Video games have come a long way. Within decades, they have gone from a fringe hobby to a major industry. But as sales increased and the market expanded, small and significant debates took place. As a child, your parents are gatekeepers between you and the world at large. If you had your preference, you might wear a motorcycle helmet and a clown suit to school, eat candy for lunch, and train the dog to do your chores.
But, you do not have your preference. The adults in your life make decisions on the clothes you wear, the food you eat, and your behavior. For as long as video games have been around, those same adults have decided, either actively or passively, whether video games are right for their kids. If they are, they then determine what types of games are acceptable. This might have resulted in some slammed doors and harsh words over your copy of Mortal Kombat, but it was a matter to be worked out within your family, and not something left to the government.
The latest instance of legislators attempting to change that balance of power was a proposed Oklahoma tax on “violent" video games. It is “proposed," because, at present, it has been defeated in committee. The law, the ideas behind it, and the recent decisions are an opportunity to consider the status of video games as protected free speech. Brown v EMA was a huge step forward for gaming, and will be powerful precedent demanding consideration when regulation is proposed. But this debate is far from over.
For background, we should first look at what happened in Brown v EMA. (Mark did a great recap of the case on Joystiq.) California Assembly Bill 1179, passed in 2005, banned the sale of violent videogames to minors, ordering application of labels to offending titles, and fining retail employees up to $1,000 per violation. The law was struck down, first in the District Court for the Northern District of California, and then in the Ninth Circuit Court of Appeals. The Supreme Court agreed to take the case, heard arguments in November of 2010, and released their decision in June of 2011.
In upholding the lower courts, the majority (7-2) refused to consider video games the protections of the First Amendment merely because of their unique appeal to minors. It was a sweeping acknowledgement of games as expression worth protection. Decisions about what to say and how to say it “are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority." This type of legislation receives strict scrutiny, and could not survive. The State has a legitimate purpose in protecting children, but “that does not include a free-floating power to restrict the speech to which children may be exposed." The interactive nature of games did not change that. Fees and penalties added up to $2 million for California.
Oklahoma House Bill 2649 proposed a 1% surtax on any video game rated Teen or higher. Proposed by Representative Will Fourkiller, the money was to support outdoor and counseling programs. On one hand, 1% would end up being about sixty cents for your average $60 game. That is not an amount of money likely to influence any buying decisions. This law was not as broad as California’s in Brown. But as people pointed out, for a law that claimed to target obesity, it would tax Get Up and Dance and Zumba Fitness 2. Both involve moving around, not sitting. Very few children buy their own video games, and for most that do they buy them with money given by their parents. The tax falls on adults, not children.
The common sense response to the proposal in the notes from the subcommittee showed skepticism on whether games deserved singling out. “Why not French fries or rap music or movies?" (At the same time especially!) It narrowly failed, 5 to 6. It may be the dissenters knew that if they ended up defending the legislation in court, it could get very expensive. But the reopening of the issue of whether there is correlation between playing video games and health problems is one worth considering.
Many things, in excess, are bad. Too much junk food is bad. So is television, and video games. But legislation designed to influence the decisions people make about these issues of child rearing have historically failed. The question of when it is appropriate for a child to consume “violent" entertainment is an important one. But ample entertainment already accessible to children is violent, as the majority noted in Brown. Involved parents make those decisions. Lawmakers have since backed out of similar proposals. It remains to be seen how other states will react.
Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.
Showing posts with label Video Game Regulation. Show all posts
Showing posts with label Video Game Regulation. Show all posts
Tuesday, March 27, 2012
Wednesday, February 29, 2012
Bitcoins and Prepaid Access Rules: Headed for a Collision
One of the challenges of the Web is making a business plan while wondering if it will stay legal. Technical adaptations outpace the glacial process of legal evolution. A program can be written and distributed in hours, but legal updates require either legislation or a precedential decision. This can be particularly befuddling when a new technical tool comes along. The options can be to make an investment now and risk spending money on something that may not be legal, or wait and miss an opportunity to get in on the ground floor.
The Financial Crimes Enforcement Network (FinCEN) within the Treasury Department took a large step towards closing a legal gap in issuing their new prepaid access rules, handily summarized in this excellent guide prepared by Pillsbury Winthrop Shaw Pittman LLP. All of the requirements detailed therein came into effect in late September of 2011, and the registration requirement goes into effect at the end of this March. To boil it down, the Treasury Department doesn’t like people using prepaid access (gift cards, e-wallets, virtual currency, etc.) to launder money or facilitate other crimes. Without this regulation, FinCEN is concerned people supporting illegal activities could continue to use these systems to ”clean” thousands of dollars a month. To slow down the flow, the new regulations require anyone who is providing prepaid access to register with the Federal government, maintain records of all transactions (including indentifying information of anybody participating), and put procedures in place to verify customers. There are exemptions to these requirements, primarily in limiting transaction values and/or keeping systems entirely “closed loop,” which would generally be more like a store-based gift card system.
The downside of this is easy to see: nobody in business is a huge fan of extra government involvement or additional administrative burden. This will require anyone in the business of prepaid access to register with the government, and keep robust records on their customers, including name, date of birth, address, and any identification numbers. Possibly even more onerous is the requirement to verify the identity of anyone participating in the prepaid access; that’s not necessarily an easy thing to do. Some businesses might argue that their very appeal to customers is the fact that their use is anonymous and outside the more typical, public financial systems.
