Friday, May 16, 2008

Law of the Game on Joystiq: All derivatives, no math

On this week's Law of the Game on Joystiq, a little chat about derivative works. Read on!

Coming soon to a Law of the Game on Joystiq near you: Fair Use and Machinima. Check back in coming weeks for those two exciting topics.

Monday, May 12, 2008

A Thompson - Methenitis Debate?

Last Friday, I received a call from the one and only Jack Thompson. Apparently, he had read my Open Letter to Glenn Beck, and had taken some offense to some of my statements in the letter. Of course, I intended no personal offense to Jack, and after a fairly lengthy phone call, he suggested that he and I have a public debate sometime in the near future. Having talked to Jack, I think this debate could be really productive as a means to get all sides of the issues out in the open to a larger audience, despite any previous skepticism I may have had.

At this point in time, no time, date, or location has been selected, but rest assured that as soon as details are worked out, they will be published here.

Thursday, May 8, 2008

How to Regulate Games: A Guide for Legislators

After reading about the latest Congressional attempt to go after the game industry, and given my legal background, I've decided to put together a list of the elements necessary to create a video game law that works. I'm sure you might be thinking, "Why, Mark, Why? Why would you do such a thing to your fellow gamers? You're just helping them." It's fairly simple: I'm not opposed to keeping things out of the hands of kids that their parents don't want them to have. On the other hand, I'm also not opposed to letting the parents make the choices. About the only thing I am opposed to is letting the government decide what I or my eventual kids can play. I am an adult, and I can make those decisions for myself and for my children when I become a parent.

The Nine Points for a Successful Video Game Regulation:

1. Forget the idea that you're only regulating games.
If you want a regulation to stick, targeting one media without credible proof of the difference between that media and all of the other things kids are exposed to isn't going to fly. So, if you want to regulate games, the bill needs to also regulate movies, maybe music, and potentially even books. It needs to be a universal approach to put parents in control. Don't forget the TV shows, which should probably also have their ratings appear on the DVD box sets. Whether the TV-MA is equal to an R rating would likely be the subject of some discussion. Based on the latest statistics from the Federal Trade Commission, M rated games are actually sold to minors less often than R rated movies, both as DVDs and movie tickets, and 'Parental Advisory' music. If anything, video games should be the least of your concerns if you are trying to protect the children.

2. Use the industry's rating systems.
The respective industries each have their own rating system, and each system is pretty well adapted for that industry. Not to say these systems are perfect, but they do the job they are intended for. The only real catch is 'Unrated' movies, which may have to default to an 'R' rating. The only industry without a rating system is the print industry (books, graphic novels, etc.), and I'm not sure any legislator is as worried about them as games, movies, or TV. Requiring in-store information about each rating system is probably reasonable as the systems do differ between products.

3. Forget 'banning' anything.
There are plenty of people out there who seem to favor the ability for games to be banned, as they are in other countries. This is the United States of America, the land of the free and the home of the brave. We have a Constitutional right to free speech. You will never succeed in imposing a ban on the kind of content we see in M rated games, so it would be in your best interest to move on to something that is a realistic goal.

4. Forget basing this on obscenity or harm to children. Use commerce.
If this regulation is going to pass, the idea of 'obscenity' won't do it. In fact, trying to base this on anything other than regulating the instrumentalities and channels of commerce pursuant to the commerce clause will likely fail. In fact, I'm not entirely sure even this bill would succeed based on commerce, but a broad based attempt to just prevent the sale of something rated by the industry as for 'adults' to people under 17 seems more realistic than trying to base it on inconclusive studies or other such justifications.

5. Forget the 'AO' rating for games.
The argument is often made that some games should be rated 'AO.' Forget it. An 'AO' rating is basically banning the game from sale, or classifying it with the most hardcore pornography. Unless the game is some sort of sexual simulation, it shouldn't garner an 'AO' rating. In general, the sexual content in an 'M' game falls short of what is in many R rated movies or even what is on television. Arguing that a game like GTAIV should be AO is just an effort in futility.

6. Enforce it only on products that have to be sold to those over 17.
There's a simple reason that this can only be applied to games rated M or movies rated R: most people under 15 or 16 do not have any sort of ID. If you had to get ID from a 13 year old to buy a T game or PG-13 movie, nothing would ever sell because they don't have ID. What we're mostly concerned about is adults buying content that is suitable for adults, correct? Then that's the limitation that should be in place.

7. Enforce it only on sales to those who can't present ID or present fake ID.
This is pretty simple: The goal is to put parents in control. If a parent decides their 16 year old can have an M rated game and buys it for the teenager, it is not the government's place to tell them otherwise. This is a point of sale or retail resale control only. The government has no place invading the living rooms of every family in America in order to override the judgment of parents on what media their child is allowed to consume.

8. This should be a fine only offense, and only a fine against the store.
It is the requirement of the store to perform their due diligence on each sale. Keeping that in mind, this isn't injecting heroin into the veins of children. The idea that it should be a criminal offense is just silly, and the idea that individual cashiers should be punished is equally inane. If a store has a problematic cashier, then the store should be held accountable and be allowed to deal with the cashier as they see fit.

