Court Tosses Lawsuit Brought By Brother And Sister Against Take-Two Interactive Over NBA2K Face Scans

from the nice-try dept

As face-scanning technology has progressed, its use in video games has become more and more realistic. While several games make use of this to transport the gamer directly into the game they play, one of the best to do this is 2K Sports' NBA2K series. By using a web camera or your smartphone, you can take a scan of your face and import it into the game to create your own avatar to ball out on the court with NBA stars. I've done this, and it's awesome.

It's that face-scanning feature that was the subject of an attempted lawsuit by a brother and sister in Illinois, however, who argued that Take-Two was violating the state's Biometric Information Privacy Act, which seeks to ensure that businesses that store biometric data for their customers are protecting that data and not using it in ways the customer had never intended. The idea is that if your bank requires a fingerprint to access your account, and either loses that data to theft or uses that data for some other purpose, the public can get monetary and injunctive relief from the court. To do so, however, the plaintiff must suffer actual harm from a violation of BIPA.

Ricardo and Vanessa Vigil used the face scan feature in a copy of NBA2K they purchased, and agreed to the terms of service for the feature, but then sought monetary damages against Take-Two, claiming that the "actual harm" they suffered was the failure to follow every rule in BIPA itself. They claimed that the risk that their faces could be pilfered after they decided to play the online portions of the game with the characters they created using their face scans qualified as actual harm. The judge, after a motion to dismiss by Take-Two, was not buying it.

There is no allegation that Take-Two has disseminated or sold the plaintiffs' biometric data to third-parties, or that Take-Two has used the plaintiffs' biometric information in any way not contemplated by the only possible use of the MyPlayer feature: the creation of personalized basketball avatars for in-game play. The purported violations of BIPA are, at best, marginal, and the plaintiffs lack standing to pursue their claims for the alleged bare procedural violations of BIPA.

In other words: nice try on the money-grab, but we're not buying it. The idea behind BIPA is not to allow the public to syphon away money from companies that have been completely upfront about the use of biometric data, or face scans. Had the court allowed the potential for injury to serve as a valid reason for a lawsuit, the use of biometric data by companies and consenting members of the public would result in all kinds of lawsuits. And that technology has far more useful applications than video game face scans.

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  • icon
    John85851 (profile), 3 Feb 2017 @ 8:38am


    When I started reading the article, I thought it would be about how Take-Two Interactive accidentally used these two people's faces in advertising, leading the people to be embarrassed or such.
    Where's the "harm" or "damage" here?

    And once again, who's the lawyer that took on this case, knowing full well it wouldn't go anywhere?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2017 @ 3:28pm

    Talking about a couple of dumb people. They were free to use or not use this feature. They ignored the warnings, and then assumed something bad might of happened with that data based on nothing. Yet someone else looking for a payday.

    reply to this | link to this | view in chronology ]

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