Despite this burden, these regulations are, to some degree, a healthy measure for anyone providing prepaid access. Keeping records transactions and who is participating is generally not a bad idea, even if it does involve more work. For example, if a dispute arose, that information could be quite handy. However, not every potential customer may view these regulations in the same light. You might be annoying a customer who started using your prepaid debit card because he wanted a financial tool a bit more off the grid or for more limited places that he thought were less secure, like an ewallet. But (hopefully) nobody is choosing to offer that kind of tool specifically because it appeals to terrorists, drug cartels, and other bad people. There is always a fine line between prudent regulation to prevent bad things and Person of Interest/1984 surveillance.
Any regulatory scheme is not going to work all of the time. Criminals will use fake identities to make prepaid access work for them, but a five year transaction record creates the paper trail that will help law enforcement track illicit behavior. It makes sense to explicitly obligate people marketing prepaid access to build up infrastructure and policies preventing too-easy international transfers, or high volume swaps in a short period of time. Without a ramp up, there would never be usable data to track. The regulations also contain practical exceptions for health care flex-spending accounts, and “closed loop” programs like campus dining dollar accounts, defined-store gift cards, and transportation cards. These regulations have been, in many ways, sensibly written to limit the more obvious problems, while trimming the burden on things that are not inherently problematic.
One key detail is a pathway within the regulations left open to some of the potential regulatory burden is that you can make it impossible to be used before verification of customer identification information. So, if you created procedures and policies making it impossible for anyone to use your system without you first verifying their identity, you would be in compliance (though compliance is more complex than just this factor). The verification of that identity means that you would be, in a practical sense, cooperating with a lot of the regulation anyway: you would agree that you could verify who was participating. So if anything seemed fishy, law enforcement would again, be coming to you.
An interesting undercurrent to these issues is the odd case of Bitcoins. While frequently volatile, they made a solid push to some more stability at the end of the year. Of course, it shouldn’t be too surprising that Bitcoins are in legal limbo as Senator Charles Schumer discussed them along with online drug hub Silk Road last June. It is up for debate whether or not Silk Road actually does what it claims. But, it is unfortunate to see a cleverly engineered development like Bitcoins be publicly associated with something that exists to be shut down by government regulators. Many have speculated since the beginning that it was a matter of time before authorities dropped the hammer on the online currency. Any technical development that grew out of a distrust of regulation and central control ironically places itself in line for regulation and central control.
The argument ready for any Bitcoin advocate against applying the new regulations to the currency is that it’s not prepaid access at all: it’s a currency unto itself. The fluctuations in value could be interpreted to mean it is wholly unlike a system that depends on cash infusions and goes back to being cash, eventually. Bitcoins could stay Bitcoins forever. But it would be foolish to think that any government would consider Bitcoins a valid currency, especially since the anonymity built into Bitcoin makes it ripe for the money laundering concerns that prompted the Treasury to get serious on these issues. These are similar to the concerns we have seen with Linden Dollars in Second Life over the years. The challenge is first, that Bitcoins are de-centralized, unlike any other virtual currency presently in circulation. There is no one business entity propping this system up, meaning the way for regulators to try to wipe them out of existence won’t be as obvious. Most entities that accept Bitcoins as a valid form of payment are tiny web-only retailers that often use them to monetize web-services. Bitcoin users seem not the type to ever accept the reporting and registration requirements, so it would be reasonable to assume that any interaction of the government with the system would be try to wipe them out. But of equal concern is whom to apply the regulations to, since it is arguable there is no provider of prepaid access or seller or prepaid access under the Bitcoin system.
The group that should be most wary of Bitcoins is any retailer considering accepting them. A restaurant in Manhattan famously experimented with the idea last summer. (We called, and they do not take Bitcoins anymore.) While it could be a great way to get some geeks in your store and drum up some press about your business, it is frankly more trouble than it is worth. Bitcoins may be more stable than they have been in the past, but, as the article points out, you take a big risk on taking a hit if the value drops.
But Bitcoins are unlikely to be a majority of anyone’s balance sheet. The bigger problem is being associated with a currency that seems bound not to last much longer, at least in its current state. This issue is yet unsettled, but the government has made clear they’re in no mood to tolerate electronic tools that can be exploited for money laundering. Outside of these regulatory challenges, recent events indicate even more instability in the market. Bitcoin supporters suffered a heavy setback when exchange site Tradehill suspended trading after e-wallet service Paxum departed the Bitcoin market. For Paxum, the final straw was that their banking partners were deeply uneasy about who was pouring money into the currency and why. Paxum’s exit hurt Tradehill, and being defrauded for $100,000 by a payment processor did not help either. Who would be eager to dive into a market so fraught with instability?
Regulation takes time, but Bitcoins seem bound for the chopping block. Bitcoins aside, the progress in money transmission and prepaid access is not likely to stop, especially since it appears Facebook may be laying some groundwork in the payments space. Law of the Game will continue to follow these issues and keep you updated.
Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.
Edited 3/3/2012 - Fixed Broken Links
The Financial Crimes Enforcement Network (FinCEN) within the Treasury Department took a large step towards closing a legal gap in issuing their new prepaid access rules, handily summarized in this excellent guide prepared by Pillsbury Winthrop Shaw Pittman LLP. All of the requirements detailed therein came into effect in late September of 2011, and the registration requirement goes into effect at the end of this March. To boil it down, the Treasury Department doesn’t like people using prepaid access (gift cards, e-wallets, virtual currency, etc.) to launder money or facilitate other crimes. Without this regulation, FinCEN is concerned people supporting illegal activities could continue to use these systems to ”clean” thousands of dollars a month. To slow down the flow, the new regulations require anyone who is providing prepaid access to register with the Federal government, maintain records of all transactions (including indentifying information of anybody participating), and put procedures in place to verify customers. There are exemptions to these requirements, primarily in limiting transaction values and/or keeping systems entirely “closed loop,” which would generally be more like a store-based gift card system.
