Video Games & Virtual Worlds

The Supreme Court will be issuing its opinion in the case Brown v. Entertainment Merchants Association any day now (TLF’s previous coverage is here). The case was previously known as Schwarzenegger v. Entertainment Merchants Association, but Mr. Schwarzenegger has been trying to stay out of court of late. I was just sent a draft of the statement that the Eagle Forum Education & Legal Defense Fund, which filed an amicus brief in the case, is planning to release if the decision goes its way. The Eagle Forum Education & Legal Defense Fund was founded by Phyllis Schlafly.

[Not really. This is a joke (but the quotes are true).]
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Five years ago this month, I penned a white paper on “Fact and Fiction in the Debate over Video Game Regulation” that I have been meaning to update ever since but just never seem to get around to it. One of the myths I aimed to debunk in the paper was the belief that most video games contain intense depictions of violence or sexuality.  This argument drives many of the crusades to regulate video games. In my old study, I aggregated several years worth of data about video game ratings and showed that the exact opposite was the case: the majority of games sold each year were rating “E” for everyone or “E10+” (Everyone 10 and over) by the Entertainment Software Rating Board (ESRB).

Thanks to this new article by Ars Technica‘s Ben Kuchera, we know that this trend continues. Kuchera reports that out of 1,638 games rated by the ESRB in 2010, only 5% were rated “M” for Mature. As a percentage of top sellers, the percentage of “M”-rated games is a bit higher, coming in at 29%. But that’s hardly surprising since there are always a few big “M”-rated titles that are the power-sellers among young adults each year.  Still, most of the best sellers don’t contain extreme violence or sexuality.

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Hosted by SMU’s Guildhall video game law graduate program, the Game::Business::Law summit is the leading conference in the field. Follow the discussion on the #GBL2011 hashtag. Here’s the make-up of my privacy panel:


Professor Xuan-Thao Nguyen, SMU Dedman School of Law

Jennifer Archie, Partner, Latham & Watkins LLP

Andrew S. Ehmke, Partner, Haynes and Boone, LLP

Dr. Joshua Fairfield, Washington & Lee School of Law

Berin Szoka, Founder, TechFreedom

This is an all-star cast. Prof. Nguyen is a big name in video game law field; I had the privilege to work with Jennifer Archie on Internet law when I practiced at Latham; and Josh Fairfield is one of the few law professors I find myself in perfect philosophical harmony with. Check out this summary of his excellent 2009 paper Virtual Parentalism. I only met Andy last night at the reception, but he’s a solid thinker on the law of gaming. As they say on postcards: Wish you were here!

CLU seeks systemic perfection in Tron: Legacy

Note: The following post contains spoilers pertaining to the plot and theme of the film Tron: Legacy.

Near the end of Tron: Legacy, the character CLU (short for Codified Likeness Utility), on the verge of releasing his army of re-purposed computer programs into the brick-and-mortar world to destroy humanity, confronts Kevin Flynn, his creator-turned-nemesis, with a plaintiff, “I did everything you asked.”  Flynn, older and wiser than the character we met in 1982’s Tron, and his techno-idealism tempered by the realization that to save humanity he must destroy both his physical and virtual self, wistfully answers, “I know.”

It’s a rather poignant scene that punctuates the film’s unique take on technology and humanity. Traditionally in the movies, when technology turns evil, it does so with a will of its own. The Matrix and Terminator films are just two examples. Tron: Legacy, however, upends the idea. CLU, sure enough, turns on his human creator, but not out of rebellion, but to carry out his human-engineered programming.

You see, Flynn programmed CLU to create the “perfect system.” In the film, Flynn explains that, as a younger man he thought he could design a technology-based solution that would end war, illness, poverty and hunger and, in a nutshell, make humanity better. But when the Grid—the computer environment Flynn nurtured—actually does something spontaneously, spawning a new life form, so-called isomorphic programs (called isos for short), CLU destroys them. While this act of cybernetic genocide horrifies Flynn, from CLU’s perspective, it was nothing but a logical response. The isos, as free and independent entities that did not respond to his command and control, introduced an element of randomness and uncertainty into the Grid that CLU could not abide. They were an obstacle to the systemic perfection he was programmed to create and therefore had to be eliminated.

