Star Wars mod wars: claims over a touted but unreleased mod have to go to trial

Mickelonis v. Aspyr Media, No. 8:23-cv-01220-MWC-ADS, 2025 WL 3050071 (C.D. Cal. Oct. 2, 2025)

Interesting video game related dispute: Aspyr develops video games, including by recreating and re-releasing historic games on modern platforms like Steam and Nintendo Switch. Aspyr has a longstanding relationship with Lucasfilm to release historic Star Wars games, including Knight of the Old Republic II: The Sith Lords (KOTOR II). Players adopt the personal of a Star Wars character and guide that player through a storyline.

Many games allow players to add their own content, including maps, designs, and other features. Gameplayers also release new, unofficial content, called “mods” or “downloadable content.” “The game studios that release these games are not the designers of these mods, and the mods often have gameplay or other issues.” Years after KOTOR II’s 2004 release on Xbox, a group of modders discovered previously unreleased code in the game itself and created the mod at issue here; the group included programmers, fans who supplied new voice-overs, and others. Aspyr characterized the mod as involving “a few new characters and an alternate ending,” while plaintiffs argued that the mod had “a significant amount of unreleased and unfinished content,” which the modders “unlock[ed], fill[ed] out, debug[ged], and complete[d] ... ,” including “expanded locations, new dialogue and voices, new character interactions, and even a new planet.”

Aspyr re-released KOTOR II for Steam, Nintendo Switch, Xbox, and others in 2017. When re-releasing KOTOR II for Steam, Aspyr negotiated with the developers of the Mod for them to release the Mod at the same time; the Mod would be free on Steam, just as it had been when the developers released it in the early 2000s. Aspyr also contacted the modders, who signed a formal release on behalf of the developer group, for free release on the Switch. The parties disagree on what happened next.

Aspyr’s Star Wars games historically cost between $9 and $15 to consumers. As for marketing,

 Many of KOTOR II’s users are drawn to the game because of Star Wars, rather than a general interest in video games. Accordingly, when marketing to those consumers, Defendant focused on emphasizing the Star Wars theme and the Lucasfilm logo. Other users were more focused on KOTOR II’s game type—a first-person, choose-your-own-adventure story, and the bulk of Defendant’s advertising focused on these users. That advertising included a YouTube video showing actual gameplay and describing the game’s story.

One of its YouTube videos had, in the final four seconds, an announcement reading “Coming Soon: Restored Content DLC.” Nintendo posted the same trailer on its e-shop for KOTOR II where consumers would purchase the game. Aspyr tweeted about the Mod and referred to it publicly multiple times. It released a version of KOTOR II for Nintendo Switch while the release of the Mod was still pending. And then, as the existence of this litigation signals, it didn’t release the Mod, apparently because Lucasfilm got cold feet/wanted releases from people who weren’t findable. During the attempt to reach agreement, a higher-up told people that “all marketing activity should be paused,” but the marketing team did not remove several ads, including the YouTube video announcing the release and various tweets.

Thus, in June 2023, Aspyr announced that it couldn’t release the Mod and offered a free game to maintain customer loyalty. It sold 160,000 copies of KOTOR II worldwide.

Plaintiffs provided evidence that some consumers were motivated by the Mod, e.g., “They knew no one would buy it without the [Mod]” and “Restored Content DLC? That’s really good, more than what I expected... Serious?! Even the current Xbox version doesn’t have it. I might need to buy it... If that’s true it’s a must buy to me,” and then “Fuck Aspyr for not offering us refunds and for straight up bait and switching us (which is illegal by the way)” and “Free game key. How about a refund guys. This was one of the key selling points of the port, a lot of people only bought it because they expected the [Mod].”