The downside of this is easy to see: nobody in business is a huge fan of extra government involvement or additional administrative burden. This will require anyone in the business of prepaid access to register with the government, and keep robust records on their customers, including name, date of birth, address, and any identification numbers. Possibly even more onerous is the requirement to verify the identity of anyone participating in the prepaid access; that’s not necessarily an easy thing to do. Some businesses might argue that their very appeal to customers is the fact that their use is anonymous and outside the more typical, public financial systems.
Despite this burden, these regulations are, to some degree, a healthy measure for anyone providing prepaid access. Keeping records transactions and who is participating is generally not a bad idea, even if it does involve more work. For example, if a dispute arose, that information could be quite handy. However, not every potential customer may view these regulations in the same light. You might be annoying a customer who started using your prepaid debit card because he wanted a financial tool a bit more off the grid or for more limited places that he thought were less secure, like an ewallet. But (hopefully) nobody is choosing to offer that kind of tool specifically because it appeals to terrorists, drug cartels, and other bad people. There is always a fine line between prudent regulation to prevent bad things and Person of Interest/1984 surveillance.
Any regulatory scheme is not going to work all of the time. Criminals will use fake identities to make prepaid access work for them, but a five year transaction record creates the paper trail that will help law enforcement track illicit behavior. It makes sense to explicitly obligate people marketing prepaid access to build up infrastructure and policies preventing too-easy international transfers, or high volume swaps in a short period of time. Without a ramp up, there would never be usable data to track. The regulations also contain practical exceptions for health care flex-spending accounts, and “closed loop” programs like campus dining dollar accounts, defined-store gift cards, and transportation cards. These regulations have been, in many ways, sensibly written to limit the more obvious problems, while trimming the burden on things that are not inherently problematic.
One key detail is a pathway within the regulations left open to some of the potential regulatory burden is that you can make it impossible to be used before verification of customer identification information. So, if you created procedures and policies making it impossible for anyone to use your system without you first verifying their identity, you would be in compliance (though compliance is more complex than just this factor). The verification of that identity means that you would be, in a practical sense, cooperating with a lot of the regulation anyway: you would agree that you could verify who was participating. So if anything seemed fishy, law enforcement would again, be coming to you.
An interesting undercurrent to these issues is the odd case of Bitcoins. While frequently volatile, they made a solid push to some more stability at the end of the year. Of course, it shouldn’t be too surprising that Bitcoins are in legal limbo as Senator Charles Schumer discussed them along with online drug hub Silk Road last June. It is up for debate whether or not Silk Road actually does what it claims. But, it is unfortunate to see a cleverly engineered development like Bitcoins be publicly associated with something that exists to be shut down by government regulators. Many have speculated since the beginning that it was a matter of time before authorities dropped the hammer on the online currency. Any technical development that grew out of a distrust of regulation and central control ironically places itself in line for regulation and central control.
The argument ready for any Bitcoin advocate against applying the new regulations to the currency is that it’s not prepaid access at all: it’s a currency unto itself. The fluctuations in value could be interpreted to mean it is wholly unlike a system that depends on cash infusions and goes back to being cash, eventually. Bitcoins could stay Bitcoins forever. But it would be foolish to think that any government would consider Bitcoins a valid currency, especially since the anonymity built into Bitcoin makes it ripe for the money laundering concerns that prompted the Treasury to get serious on these issues. These are similar to the concerns we have seen with Linden Dollars in Second Life over the years. The challenge is first, that Bitcoins are de-centralized, unlike any other virtual currency presently in circulation. There is no one business entity propping this system up, meaning the way for regulators to try to wipe them out of existence won’t be as obvious. Most entities that accept Bitcoins as a valid form of payment are tiny web-only retailers that often use them to monetize web-services. Bitcoin users seem not the type to ever accept the reporting and registration requirements, so it would be reasonable to assume that any interaction of the government with the system would be try to wipe them out. But of equal concern is whom to apply the regulations to, since it is arguable there is no provider of prepaid access or seller or prepaid access under the Bitcoin system.
The group that should be most wary of Bitcoins is any retailer considering accepting them. A restaurant in Manhattan famously experimented with the idea last summer. (We called, and they do not take Bitcoins anymore.) While it could be a great way to get some geeks in your store and drum up some press about your business, it is frankly more trouble than it is worth. Bitcoins may be more stable than they have been in the past, but, as the article points out, you take a big risk on taking a hit if the value drops.
But Bitcoins are unlikely to be a majority of anyone’s balance sheet. The bigger problem is being associated with a currency that seems bound not to last much longer, at least in its current state. This issue is yet unsettled, but the government has made clear they’re in no mood to tolerate electronic tools that can be exploited for money laundering. Outside of these regulatory challenges, recent events indicate even more instability in the market. Bitcoin supporters suffered a heavy setback when exchange site Tradehill suspended trading after e-wallet service Paxum departed the Bitcoin market. For Paxum, the final straw was that their banking partners were deeply uneasy about who was pouring money into the currency and why. Paxum’s exit hurt Tradehill, and being defrauded for $100,000 by a payment processor did not help either. Who would be eager to dive into a market so fraught with instability?
Regulation takes time, but Bitcoins seem bound for the chopping block. Bitcoins aside, the progress in money transmission and prepaid access is not likely to stop, especially since it appears Facebook may be laying some groundwork in the payments space. Law of the Game will continue to follow these issues and keep you updated.
Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.
Edited 3/3/2012 - Fixed Broken Links
Tuesday, July 5, 2011
Saturday, October 24, 2009
LGJ: Revenge of the Regulators
Thursday, July 9, 2009
The Thompson - Methenitis Debate Video is Forthcoming
I know many folks on the internet are waiting for the video of the debate I had with Jack Thompson last weekend on the 4th of July at the ScrewAttack Gaming Convention in Dallas. I've been told by some of the folks at ScrewAttack that both an edited and an unedited version of the video will be up on their site next week.
In the mean time, I did find this seven minute clip from the latter half of the debate. I also did some post-debate commentary on this week's Late Nite JengaJam. Hopefully those two will tide everyone over until the full video is available online.
For those who didn't make it out to SGC, the event was outstanding, and the entire ScrewAttack crew deserves any and all praises you may have seen on their forums about the event. I also really appreciate Jack for making the trip out to the convention and participating in the debate.
As soon as the debate footage is available, I will make sure to post the appropriate links here on Law of the Game.
In the mean time, I did find this seven minute clip from the latter half of the debate. I also did some post-debate commentary on this week's Late Nite JengaJam. Hopefully those two will tide everyone over until the full video is available online.
For those who didn't make it out to SGC, the event was outstanding, and the entire ScrewAttack crew deserves any and all praises you may have seen on their forums about the event. I also really appreciate Jack for making the trip out to the convention and participating in the debate.
As soon as the debate footage is available, I will make sure to post the appropriate links here on Law of the Game.
Saturday, May 30, 2009
LGJ: Supreme Court Decision Doesn't Bode Well
This week's LGJ gets into a recent US Supreme Court decision and how it may offer a glimpse of how the court could potentially treat similar issues in games, future interactive broadcast TV, and even a bit about potential new justice Sonia Sotomayor.
Read on!
Read on!
Thursday, February 12, 2009
LGJ: Jack Thompson's Utah 'game bill'
The latest LGJ is a more in-depth look at the bill Jack Thompson was behind in Utah and some of its major flaws.
Read on!
In the period of time between my writing that piece and its publication, GamePolitics has published another commentary on the issue. While I don't necessarily disagree with the intent theory posed there, I believe the state would argue (and I'm certain Jack would argue) that by showing a pattern of 'mistakes' based on a series of stings, that the retailer has no intent to follow through on their advertised policy. In the alternative, I could see the argument being made that while most false advertising is a specific intent offense, this type of goodwill based advertising is not given that it's not targeted to a specific event or sale but rather to artificially boost the store's reputation at large. I do think the noted 'fallacy' of tying the advertising to subsequent conduct isn't a fallacy insomuch as it is valid if the court wanted to accept this offense as one of strict liability, which is what it appears the goal of the provision is. This also completely invalidates the concept of intent, as strict liability requires no intent only that the conduct occurred. It would be an interesting new realm, as this would be a sort of self imposed strict liability in that it only applies to the extent the seller represents that they act in this manner.
Regardless of the outcomes of the attempts to invalidate the statute legally, my main objective in my column was to demonstrate the fact that from a practical standpoint, the statute can be completely avoided without much difficulty.
Read on!
In the period of time between my writing that piece and its publication, GamePolitics has published another commentary on the issue. While I don't necessarily disagree with the intent theory posed there, I believe the state would argue (and I'm certain Jack would argue) that by showing a pattern of 'mistakes' based on a series of stings, that the retailer has no intent to follow through on their advertised policy. In the alternative, I could see the argument being made that while most false advertising is a specific intent offense, this type of goodwill based advertising is not given that it's not targeted to a specific event or sale but rather to artificially boost the store's reputation at large. I do think the noted 'fallacy' of tying the advertising to subsequent conduct isn't a fallacy insomuch as it is valid if the court wanted to accept this offense as one of strict liability, which is what it appears the goal of the provision is. This also completely invalidates the concept of intent, as strict liability requires no intent only that the conduct occurred. It would be an interesting new realm, as this would be a sort of self imposed strict liability in that it only applies to the extent the seller represents that they act in this manner.
Regardless of the outcomes of the attempts to invalidate the statute legally, my main objective in my column was to demonstrate the fact that from a practical standpoint, the statute can be completely avoided without much difficulty.
Tuesday, February 10, 2009
LGJ: More game laws?
This week's LGJ is a survey of a number of proposed game laws, including a new proposal from Jack Thompson.
Read on!
Read on!
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.
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, 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.]
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.]
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.
Mark Methenitis
Glenn,
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
Here are some undisputed facts:
1. There is NO LINK between factual statistics on ‘cop killing’ and the release of Grand Theft Auto games. (http://gamepolitics.com/2008/04/29/fbi-stats-dont-support-claims-of-gta-series-as-cop-killing-simulation/)
2. There is no link between the violent crime rate and video game violence. (http://gamepolitics.com/2008/04/12/comparing-violent-crime-to-violent-game-releases/)
3. There are many studies showing that games don’t have the impact on behavior that people like Mr. Thompson espouse as fact. (http://gamepolitics.com/2008/04/02/new-study-game-violence-makes-players-less-angry/ and http://content.apa.org/journals/emo/8/1/114, among others)
4. In fact, studies show that it is a dysfunctional family that generally creates violence. (http://gamepolitics.com/2008/03/25/study-games-dont-spark-violence-but-dysfunctional-families-do/)
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
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
Wednesday, March 19, 2008
Monday, January 14, 2008
Best Buy Video Game Ratings Shenanigans
An interesting anecdote has appeared on the Consumerist blog. To summarize the story, a 21 year old went to a local Best Buy to purchase a copy of Assassin's Creed (Rated M) and a Xbox Live Gold card. The protagonist of our story had his 15 year old brother in tow, as he was taking him to dinner. Upon getting to the counter, the clerk made a series of loud statements to everyone in line that he was "illegally purchasing a video game for a minor." After a string of banter, the 15 year old left the store, the patron waited in line again only to have the store refuse him yet again, this time on the half-baked theory that the gift cards were "stolen." Needless to say, the customer left the store, went to a different Best Buy, and purchased the game without an issue.
