Jacob Heimberger, MJLST Staffer
There is no shortage of ways to play Fortnite. The simplest way would be to play on a computer. If their PC meets the surprisingly reasonable system requirements to run the game, anybody could be blasting through walls and buildings as Sabrina Carpenter teamed up with Godzilla and Homer Simpson.[1] But maybe someone doesn’t own a computer that was made in the past two decades. Fortnite still has them covered. If they have gotten their hands on a relatively modern Xbox, PlayStation, Nintendo Switch, or Steam Deck, they’ll be driving Dodge Ram 1500 TRXs through the K-Pop Demon Hunters as Thanos or Hatsune Miku in no time.[2] If all else fails, the average layperson could even boot up Fortnite on their iPhone or Android.[3] On a cozy Friday night, anybody can cuddle up with their smartphone and drop out of a flying bus as Spider-Man and drop directly into Darth Vader’s martial arts dojo for a quick gunfight. Epic Games has ported their hit game to as many consoles as possible, allowing gamers to access Fortnite regardless of the technology they have on hand.
However, a more pedantic gamer would likely wince at the previous sentence. iPhones and Androids are not recognized as gaming consoles, although they can actually run games.[4] PC gamers are inclined to call sacrilege on anybody who dares propose that their gaming computers are even comparable to even high-performance consoles. This could be confusing to a non-gamer, because if all of these devices can run video games, then what even is a “gaming-console”?
The Ninth Circuit Court of Appeals tried to tackle this question over twenty-five years ago in Sony Computer Entertainment America, Inc. v. Bleem.[5] Here, to resolve a question of intellectual property, the court was challenged to determine what a console game market is composed of. The Ninth Circuit found “console games” distinct from other video games because they are played by loading a disk into a console which is then connected to a television.”[6] This is distinct from “computer games”, which the court defined as any game played by loading a disk into the CD drive of a computer.[7] These definitions were naive for the time, and even more so in the modern day, as games are playable on anything from a mobile to the seat screens on commercial airlines. Nintendo even released “Virtual Game Cards”, directly subverting the idea that video games require a physical disk or cartridge to be considered a console game.[8] Such a restrictive definition of gaming consoles prevents courts from properly identifying the scope of the console market, creating problems for large-scale antitrust litigation in the gaming sphere. For the sake of enforcing healthy competition in gaming markets, a more nuanced definition of a console is necessary.
A more modern legal definition for gaming consoles greatly broadened the scope of what devices may qualify. The Ninth Circuit recently ruled that physical consoles are devices that are designed for, and whose primary use is, to play video games.[9] However, certain PCs and even mobile phones are purchased for the sole purpose of playing games.[10] Despite the similarities, these devices are distinguishable from gaming consoles. Courts have found that gaming PCs typically have more advanced hardware to allow them to play more computationally demanding games.[11] Conversely, mobile games have lower levels of sophistication and graphics than PC or consoles.[12] Beyond its primary use, there seems to be a window of technological prowess that a device needs to fit into before being considered a console. It is easily inferred here that a game console is a device made with the primary purpose of playing video games, which is stronger than a mobile phone but weaker than the average gaming PC.
This is a generally satisfying definition, but a veteran gamer would recognize that a Nintendo Switch is functionally quite different from a modern Xbox or PlayStation. The Switch is portable, has its own screen, and is significantly less powerful hardware than its counterparts.[13] Differences between the three consoles does not matter. Whether a console is fully interchangeable with those of its competitors does not matter because perfect fungibility is not required.[14] Courts use the definition of consoles to help define the boundaries of the competition within video gaming markets.[15] A Nintendo Switch does not need to be replaceable by a PlayStation5 or Xbox in every respect. Rather, the relevant market encompasses the consoles and their respective companies whose presence drives competition, and whose foreclosure may disadvantage it.[16]
There is still room for improvement in this definition. The Steam Deck is functionally a computer which is in the shape of a handheld console.[17] They are widely considered to be PCs, regardless of the fact that they are made with the primary purpose of playing games and have gaming specs more comparable to high-performance gaming consoles like the Switch, Xbox, or PlayStation.[18] Despite checking every box, there is a serious contention that the Steam Deck is not a console.
It is reasonable to assume that as gaming consoles progress in technological prowess, gamers will show the courts which devices are in competition with one another through their purchasing habits. The definition of gaming consoles is in good hands, not necessarily with the courts, but with the gamers.
Notes
[1] What Are the System Requirements for Fortnite on PC?, Epic Games, https://www.epicgames.com/help/en-US/fortnite-battle-royale-c-202300000001636/technical-support-c-202300000001719/what-are-the-system-requirements-for-fortnite-on-pc-a202300000012731 (last visited Dec. 29, 2025).
[2] What Platforms or Devices are Compatible with Fortnite?, Epic Games,https://www.epicgames.com/help/en-US/fortnite-battle-royale-c-202300000001636/technical-support-c-202300000001719/what-platforms-or-devices-are-compatible-with-fortnite-a202300000012064 (last visited Dec. 29, 2025).
[3] See generally id.
[4] See Sony Comput. Entm’t Am., Inc. v. Bleem, LLC, 214 F.3d 1022 (9th Cir. 2000).
[5] See generally id.
[6] Id. at 1024.
[7] Id.
[8] Virtual Card Games, Nintendo, https://www.nintendo.com/us/gaming-systems/virtual-game-cards (last visited Dec. 29, 2025).
[9] FTC v. Microsoft Corp., 681 F. Supp. 3d 1069, 1077 (9th Cir. 2025).
[10] Razer, Razer Phone 2 – Flagship, Razer Newsroom (Oct. 10, 2018), https://www.razer.com/newsroom/product-news/razer-announces-the-razer-phone-2; Andrew E. Freedman, Best Gaming Laptops 2026: Tested and Reviewed, Tom’s Hardware (Jan. 9, 2026), https://www.tomshardware.com/laptops/gaming-laptops/best-gaming-laptops.
[11] Microsoft Corp., 681 F. Supp. at 1077.
[12] Id.
[13] Id. at 1086.
[14] Gorlick Distrib. Ctrs., LLC v. Car Sound Exhaust Sys., Inc., 723 F.3d 1019, 1025 (9th Cir. 2013) (citing United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 394 (1956)).
[15] In the Matter of Illumina, Inc. and Grail, Inc., No. 9401, 2023 WL 2823393, at *20 (F.T.C. Mar. 31, 2023).
[16] Id.
[17] Tim Brookes, Should You Buy a Steam Deck if You Don’t Have a Gaming PC?, How-To Geek (Dec. 3, 2024), https://www.howtogeek.com/should-you-buy-a-steam-deck-if-you-dont-have-a-gaming-pc/.
[18] Marla Broadway, What Console Is Better Than the Steam Deck?, PC Guide (last updated Nov. 29, 2023), https://www.pcguide.com/steam-deck/what-console-is-better/.