LGJ: And still, they want to take away our games

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


As of late, it seems I've become sort of a policy spokesman for issues concerning the government intervening in the game industry, especially in the wake of my debate with Jack Thompson. However, the discussion over whether violent content can be policed under the First Amendment is getting tired, and the courts have universally declared "no" at this point. Rather than go down that road again, I want to discuss two new ways that the government could attack games; one of which came up in the debate itself.

The first is probably the more mundane of the two, and it's the seemingly frequent specter of imposing political correctness on games. In fact, this issue came up yet again this week as a discussion related to not just Resident Evil 5, but also Left 4 Dead 2 and Call of Juarez: Bound in Blood. Of course, the claims here were racism and cultural insensitivity. The irony is that now that the games themselves are seemingly more inclusive of characters other than white males and large breasted women, the assumption is automatically that use of more diverse settings and characters must have malicious motives, rather than crediting the industry for finally being more inclusive.
As Lawrence Walters mentioned in his presentation at GDC, content restrictions across a variety of media types, games included, could be established in order to make everything "politically correct." These regulations would be based in large part on the "assume the worst intentions" attitude so many seem to be taking toward setting, character, and other story and design choices game developers are making. It's also, however, a step I can't imagine the Supreme Court would allow. Restricting what stories can be told, what settings can be used, and what the public can consume is a flagrant violation of First Amendment rights. Ultimately, as I mentioned in the debate, if you don't like content, then don't purchase it. Dollars dictate what is produced, not vice versa. If some games are truly offensive and not purchased, those kinds of games won't be made. If, on the other hand, these complaints are largely to get media attention or create a story on a slow news day, then we shouldn't be seeking government intervention in our free speech rights.

The second possibility of government intervention is one Jack Thompson presented. His theory is that games will be regulated under the Obama administration, not for content, but as a public health issue in response to the obesity epidemic, especially among childhood. Certainly, if you monitor the coverage of President Obama's comments on things like games, there is cause for some concern that he, too, is scapegoating games. To that end, this theory is certainly something that the industry and consumers need to keep an eye on in case of actual developments. However, from both a practical and an economic standpoint, I don't believe anything along these lines will happen.

First, let's examine this practically. How could government go about regulating games for public health? Well, they certainly can't come to our homes and turn off our gaming systems. I don't think I need to explain the list of Constitutional and legal arguments that prevent that from happening. The conspiracy theories related to the smart grid and the government's ability to control what is on and when it's on in your home are years, if not decades from even being possible in terms of infrastructure -- so that's out. About the only way to control what media gets into your home is at the point of sale. The problem is, there is no way the government can ban games altogether, and any more complex restrictions would likely fail as poorly disguised attempts to control speech. The more normative solution, especially in the US, is a word everyone hates: taxes.

When the government wants you to stop doing something, they tax it. Alcohol is taxed. Tobacco is taxed. Certain kinds of less-fuel efficient cars are taxed. In short, the theory is "fewer people buy things at a higher cost." And it's something that can be levied against both retail sales and digital downloads. But now we're getting back to the economics.

To put it bluntly: the economy is terrible right now. The idea that we're going to cripple one of the countries largest industries that is also one of our few global exports is tantamount to hoping the economy just fails. It's the reality that entertainment is our largest export, and to keep fighting the trade gap and keep people in the US employed, we need to continue producing things that are purchased both here and abroad. People in other countries may not be buying American cars, but they certainly are buying American films, movies, and video games.

Of course, perhaps I'm wrong. Perhaps the government's economists aren't paying attention, and the video game tax is coming as the only way they could possibly control our media consumption. I imagine the effect would be twofold: greatly increased used game sales and greatly increased downloadable elements. Of course, the former would drive the latter. If the tax is only on physical goods, then more games will move to digital downloads. If the tax is on the game, but not DLC, then the games will get smaller and likely less expensive, and the DLC will get more expansive and more expensive. This is all just part of the tax planning game. It could even get to the point where the main "game" is sold as a loss leader to get customers to buy DLC, where the profit ultimately rests. Of course, if DLC is taxed as well, someone (probably a lawyer like myself) will come up with a creative way to try to avoid the tax, I'm sure.

It's always difficult to predict what the government may or may not do, or how the courts may or may not rule. The system, however, relies on the vigilance of the public to ensure that our rights are not infringed. In this case, while our right to play may not sound like it's straight out of the Constitution, it is entangled with so many of our other rights that it does have some level of protection. The important thing is that we keep our eye on the activity of our government, because once a freedom is lost, it's far harder to regain. After all, the true check and balance in the US government isn't between the branches of government; it's between the people and the government.

[Image Credit: RIUM+]


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 Munck Carter, LLP, 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.

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 Munck Carter, LLP. 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.