I must say this is one of the worst cases of store clerk vigilante-ism I've run across, and is disturbing on a number of levels. First and foremost, the rating system is voluntary. No state has yet passed any regulation barring the sale of any game to anyone that has withheld scrutiny in a court of law. To have clerks declaring random acts "illegal" on their own authority is disturbing, and the fact that the manager saw no reason to rectify the situation (or, for that matter, also bought into this arbitrary declaration of legality) speaks very poorly of the management of the store. More importantly, it may suggest that Best Buy's corporate policy may need to be revisited and revamped to have a clear, uniform policy in stores nationwide. Second, this particular anecdote rises past the level of restriction I've seen some store clerks operate under with regard to alcohol and tobacco. Should a law ever be passed, it raises serious concern that minors won't even be allowed in the store, which would essentially end the sale of M rated games entirely. Third, it's further discrimination against the medium. Would this clerk have even blinked if it were an R rated movie rather than an M rated game? I somehow doubt it.
While I'm sure this anecdote will make a certain attorney happy, the rest of the gaming community should keep a vigilant eye out to prevent these kinds of problems from being widespread. Moreover, when issues such as these are made public, the corporate offices of the retain store should be made keenly aware that it will cost them sales if they allow their store clerks to harass paying customers.
I must say this is one of the worst cases of store clerk vigilante-ism I've run across, and is disturbing on a number of levels. First and foremost, the rating system is voluntary. No state has yet passed any regulation barring the sale of any game to anyone that has withheld scrutiny in a court of law. To have clerks declaring random acts "illegal" on their own authority is disturbing, and the fact that the manager saw no reason to rectify the situation (or, for that matter, also bought into this arbitrary declaration of legality) speaks very poorly of the management of the store. More importantly, it may suggest that Best Buy's corporate policy may need to be revisited and revamped to have a clear, uniform policy in stores nationwide. Second, this particular anecdote rises past the level of restriction I've seen some store clerks operate under with regard to alcohol and tobacco. Should a law ever be passed, it raises serious concern that minors won't even be allowed in the store, which would essentially end the sale of M rated games entirely. Third, it's further discrimination against the medium. Would this clerk have even blinked if it were an R rated movie rather than an M rated game? I somehow doubt it.
While I'm sure this anecdote will make a certain attorney happy, the rest of the gaming community should keep a vigilant eye out to prevent these kinds of problems from being widespread. Moreover, when issues such as these are made public, the corporate offices of the retain store should be made keenly aware that it will cost them sales if they allow their store clerks to harass paying customers.
Wednesday, December 26, 2007
Wisconsin's Game Tax - Sin vs. Luxury vs. Lunacy
The proposed "Game Tax" from Wisconsin state senator Jon Erpenbach has gained quite a bit of attention, and accordingly, I thought it was worth addressing a few key points. First, I'm sure many folks are wondering why they should care about a tax in a state in which they don't live. The simple answer is that tax ideas seem to spread. If Wisconsin adds such a tax, it will only be a matter of time before a dozen other states follow suit. In short, the long term picture is not pretty for gamers if one state begins taxing games.
The second question is what type of tax is this? There are two likely candidates, those being the "Sin Tax" and the "Luxury Tax." The concept of a sin tax is that because the government wants to discourage a behavior and because that behavior has a proven, clearly demonstrated, and direct negative impact on society, the government taxes the item to both discourage the behavior and offset the negative impact. For example, cigarettes are taxed because they are linked to lung cancer. Alcohol is taxed because drunk drivers kill thousands every year. Video games, however, would be taxed due to an unproven link to a theoretical change in behavior for a small number of users. The link is not nearly as defined as, say, drinking to drunk driving.
The other possibility is considering it a luxury tax. The idea here is that some things are just so extravagant that people should pay extra, or from a different viewpoint, that the people who want to buy certain things are well enough off that they can afford to pay more taxes. A good example of products often hit with a luxury tax are expensive cars. The assertion here would be that video games are a "luxury item," and therefore are so unnecessary that gamers should have to pay more for them. However, given that books, music, movies, and all other forms of entertainment are not subject to such a tax, it does not follow that any aspect of the "video game" so separates the medium from other forms of entertainment as to draw the line there.
This would appear to be nothing more than another cheap shot at a scapegoated industry for the basic purpose of continuing to fill the already bloated public coffers, which serves to continue to perpetuate the problem of government over-spending. Far be it for me to dictate public policy in Wisconsin, but a video game tax is simply not a logical answer to the issue presented. I'm certain there are many other ways to fund the "keep non-violent juvenile offenders out of adult prisons" program.
[Via GamePolitics]
The second question is what type of tax is this? There are two likely candidates, those being the "Sin Tax" and the "Luxury Tax." The concept of a sin tax is that because the government wants to discourage a behavior and because that behavior has a proven, clearly demonstrated, and direct negative impact on society, the government taxes the item to both discourage the behavior and offset the negative impact. For example, cigarettes are taxed because they are linked to lung cancer. Alcohol is taxed because drunk drivers kill thousands every year. Video games, however, would be taxed due to an unproven link to a theoretical change in behavior for a small number of users. The link is not nearly as defined as, say, drinking to drunk driving.
