LGJ: More game laws?
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
It's early 2009, we've just elected a new President, and there are quite literally a mountain of problems to be addressed on Capitol Hill. Our economy has been in substantial turmoil for roughly six months, with some problems stretching back for years. Many states are at or near bankruptcy. This economic crisis has, by now, hit every country on the planet to some degree. So, our legislators have spent the last two months rushing to put together proposals to regulate video games. No, no one's undivided attention has been on the economy during this complete mess. Instead, since the start of the year, it seems there has been an explosion of potential new video game regulations, from Jack Thompson's bill in Utah, to New York, to the US Congress, to Australia -- just to name a few. And that's in addition to issues like the FTC's rumblings about DRM, which I've mentioned previously.
While this boom in regulations and potential enforcement may be great news for sites like GamePolitics, it's potentially bad news for game developers and consumers, not to mention the taxpayers who are footing the bill for all of this. Of course, these laws are also coming from a number of different directions and under different theories, so I thought it might be a good time to give a short take on each and predict which directions things could be going.
So, what are all these bills, anyway? Surprisingly, they're not all the typical cut and dry, "games hurt kids so let's ban them" legislation that we've seen fail dozens of times before. In fact, the issue in Australia isn't a new law, but one of enforcing the one on the books. The issue is whether MMO games need to be rated under the Australian system, or, more precisely, whether they have been sold without any or proper ratings. Rating games that are based heavily on player to player interactions is often difficult in any market. The controversy remains unresolved, and may lead to revision of the laws on the books since 1995. In that regard, some credit is due to the Australians for not actively bringing up games legislation currently; this falls into the category of bad timing of random events.
In the US, on the other hand, the regulations are actually actively being proposed. At the federal level, we have a proposed regulation to add warning labels to games stating "WARNING: Excessive exposure to violent video games and other violent media has been linked to aggressive behavior." I'm sure most readers can immediately see the flaw in this proposal, as there is ample scientific evidence on both sides of this issue, unlike other products with government mandated warning labels like cigarettes. On top of that, there is the vagueness of the warning itself: what is "excessive?" There are a number of possible challenges to this law, but it seems doubtful it will ever be passed regardless.
New York, rather than dealing with their budget issues, has been the busiest state in proposing new game regulations. I don't mean to pick on New York, but three new bills in a month has to be a record. First, we have the seizure warning bill, which is now in its eighth year of potential passage. in short, it requires that video game retailers put up a sign to warn about video games causing seizures in those with Photosensitivity Epilepsy. While this isn't as major a concern to the industry as a whole, I expect the EMA would oppose it if the requirements are too burdensome.
The other two bills, the "racist stereotype bill" and the "glamorization of violence bill," are more or less run of the mill content restrictions. Granted, they are slightly more focused than the other bills that have been struck down, and the volience bill includes a new locked cabinet provision, but for the most part, these will fail for the same reasons that other content bills fail. Ironically, this would likely put New York further into the red, as the ESA will very possibly be awarded legal fees again. If you are a taxpayer in New York state, it may be worth letting your representatives know how you feel about these regulations and their use of taxpayer money. If you choose to do so, please be civil.
Finally, we have Jack Thompson's new law that is slated to go before the legislature in Utah. This is perhaps the most troubling of any current proposals, from what information is available thus far. The actual bill text has not surfaced, so this is an approximation based on a few news reports. Rather than go after game companies and content, it focuses on a relatively novel use of "false advertising" to target retailers, as well as possibly the game companies. Specifically, stores that say they don't sell content to minors and are caught would be penalized. It's unclear whether this would extend to claims of rating inaccuracy against the game publishers as well. Whether this would be seen as merely enforcement of a businesses' own claims as to policy and content or as another attempt to chill free speech is unclear. Once the bill is actually available, LGJ will analyze its legal effects more thoroughly and outline any potential flaws that could make it a likely candidate to be struck down.
I've stated before that I think the Obama administration will impose greater regulations on business of all types; however, games looked like they would be left alone to a greater degree than in past years. This initial slate of bills, though, makes it look like that may be just the contrary. Perhaps legislators have at least learned some lesson about attempting to regulate game content, based on their continual losses in courts nationwide. Of course, this may be a mixed blessing, as those who are intent on regulating games further are coming up with newer, more creative ways to restrict game sales. I'm sure many people are wondering, though, why so many legislators are focusing on games when we have many more pressing and complex problems to deal with; not only on the state and national levels, but on the global level.
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., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
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