Plaintiffs submitted expert reports indicating that economic damages could be readily determined and that the Mod was likely material. Aspyr provided countervailing expert reports contesting these points. Hal Poret surveyed over 300 individuals who played KOTOR II for Nintendo Switch and found that 96.3% of respondents stated that they were satisfied with the overall purchase, while 1.7% said that they were dissatisfied, and that “[w]hen asked for all the reasons that come to mind for why respondents were satisfied or dissatisfied with their purchase of the game, 0.7% of respondents (2 out of 300) mentioned anything having to do with restored DLC.” Asking people about satisfaction with something they’ve paid for runs into significant problems of post-purchase rationalization; plaintiffs’ expert also argued that the survey “suffer[ed] from a severe validity issue, that is, it failed to measure what is supposed to measure—material impact of the ‘deceptive’ and ‘false’ advertising message about the Restored Content DLC upon relevant consumer’s intention to purchase KOTOR II,” with “an invalid measurement of materiality, an incorrect definition of universe and a major leading question.”

Although the court denied class certification under the laws of a number of states, the case continued.  

The court declined to grant Aspyr summary judgment on materiality, since a reasonable jury could reject Poret’s study. Aspyr argued that the plaintiffs were a weird, small segment of the buying public, not reasonable consumers, but plaintiffs’ own testimony plus the online comments would let a reasonable jury decide otherwise. The court noted that, “[i]n determining whether a statement is materially misleading under California law, the primary evidence ... is the advertising itself.” “Given that the last image that anyone viewing the announcement YouTube video saw were the words ‘Coming Soon: Restored Content DLC,’ and that [redacted] [ed. note: argh!], a reasonable jury viewing the advertisement could also find materiality based on its contents.” Although “materiality depends on the perspective of the consumer, not the perspective of the defendant,” the advertising itself was evidence.

Standing: Aspyr argued that, because the plaintiffs couldn’t prove that the Mod had any economic value, they lacked standing. Again, this was a contested material issue.

Injunctive relief: Aspyr argued that it had ceased marketing the Mod, but plaintiffs pointed to persisting online traces claiming that the DLC was “coming soon” on “affiliate platforms that it controls, including IGN and Gamespot.” The evidence that Aspyr controlled these sources was “limited,” but Aspyr provided no counterevidence and thus couldn’t get summary judgment.

Aspyr then argued that it lacked the requisite knowledge until March 2023, when Lucasfilm told it that Lucasfilm wouldn’t approve the release. It argued that the laws of California, Oregon, South Carolina, and Colorado required knowledge of the deception, or at least negligence (for California). For claims seeking injunctive relief under the California UCL, the court found knowledge unnecessary, while the CLRA does require knowledge (for damages). There was a genuine dispute of material fact about Aspyr’s knowledge. There was evidence that, when it started advertising, Aspyr lacked approval, and “Coming Soon” could confuse the public into believing that the game would certainly have a DLC, “when there remained a distinct possibility that the DLC would never receive approval.” A reasonable jury could conclude that the ad was knowingly false.

Oregon: “[D]efendant[’s] representations violated the [Oregon] UTPA only if, at the time that they were made, defendant[ ] knew or should have known that [its] services did not have the qualities defendant[ ] represented them to have.” There was also a genuine dispute here.

South Carolina:  The plaintiff from this state alleged that he bought the game before it was available for purchase, so the claim failed regardless of the legal standard around knowledge.

Colorado: “[a] CCPA claim will only lie if the plaintiff can show the defendant knowingly engaged in a deceptive trade practice.” Thus, Colorado’s consumer protection law “provides an absolute defense to a misrepresentation caused by negligence or honest mistake,” meaning that liability “is dependent upon knowledge or intent existing at the time of the advertising conduct and the remediable damage that results from that conduct.” Still, there was a genuine dispute of material fact.

Reliance: Plaintiffs’ declarations that they saw the marketing materials sufficed to create a genuine dispute of material fact.

Texas: Plaintiffs failed to give the required notice under Texas consumer protection law before suing.

The court also denied plaintiffs’ motion for partial summary judgment on falsity. “Viewing the evidence in the light most favorable to Defendant, Plaintiffs have not offered sufficient evidence to show that they were reasonable consumers rather than consumers with specialized knowledge.” And they didn’t satisfy their burden to prove that the statements were false when made; a reasonable jury could find that “Coming Soon” wasn’t false “based on the progress that had already been made in obtaining approvals to release the DLC, including its receipt of approval from the ‘Mod leaders.’”