Wednesday, June 25, 2008

Law of the Game on Joystiq: No Freedom of Trash Talk

On this week's Law of the Game on Joystiq, we discuss the ever-popular 'freedom of speech' argument with respect to Xbox Live trash talking and forum posts.

Read on!

Tuesday, June 24, 2008

Blog of Note

Apparently, Law of the Game was the "Blog of Note" for June 19, 2008. Thank you for all of the kind words and well wishes from the visitors sent this way from Blogs of Note.

Thursday, June 19, 2008

Friday, June 13, 2008

How to Regulate Games: A Guide for Legislators - A Followup

I've noticed that a lot of people have commented on the various reproductions of my How to Regulate Games: A Guide for Legislators since its posting a few weeks ago. There are, however, a number of points I'd like to clarify about that post and with regard to some of the comments I've seen on the stories about that article.

1. I am not pro-video game legislation. In fact, I think it's largely unnecessary and that most of the proposed bills have been a wast of the taxpayer's money in terms of legislative and judicial effort.

2. The main point of the piece was to point out the flaws that bill after bill have had. I generally expect people to learn from the mistakes of others rather than continue to repeat them.

3. Based on the FTC statistics on game sales, the ESRB and retailers are basically accomplishing the end goal of any sort of reasonable legislation pretty well. Is it perfect? No, but even items which are regulated (alcohol, tobacco, p0rnography) still end up in the hands of minors.

4. The 'AO' rating, unless stores begin to sell the games, is akin to classifying a game as pornography. Hence, that is why I said it had to reach the level of sexual simulation.

5. There was significant concern over 'delegation of authority' by Congress to a non-governmental body. The system I proposed is a quasi-hybrid of the FCC TV content system and the regulations on, for example, franchising. While an independent body is rating the game, the government is merely limiting the sale of a designated product ('M' rated games). Right now, all content on TV (other than sports and news) must be rated, broadcast or cable. Of course, the hybridization comes in from that being regulated on the basis of spectrum and this being regulated on the basis of commerce. Given that an actual sales transaction is involved, I think this has a much better tie to commerce than, say, Lopez. It's my personal opinion that it would pass judicial muster, but only an actual test would tell. I have not run across a case that follows this closely enough to be able to tell. The only alternatives would be government game rating, which seems like an additional waste of taxpayer money, or a government absorption of the ESRB and MPAA, which seems unlikely. What hasn't been proposed, but may also pass muster, would be a statutory definition that is then applied to the rating, which could then be applied to each title, but this is fairly complex and convoluted and lacks a resolution if the statute and the game rating don't agree.

6. Some question was brought up as to appeals. The only place I would see an appeal is when a consumer feels the rating to be too low, thereby seeking a judicial remedy to have the game rated higher. Any squabbles between the ESRB and the game maker would be handled as they are now.

7. To those who cite the First Amendment, I think the argument can be made that restricting access to children is, at best, similar to other content restrictions with respect to children or, at worst, a time-place-manner restriction. Remember, no games are banned under those 9 points.

8. Some of the citations to the First Amendment and delegation of authority points cited Engdahl v. City of Kenosha, 317 F.Supp. 1133 (E.D. Wis. 1970), which didn't allow the city to use MPAA ratings to bar kids from movies, but this case and statute were based on obscenity. There is no basis in obscenity in my 9 points.

I hope this clarifies some of my previous ambiguities.

Thursday, June 12, 2008

A Thompson - Methenitis Debate - The Rationale

A number of the comments to my 'Thompson - Methenitis Debate' post asked that I clarify my new position with respect to my previous skepticism. Hopefully, this post will resolve that issue.

1. Properly planned, the event may reach more people in the mainstream.
I think proper venue and ample notification of the event could make this reach more people outside of the gamer culture. Moreover, if we make the debate available online (transcript, video, etc.), it would be a resource those looking to defend games could point to on a regular basis.

2. We, as gamers, would be taking advantage Jack's seemingly endless publicity.
The fact is that no matter what happens, it seems that Jack will always have a spot on TV and radio. He is close to being a household name. Rather than viewing this as giving him more publicity, I really think it is an opportunity to take advantage of his publicity for our gain.
3. Jack's position may not be as hardline as many people think.
In speaking to Jack, I get the feeling that his position isn't nearly as anti-game as it's often made out to be. At a bare minimum, getting him to set out his actual stance in his own words would likely make the debate much clearer. More importantly, if his position is exactly what we think, is there really any loss to the gaming community by his stating it again?

4. It would be fun, wouldn't it?
Let's be honest; it would probably be a pretty entertaining event. Jack hasn't been open to many events like this, and it would be the first time he's debating another attorney on the issue. I'm sure a lot of people would minimally find it interesting. And is entertainment such a bad reason?

In short, that is the basis for the debate.

Law of the Game on Joystiq: May the Enforce Be With You

This week's Law of the Game on Joystiq talks about enforcement and intellectual property.

Read on!

Wednesday, June 11, 2008

UMG v. Augusto: Big Win for Consumer Rights.

Recently, I wrote a piece on Joystiq which referenced the then still pending UMG v. Augusto suit. The verdict is in on that case, and it's a big win for consumer rights. The motion for summary judgment is available here, but I will summarize it for you. Promo CDs are in fact governed by the first sale doctrine even though they are never sold to the consumer. This means that, by extension, promotional DVDs and games are also covered by the first sale doctrine in the same manner. So long as the producer transfers title in those items to someone else, then that satisfies first sale. Should the producer actively recover the products, then first sale would not apply, but since these items are distributed without any intention of being returned to the producer, then it is considered sold.

The victor here is clearly the consumer. This means that if you get your hands on a promotional CD, DVD, or game, even one labeled not for resale, you can keep it or sell it on eBay without worry about repercussions from the game's publisher. More importantly, it prevents an expansion of the first sale doctrine, which could have limited your ability to resell games you've purchased at all. Game resellers, both those on eBay and the major retail chains, should be applauding this decision as it supports their livelihood.

This was a big win for consumer rights, and a big win for all of us as consumers.

Thursday, June 5, 2008

Law of the Game on Joystiq: Much Ado About Game Night

This week's Law of the Game on Joystiq covers having a 'game night' at your local library, church, or other such public place. It also touches on whether shrink wrap contracts are enforceable.

Read on!