![]() The court agreed that the mere procedural violations of BIPA did not give rise to Article III standing. ![]() In particular, plaintiffs alleged that in violation of BIPA, Take-Two: (1) failed to provide a data retention schedule (2) did not provide written notice to plaintiffs that biometric identifiers would be collected, or the purpose and length of that collection (3) collected biometric data without first obtaining a written release (4) disclosed biometric identifiers without obtaining adequate consent (5) failed to transmit biometric identifiers with reasonable care and (6) unlawfully profited from plaintiffs’ biometric identifiers.ĭefendant argued for dismissal based on Spokeo and an alleged failure to state a claim under BIPA. By proceeding you agree and consent to such uses and other uses pursuant to the End User License Agreement.ĭespite having agreed to these terms, plaintiffs alleged that defendant had not provided sufficient disclosures. Your face scan will be visible to you and others you play with and may be recorded or screen captured during gameplay. Before using the “MyPlayer” feature, gamers were required to agree to the following: If a gamer used the avatar in multiplayer mode, third parties could see that particular gamer’s avatar. The court described the MyPlayer feature, noting that it required gamers to go through a lengthy process by which cameras would scan the gamer’s face and head and thereafter create a digital avatar for use in the game. ![]() Defendant moved to dismiss, and the court agreed, dismissing the case on Spokeo grounds upon determining that Plaintiffs failed to allege concrete harm. Filed in New York federal court, plaintiffs alleged that the makers of NBA 2K had violated the Illinois Biometric Information Privacy Act (“BIPA”)’s disclosure, consent, and retention requirements for private entities that collect, store, and disseminate biometric data. Though the “MyPlayer” feature was highly popular (and created the phenomenon of people posting “face-scan fail” videos), the game was challenged in the matter of Vigil v. The creators of NBA 2K responded to this consumer demand, incorporating face-scan technology into its basketball game, thereby allowing gamers to actually see themselves in the game. While nostalgic gamers still have a soft spot for classic games like Asteroids, modern gamers value next-generation graphics and gameplay.
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