>

united-states software consumer-protection ucc