Law of the Game on Joystiq: Grumpy Thompson Again

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

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Like a bear awakening from winter hibernation, you can be assured that after a Grand Theft Auto game is slated for release, a certain attorney in Miami will come stumbling out of his cave, grumbling and growling. Sure enough, Jack Thompson released a statement just after GTA IV's April 29 release date was announced – I won't go as far as to call this statement a "threat," as it seems to lack any credible consequences for gamers or the industry. Jack has made many, similar vague statements in the past, forecasting everything from the destruction of Take-Two to the apocalypse in the wake of game releases, but what can Jack really do?

The answer to that question is 'not much,' from a legal perspective. Of course, there was that oddly short settlement agreement between Jack and Take-Two last year, whose status has been questioned previously, which should theoretically restrict Jack's ability to sue or threaten to sue to block the sale or publication of any Take-Two title. And if you look closely at the latest Thompson statement, it seems he's following those guidelines so far. To quote from his statement, "... contacting state and federal officials to stop the improper sales of Grand Theft Auto IV ..." Specifically, Jack is not suing, per the letter of the settlement, but encouraging government officials to act.

In fact, calling for government intervention is probably the best approach, as there isn't a good private action that could be applied across the board to GTA IV. In fact, only a Federal action, likely by the FTC, would be applicable in all states. In the case of an FTC action, it would likely have to fall under the Federal Trade Commission Act, assuming a case could be made for a "deceptive act" on the part of Take-Two. The alternative would be actions under each state's deceptive trade practices act. Many states, including Texas, where I practice, have deceptive trade practice statutes. (Here's a link to Texas's statute, which you must be dying to read.)

Of course, all of this legal wrangling seems to come back to two particular issues where Jack's theory becomes rather muddied. One is a problem of stretching the intent of the law, and the other is one of misdirected hostility.

The first is the deceptive trade practices claim. For the purposes of this discussion, I'll be focusing on Texas's act, as that's the one with which I'm most familiar. Deceptive trade claims were designed to protect consumers against a long list of activities unscrupulous business people could engage in, from false warranties to false advertising. (There is a pretty good list of Texas's claims available here.) However, legally selling a product isn't one of them, and there's simply no deception here. The video game ratings make clear what the content is in each game (barring the poorly hidden 'outtakes'). However, there is a claim, at least in Texas, that can be made when a retailer is taking advantage of the lack of knowledge of a purchaser to a gross degree. While it would be an exceptional stretch to get a ruling in favor of this claim, the claim could be made that parents are so uneducated about game ratings that stores are "taking advantage of them" by not explaining the ratings in a clear fashion, or that children lack the experience to understand what the rating descriptors mean, and therefore are equally impacted. I, however, wouldn't expect to see that claim make any headway in court.

The second is the target of the suit. Jack's assertion is in this case that there are "improper sales of Grand Theft Auto IV to anyone under seventeen years of age." This has been his standpoint for quite some time: that games should not be sold to minors. And yet, he targets the video game creators (specifically, Take-Two and Rockstar), not the game retailers, in his typical actions. That's not to say he hasn't attacked retailers as well, but the focus of his angst seems always to be the people who make the games. This is the equivalent of targeting a brewery because a bar sold its beer to minors, assuming you even accept that the "harm" done by games is even remotely close to something that needs to be controlled with respect to minors.

Of course, this all comes back to why Jack's typical modus operandi is on the publicity front. Jack is a smart guy, and he knows that he will have ground to stand on if and only if the laws back him up. To that end, he needs to win the hearts and minds of the people in order to impact the lawmakers who may then put him in a position where the laws back him. While he may never win the hearts and minds of gamers, there are plenty of people out there who are swayed by anything from the misleading to the completely absurd. It's an erosion process, not a Mythbusters-style explosion, and every negative game story is another wave over the rocks. Jack's hopes also rest on the court taking a radical turn on its current trend of striking down every video game law on free speech grounds, which seems unlikely.

All of this still ignores the double standard, whereby Jack hasn't complained about the ease of access for minors to similar content in other media (e.g., movies), only games. The Saw films are far more graphic than Manhunt 2 (we'll have to wait to see how the game compares). If content is really the concern, then it should be all content, not just some content, which would put the concept of "free speech" somewhere on par with "get rich quick." But I digress. At some point I'll tackle the whole game regulation issue, but until then, sleep soundly knowing that a certain internet boogie-man won't keep you from getting your copy of GTA IV in a few short months.


Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

This article was originally published on Joystiq.