The other possibility is considering it a luxury tax. The idea here is that some things are just so extravagant that people should pay extra, or from a different viewpoint, that the people who want to buy certain things are well enough off that they can afford to pay more taxes. A good example of products often hit with a luxury tax are expensive cars. The assertion here would be that video games are a "luxury item," and therefore are so unnecessary that gamers should have to pay more for them. However, given that books, music, movies, and all other forms of entertainment are not subject to such a tax, it does not follow that any aspect of the "video game" so separates the medium from other forms of entertainment as to draw the line there.
This would appear to be nothing more than another cheap shot at a scapegoated industry for the basic purpose of continuing to fill the already bloated public coffers, which serves to continue to perpetuate the problem of government over-spending. Far be it for me to dictate public policy in Wisconsin, but a video game tax is simply not a logical answer to the issue presented. I'm certain there are many other ways to fund the "keep non-violent juvenile offenders out of adult prisons" program.
[Via GamePolitics]
Thursday, November 8, 2007
The "Jack Thompson Debate" Idea is Over-Rated
GamePolitics has run a number of stories on the rumor, later squashed, of a Jack Thompson debate at the GDC, in addition to the debate that already occurred. In fact, GP's recent poll is on this very topic. I'd like to voice an opinion that really hasn't surfaced in any of the gaming media on this topic.
The Jack Thompson Debate at GDC would be a waste of time and have no real benefit for the industry.
I'm sure more than a few readers may be outraged by this statement, but I have four specific reasons for my position.
1. It won't change Jack's position.
It has become readily apparent that no amount of reason, logic, or factual evidence, much less the vocal and emotional pleas from fans, will sway Mr. Thompson. He will, in all likelyhood, hold the same stance from now until his death in the distant future. And in the mean time, he will use every waking moment to fight what he considers the "good fight." Mr. Thompson is the definition of a zealot, and although another debate will likely serve point 4, it won't change Mr. Thompson's mind. In fact, I doubt his mind would change if he soundly lost a million debates.
2. It won't reach the mainstream media.
Ultimately, this whole issue is about the perception of the video game in the main stream media and in the main stream American's mind. A debate at a conference of game developers won't make it on CNN or FoxNews or MSNBC. At best, it will make its rounds through the game fan circles, the game media, and maybe the technology media crowd, who are already overwhelmingly opposed to Mr. Thompson's position. The impact on society at large would more than likely be negligible.
3. It gives Jack more free press and attention.
I know my mother always told me to ignore a bully. By bringing in Mr. Thompson for a debate, it will make him the center of attention. And, when asked about the event, I'm sure he will spin his take on the event to his benefit, no matter the outcome. It's another line for his resume that we don't need to provide.
4. Jack would lose, but the only benefit would be an ego boost to people in the industry.
Here's the one benefit, if you can consider it that. Essentially, no matter how large or small the loss, the industry will be happy. And perhaps a video of the event might make its rounds into more mainstream parts of society. But ultimately, it's an ego boost without an impact to the mainstream. We all need ego boosts sometime, but I really think the net benefit here is fairly minimal.
I must admit I am relieved to see that, so far, the GDC has not arranged for this debate to actually occur. To me, the circus that would follow the debate would detract from the conference, and ultimately prove to have little or no benefit to the anti-game censorship cause. However, that is just my opinion, and so feel free to disagree.
The Jack Thompson Debate at GDC would be a waste of time and have no real benefit for the industry.
I'm sure more than a few readers may be outraged by this statement, but I have four specific reasons for my position.
1. It won't change Jack's position.
It has become readily apparent that no amount of reason, logic, or factual evidence, much less the vocal and emotional pleas from fans, will sway Mr. Thompson. He will, in all likelyhood, hold the same stance from now until his death in the distant future. And in the mean time, he will use every waking moment to fight what he considers the "good fight." Mr. Thompson is the definition of a zealot, and although another debate will likely serve point 4, it won't change Mr. Thompson's mind. In fact, I doubt his mind would change if he soundly lost a million debates.
2. It won't reach the mainstream media.
Ultimately, this whole issue is about the perception of the video game in the main stream media and in the main stream American's mind. A debate at a conference of game developers won't make it on CNN or FoxNews or MSNBC. At best, it will make its rounds through the game fan circles, the game media, and maybe the technology media crowd, who are already overwhelmingly opposed to Mr. Thompson's position. The impact on society at large would more than likely be negligible.
3. It gives Jack more free press and attention.
I know my mother always told me to ignore a bully. By bringing in Mr. Thompson for a debate, it will make him the center of attention. And, when asked about the event, I'm sure he will spin his take on the event to his benefit, no matter the outcome. It's another line for his resume that we don't need to provide.
4. Jack would lose, but the only benefit would be an ego boost to people in the industry.
Here's the one benefit, if you can consider it that. Essentially, no matter how large or small the loss, the industry will be happy. And perhaps a video of the event might make its rounds into more mainstream parts of society. But ultimately, it's an ego boost without an impact to the mainstream. We all need ego boosts sometime, but I really think the net benefit here is fairly minimal.
I must admit I am relieved to see that, so far, the GDC has not arranged for this debate to actually occur. To me, the circus that would follow the debate would detract from the conference, and ultimately prove to have little or no benefit to the anti-game censorship cause. However, that is just my opinion, and so feel free to disagree.