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I’m still digesting the transcript from Tuesday’s Supreme Court oral arguments in the important First Amendment video game case, Schwarzenegger v. EMA. [Full transcript is here.]  I thought I would post just a couple of quick thoughts here. [Reminder: here is the amicus brief that Berin Szoka and I filed in the case, and here is some analysis of the case by Larry Downes.]

On Defining “Deviant Violence”

Much of the discussion during oral arguments was preoccupied with defining the contours of the term “deviant violence.”  I was pleased to see the Justices asking some sharp questions about the interpretation of that term for regulatory purposes. In particular, I enjoyed Justice Scalia’s remarks and questions to California Deputy Attorney General Zackery Morazzini, who argued the case on behalf of the state. Scalia said:

I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create…  a whole new prohibition which the American people never — never ratified when they ratified the First Amendment.  They knew they were — you know, obscenity was — was bad, but — what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does — will that affect them? Of course, I suppose it will.  But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay? (p. 15-16)

Indeed, that’s what is at stake in this case: The beginning of a new class of exceptions to the First Amendment based upon concerns about children’s exposure to depictions of “excessive” or “deviant” violence.”  Once you open up this can of worms, the sky is likely the limit in terms of how far governments might go to regulate speech in the name of “protecting children.” Continue reading →

Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors. The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.

There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.

But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment. The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.

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By Berin Szoka & Adam Thierer

Yesterday, the Progress & Freedom Foundation (PFF) and Electronic Frontier Foundation (EFF)  filed a joint amicus brief with the U.S. Supreme Court urging the Court to protect the free speech rights of videogame creators and users and asking the justices to uphold a ruling throwing out unconstitutional restrictions on violent videogames.  At issue is a California law that bans the sale or rental of “violent” videogames to anyone under the age of 18, among other regulations. While the law was passed in 2005, it has never taken effect, as courts have repeatedly ruled it unconstitutional. California appealed its loss at the Ninth Circuit Court of Appeals to the Supreme Court.  The case is Schwarzenegger vs. EMA.

This case has profound ramifications for the future of not just videogames, but all media, and the Internet as well. Although we’ve had 15 years of fairly solid Supreme Court case law on new media issues, a loss in the Schwarzenegger case could reverse that tide.  In the amicus brief, we explain how the current videogame content rating system empowers parents to make their own decisions without unconstitutionally restricting this new and evolving form of free speech.  Our brief is focused on three major arguments:

  1. Parental Control Tools, Household Media Control Methods, Self-Regulation and Enforcement of Existing Laws Constitute Less Restrictive Means of Limiting Access to Objectionable Content than Government Regulation of Constitutionally Protected Speech
  2. Videogame Content is Constitutionally Protected Speech Deserving Strict Scrutiny
  3. The State Has Not Established a Compelling Government Interest in Restricting the Sale of Videogames to Minors

The filing can be found online here and it is embedded down below.  As always, the Media Coalition has done an outstanding job summarizing the case and listing all the major briefs filed with the Court in this matter, so check out their Schwarzenegger v. EMA page for everything you need to know about this case. also offers excellent ongoing coverage of the case. Continue reading →

I’m hoping to get some input from readers as I look to finish up an amicus brief for the forthcoming Schwarzenegger v. EMA video game case. (Respondent briefs are due in mid-Sept and the State of California just filed its brief with the Court today). You will recall that the Supreme Court accepted the case for review in April, meaning it will be the first major case regarding video game speech rights heard by our nation’s highest court. It raises questions about the First Amendment status of games and what rights minors have to buy or play “violent” video games.  One section I hope to include in the brief I’m working on deals with how other forms of media content are increasingly intertwined with video game content. In it, I explain how video games are less of a discreet category of visual entertainment than they once were. I’d welcome ideas for other examples to use relative to the ones you see below.