9. Once it's done, leave it alone.
This isn't a "get one foot in the door so we can ban things later" idea. This is the end all, be all solution. As a legislator, you're passing your 'protect the children' bill that will give you some good publicity. It's the Constitution that won't let you go farther based on an objective look at the facts.

In a nutshell, that is a blueprint for a video game regulation that could actually work. Why hasn't anyone tried this yet? Most of the anti-game zealots are too interested in draconian punishments, outright bans, or overly complex and involved systems to actually explore what could practically work and withstand a legal challenge. Granted, it is a compromise between those who are on either extreme, but it is likely a solution that would allow game retailers and developers to stay in business, allow gamers to keep gaming, and allow many in the anti-game crowd to feel like they've protected the children.

I would rather leave the system be, given that in a gaming context it's actually working pretty well. But as it seems that the issue will never go away, I see having to show ID a pretty small price to pay for leaving the bulk of the rest of the system in place.

[Edit: Corrected the point count, Typos.]

Wednesday, May 7, 2008

Law of the Game on Joystiq: Copyright? Copywrong

In this week's Law of the Game on Joystiq, I get back to that always complex copyright issue.

Interested in what a copyright protects in the game you just released? Read on.

Monday, May 5, 2008

An Open Letter to Glenn Beck re: 'Grand Theft Morality' Segment

The following letter has been e-mailed to Mr. Beck directly, and is being re-posted on Law of the Game for my readers to enjoy.


First, let me say I am a fan, and listen to your radio show every day during my commute. However, over the weekend I caught your show from Thursday with the magic of TiVo, and I have to say the ‘Grand Theft Morality’ segment was a real disservice to the public at large. First, your panel was exceedingly one sided and biased. It was the equivalent of discussing global warming with Al Gore and Ted Turner. Given that you have had the authors of ‘Grand Theft Childhood’ on the show, I would have expected a more balanced guest list. Second, it is irresponsible for anyone to bring Jack Thompson on the air anymore. He has been sanctioned in Alabama and Florida and is facing disbarment in Florida for his courtroom shenanigans against the video game industry, which includes attaching homosexual pornography to court filings (which are available to anyone at any age in the general public). Most importantly, with no one there to even speak to the other side of the issue, it was a complete disservice to your viewers. Mr. Thompson makes many allegations which have been disproven, and he presents them as though they are still fact. Most notably, the complete myth that the Virginia Tech shooter was an avid gamer was not only invented by Mr. Thompson, but repeatedly disproven.

Here are some undisputed facts:

1. There is NO LINK between factual statistics on ‘cop killing’ and the release of Grand Theft Auto games. (

2. There is no link between the violent crime rate and video game violence. (

3. There are many studies showing that games don’t have the impact on behavior that people like Mr. Thompson espouse as fact. ( and, among others)

4. In fact, studies show that it is a dysfunctional family that generally creates violence. (

I have actually played Grand Theft Auto IV, which I assume neither you nor your guests have. For the first nearly full hour of the game, you quite literally drive people around, go on a date to a bowling alley (no sex in the entire sequence), and then get into a schoolyard fist fight with some thugs who are beating up your cousin. In terms of the actual storyline, it’s no more violent or sexual than a Martin Scorsese movie. All of the worst things you cite as part of the ‘experience’ are completely optional. Those films garner an ‘R’ rating, and this game has similarly garnered an ‘M’ rating, the game equivalent to ‘R.’

I find it troubling that someone like you would be perfectly fine with Jack Thompson’s government-imposed controls on content while decrying government interference and the ‘nanny-state’ on so many other fronts. No other packaged media (books, DVDs, CDs, etc.) in America has any government-controlled content restriction for the level of content that exists in these games. They are not pornography, and stating otherwise is a gross misrepresentation of fact. The ‘AO’ rating referenced in the segment is generally reserved for games whose content falls into what would be a film rating of ‘XXX.’ Most importantly, a number of states have passed laws similar to the one written by Mr. Thompson, imposing government regulation on games, and all of those laws have been struck down by the courts, many on First Amendment grounds. As someone who has repeatedly denounced the ‘fairness doctrine’ based on its chilling effect on free speech, I would hope your view would extend to other media in addition to your own.

Glenn, we’re not talking about placing this game deliberately in the hands of kids. Many stores do actually require ID to purchase games and movies that are rated M and R respectively. Ultimately, though, it should be the responsibility of the parents to monitor their child’s media consumption. The rating systems on TV, movies, and games make it much easier for a parent to do so, and if the point of your piece was simply to make parents aware, then your method of doing so was exceptionally overbroad. Telling your viewers to be careful if their husbands are playing this game was just absurdity. I have been playing video games for decades. I haven’t murdered anyone yet, and I have no plans to murder anyone in the immediate future. When any new form of media has been released, the public has always been quick to blame all of society’s ills on it until, eventually, people realize that it is not the media causing the problem, rather some other aspect of society. Putting on segments that only serve to increase the fear and unfounded hate of not only the games but those who play them has no benefit to the public at large. I hope that future segments dealing with the issue of video games would at a minimum include more credible anti-gaming guests, if not guests on both sides of the issue.

Mark Methenitis

Thursday, May 1, 2008