Friday, September 21, 2007
Virtual Worlds Become Virtual Nations?
An interesting piece was recently posted on Virtually Blind by Israeli attorney Jonathan J. Klinger. The crux of his argument was:
I want to begin with a meta-theoretical statement. The purpose of virtual worlds is to bring people together. As such, the solution that either people must be divided on geographical lines or game providers must be subjected to liability is a pure frustration of purpose. Of course, the concept of making a "virtual world" an actual nation is equally blasphemous. In fact, it seems at though negative consequences could easily result from creating "independent nations" within nations that exist on servers. So, what solutions are available to the problem? Clearly the social conscience of a person in Texas cannot be made to match a person in Isreal or Japan or France. That idea is equally impracticable, and in the same vein, the pipedream of creating "universal rules" to govern the internet is impracticable. Moreover, the idea that we allow complete free speech to govern our online worlds only gives rise to the most deplorable of content, as child predators would take refuge under the "free speech" of the digital world. There is also the final consideration that, ultimately, the server space is private property. The Grid belongs to Linden. Azeroth (all of the various iterations on the various servers) belongs to Blizzard.
So where does this leave possible solutions? Governing in-world conduct being left to the worlds owners, how should jurisdiction be handled? I think it is time for a paradigm shift an analyzing jurisdictional elements with virtual worlds. Put simply: Server location dictates jurisdiction. While this idea won't bode will with the "minimum contacts" proponents out there, the theory does have a logical base. Ultimately, the activity occurs on the server, not at the user end. I can click buttons all day long on my personal computer, but without the server end, there is no net effect. As such, the server is the critical component. This is the basis for a client-server model, and this is, in my opinion, how it should be treated under the law. This provides the maximum certainty for the developer.
This, of course, leaves the issue of performing an activity illegal in one country on a server located in another. Ultimately, issues like these will have to be resolved by the governments, rather than putting the developer in the line of fire or forcing the defeat of the purpose of virtual worlds. So, for example, if a 3rd world nation hosts "Child Porn: The Game," it will be up to the international community to pressure that country to abolish the game. (Moreover, with something as pernicious as child pornography, local governments could likely track subscriptions and users in order to find offenses in the local countries. I can't say I favor invasion of privacy, but I also can't say I oppose using any means necessary to remove dangerous predators from the streets.) On the other hand, with something as hotly debated as online gambling, rather than leaving the user and developer in difficult and awkward positions, it would have to be resolved between nations. Ultimately, either the moralists would win, or the simple positive economics would. In either case, the burden is on the government, or indirectly on society as a whole, rather than punishing the developer or the user based on what are largely ambiguous lines.
Will this paradigm shift happen? It seems doubtful given the overwhelming analysis of jurisdiction to the contrary. However, I think that we have reached a time in which the old analysis need to be seriously re-examined based on the dramatically different world and virtual worlds that technology has created.
[Via Virtually Blind]
For example, earlier this year, Michael Carlton, CEO of online sportsbook Victor Chandler, was arrested in Israel. An Israeli court asserted jurisdiction over Carlton, a foreign citizen, and stated that as long as a portion of the illegal activity (here, gambling) occurred in Israel, there is no need for universal jurisdiction, and the website operator is subjected to the Israeli law (State v. Carlton, Hebrew decision). The court stated that it was in Victor Chandler’s responsibility to bar all communication from Israel since the activity they offer is illegal for Israeli citizens to participate in.I, however, do not agree. Moreover, I believe the precedent set by Isreal should be looked at with disdain by the legal community. Take note here that I'm departing from an actual analysis, which the above quote limits itself to, and moving into theoretical alternatives that would generally be beneficial to all those involved.
Using the same rationale, any employee of Blizzard or Linden Lab could be subjected to the Israeli penal code, as they are allowing illegal conduct (under Israeli law) to take place on their servers. Blizzard could face harsher liability as it distributes World of Warcraft actively in Israel, while Second Life is only available for download.
The only solution to these legal problems is to separate players according to countries, or even states (as some state laws in the US differ regarding pornography and violence). Any other solution may cause a conflict of laws, and subject the industry to liability twice: the first is the constitutional tort, where legal expression is barred though there is no local legal reason to bar it (e.g. ageplay in the U.S.) and the second is potential criminal prosecution by another state which may prosecute company leaders for user actions that are actually legal in the home country of the company.
I want to begin with a meta-theoretical statement. The purpose of virtual worlds is to bring people together. As such, the solution that either people must be divided on geographical lines or game providers must be subjected to liability is a pure frustration of purpose. Of course, the concept of making a "virtual world" an actual nation is equally blasphemous. In fact, it seems at though negative consequences could easily result from creating "independent nations" within nations that exist on servers. So, what solutions are available to the problem? Clearly the social conscience of a person in Texas cannot be made to match a person in Isreal or Japan or France. That idea is equally impracticable, and in the same vein, the pipedream of creating "universal rules" to govern the internet is impracticable. Moreover, the idea that we allow complete free speech to govern our online worlds only gives rise to the most deplorable of content, as child predators would take refuge under the "free speech" of the digital world. There is also the final consideration that, ultimately, the server space is private property. The Grid belongs to Linden. Azeroth (all of the various iterations on the various servers) belongs to Blizzard.