I begin by discussing games that were inspired by major motion pictures, such as both the recent Star Wars and Lord of the Rings movie trilogies, for example.  I also note that many games were inspired by notable books, such as the LotR games being inspired by Tolkien, and The Godfather video games that were inspired by Mario Puzo’s novel of the same name. I also make mention of The Terminator movies starring California Governor Arnold Schwarzenegger, which inspired a wide variety of video games, many of which featured his likeness.

More importantly, I highlight how many video games are now inspiring movies, music, books, and comics, including: Prince of Persia, Max Payne, Resident Evil, Tomb Raider, Doom, Final Fantasy, Halo, and Gears of War. The characters and storylines in the books, comics, and movies based on these games often closely track the video games that inspired them.  Increasingly, therefore, games are developed along parallel tracks with these other forms of content. Thus, to regulate games under the standard California proposes in this case raises the question of whether those other types of media should be regulated in a similar fashion.  Should every iteration of the original game title be regulated under the standard California has suggested if those books, comics, or movies contain violent themes?
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“Don’t turn COPPA into a sweeping age verification mandate for the Internet!” That was essentially the core message of joint comments (below) Adam Thierer and I today filed with the Center for Democracy & Technology and the Electronic Frontier Foundation on the FTC’s Implementation Review of the rules that implement the Children’s Online Privacy Protection Act of 1998 (which requires verifiable parental consent for kids under 13 to use most interactive sites and services if those sites are “directed to” them or if the site has “actual knowledge” it might be collecting personal information from such kids or allowing them to share such information through the site).

Specifically, we counsel the Commission against expanding COPPA beyond its original, limited purposes and scope, or calling on Congress to enact an expansion. In a techno-functional sense, COPPA is already “expansive,” since it is essentially device- and technology- neutral—essentially applying to any site or service that uses the Internet. That flexibility should allow the FTC to apply the statute in a changing landscape without further legislative changes. But we explain why COPPA is necessarily narrow in its age scope and the “directed to” and “actual knowledge” concepts that actually trigger COPPA’s requirements—and why changing any one of these three critical parts would inevitably lead to unconstitutional restrictions on the speech rights of adults, minors, and site operators, while actually reducing online privacy but without enhancing the online safety of children.

We call instead for the agency (i) to use the breadth and flexibility already given to it by Congress in the COPPA statute to enforce the statute in a manner consistent with the rapidly changing technical landscape and (ii) to supplement enforcement of that existing law with increased educational efforts and promotion of parental empowerment solutions.

Adam and I certainly have our differences with CDT and EFF on some issues, but this is not one of them! I’m deeply proud to join with these organizations in pointing out the unintended consequences of expanding regulation in an area where all too many people stop thinking carefully about the effects of regulation because, they seem to think, “We can never do enough for the children!” As we point out in our comments, the trade-offs here aren’t just between “The Children” and anyone’s narrow economic interests, but run far, far deeper. Adam & I did our best to succinctly capture the true, complex cluster of issues at stake with the title of the paper we released last summer about COPPA expansion: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.”

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The Entertainment Software Association, which represents the video game industry, has just released its latest “Essential Facts about the Computer and Video Game Industry” publication.  It’s a handy annual resource that I always look forward to reading. There are many interesting facts and figures found in the report, but here a few worth calling out from the data they have aggregated:

  • 93% of the time parents are present at the time games are purchased or rented
  • 64% of parents believe games are a positive part of their children’s lives
  • 86% of the time children receive their parents’ permission before purchasing or renting a game
  • 48% of parents play computer and video games with their children at least weekly
  • 97% of parents report always or sometimes monitoring the games their children play
  • 76% of parents believe that the parental controls available in all new video game consoles are useful

The survey also bolsters the findings of many other polls and reports which have found that parents employ a variety of what I have labeled “household media rules” to monitor or control their children’s media consumption: Continue reading →