So where does this leave possible solutions? Governing in-world conduct being left to the worlds owners, how should jurisdiction be handled? I think it is time for a paradigm shift an analyzing jurisdictional elements with virtual worlds. Put simply: Server location dictates jurisdiction. While this idea won't bode will with the "minimum contacts" proponents out there, the theory does have a logical base. Ultimately, the activity occurs on the server, not at the user end. I can click buttons all day long on my personal computer, but without the server end, there is no net effect. As such, the server is the critical component. This is the basis for a client-server model, and this is, in my opinion, how it should be treated under the law. This provides the maximum certainty for the developer.
This, of course, leaves the issue of performing an activity illegal in one country on a server located in another. Ultimately, issues like these will have to be resolved by the governments, rather than putting the developer in the line of fire or forcing the defeat of the purpose of virtual worlds. So, for example, if a 3rd world nation hosts "Child Porn: The Game," it will be up to the international community to pressure that country to abolish the game. (Moreover, with something as pernicious as child pornography, local governments could likely track subscriptions and users in order to find offenses in the local countries. I can't say I favor invasion of privacy, but I also can't say I oppose using any means necessary to remove dangerous predators from the streets.) On the other hand, with something as hotly debated as online gambling, rather than leaving the user and developer in difficult and awkward positions, it would have to be resolved between nations. Ultimately, either the moralists would win, or the simple positive economics would. In either case, the burden is on the government, or indirectly on society as a whole, rather than punishing the developer or the user based on what are largely ambiguous lines.
Will this paradigm shift happen? It seems doubtful given the overwhelming analysis of jurisdiction to the contrary. However, I think that we have reached a time in which the old analysis need to be seriously re-examined based on the dramatically different world and virtual worlds that technology has created.
[Via Virtually Blind]
Monday, September 17, 2007
Oklahoma Video Game Law Defeated
The Video Game Industry can now add Oklahoma to their list of victories against game laws, as an opinion was released today in Entertainment Merchants Association v. Henry, Case No. 5:06-cv-00675 (W.D. Okla.). The opinion grants the plaintiff's request to have the enforcement of the act permanently enjoined.
The opinion makes it quite clear that there is no grounds to support this law. For those unfamiliar, the Oklahoma version of the law placed a $1,000 fine on any dissemination of video games with "inappropriate violence" to minors. This language even included a parent giving a game to a minor. The opinion made a few distinct points on the issues at hand:
1. Video games are protected speech. No particular peculiarities of the medium nor amount of user control can change this legal fact.
2. Regulating violence is a content based restriction on free speech, and therefore presumptively invalid and subject to strict scrutiny. Violence, unlike sexual content, is not regulating obscenity.
3. Video game violence does not compel youth to commit violent acts, nor is there "substantial evidence" of a link between video game violence and youth violence. To quote the opinion on the latter, "Beyond Defendants’ generalized statements, there is a complete dearth of legislative findings, scientific studies, or other rationale in the record to support the passage of the Act. Defendants’ argument that “common sense” dictates that playing violent video games “is not good for children,” and that the onus is on Plaintiffs to prove otherwise, completely fails. (See Defs.’ Resp. at 9.) The First Amendment does not allow prohibitions based on “common sense.” See Kendrick, 244 F.3d at 578; Granholm, 426 F. Supp. 2d at 663-64."
4. The standard on violence in this act was so very vague that it was fatal to the act itself, in addition to the numerous other flaws pointed out. "The Act “does not satisfy the rigorous constitutional standards that apply when government attempts to regulate expression. Where First Amendment freedoms are at stake . . . precision of drafting and clarity of purpose are essential. These prerequisites are absent
here.” Erznoznik, 422 U.S. at 217-18."
The question from here is whether the government officials in Oklahoma see fit to continue to waste taxpayer money and the court's time in addressing this issue, as California seems determined to do. I have long supported the proposition that parents should be controlling their children's media consumption, not the government, and this seems to be another step in the right direction.
The opinion makes it quite clear that there is no grounds to support this law. For those unfamiliar, the Oklahoma version of the law placed a $1,000 fine on any dissemination of video games with "inappropriate violence" to minors. This language even included a parent giving a game to a minor. The opinion made a few distinct points on the issues at hand:
1. Video games are protected speech. No particular peculiarities of the medium nor amount of user control can change this legal fact.
2. Regulating violence is a content based restriction on free speech, and therefore presumptively invalid and subject to strict scrutiny. Violence, unlike sexual content, is not regulating obscenity.
3. Video game violence does not compel youth to commit violent acts, nor is there "substantial evidence" of a link between video game violence and youth violence. To quote the opinion on the latter, "Beyond Defendants’ generalized statements, there is a complete dearth of legislative findings, scientific studies, or other rationale in the record to support the passage of the Act. Defendants’ argument that “common sense” dictates that playing violent video games “is not good for children,” and that the onus is on Plaintiffs to prove otherwise, completely fails. (See Defs.’ Resp. at 9.) The First Amendment does not allow prohibitions based on “common sense.” See Kendrick, 244 F.3d at 578; Granholm, 426 F. Supp. 2d at 663-64."
4. The standard on violence in this act was so very vague that it was fatal to the act itself, in addition to the numerous other flaws pointed out. "The Act “does not satisfy the rigorous constitutional standards that apply when government attempts to regulate expression. Where First Amendment freedoms are at stake . . . precision of drafting and clarity of purpose are essential. These prerequisites are absent
here.” Erznoznik, 422 U.S. at 217-18."
The question from here is whether the government officials in Oklahoma see fit to continue to waste taxpayer money and the court's time in addressing this issue, as California seems determined to do. I have long supported the proposition that parents should be controlling their children's media consumption, not the government, and this seems to be another step in the right direction.
Subscribe to:
Posts (Atom)
