Washington Post technology columnist Mike Musgrove reminds us in his column today that the video game industry’s voluntary ratings system–the Entertainment Software Rating Board (ESRB)–continues to come under fire in Washington and in the states. Musgrove notes that:
“Earlier this year, Sen. Sam Brownback (R-Kan.) was one of several lawmakers who introduced bills that would take the video game rating system away from the ESRB, but those bills never made it out of committee. Last week, at a summit on video games, youth and public policy, Rep. Betty McCollum (D-Minn.) trashed the game industry’s ratings system and called for a new, independent system. Brownback and McCollum agree that the current system–because it’s run by the game industry–can’t be trusted.”
This is nothing new, of course. I have written extensively about the politics of video game regulation and discussed how the video game ratings system has been criticized for a number of supposed shortcomings. Most recently, I wrote about Sen. Hillary Clinton (D-NY) and Sen. Joe Lieberman’s (D-CT) “Family Entertainment Protection Act” (FEPA, S. 2126), which would create a federal enforcement regime for video games sales and require ongoing regulatory scrutiny of industry ratings and practices. (Note: There was also a House version of the bill).
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On Monday, October 9th, Sen. Joe Lieberman (D-CT) delivered a major address about Internet content and online child safety that was intended to serve as a sort of call-to-arms for policymakers, parents and industry to get more serious about the issue.
In his wide-ranging remarks, Lieberman bemoaned the relentless pace of technological change and how the Internet and digital media technologies were making it increasingly difficult for parents to protect children from objectionable material or, worse yet, child predators. “The Internet is a wondrous, revolutionary medium,” Lieberman said. “But there is too often a thin line between the awe-inspiring and the simply awful, and with each new technological breakthrough, it seems that the opportunities for our children to fall into that awful gap grow greater and graver.”
In this essay, I will dissect Sen. Lieberman’s manifesto and provide a detailed response to his assertions and proposals. I feel this is necessary because his address touches on many of the major themes and proposals that are framing the debate over Internet regulation that is taking place in America today.
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In a previous essay I asked:
“why is it that so few people talk about the role of strong intellectual property rights in the electronic gaming sector? After all, this sector is quite vocal about enforcing their copyrights. And they’re even big supporters of the DMCA. But they never get ridiculed as much as the movie or music guys. Could it be because many IP skeptics love their video games and are willing to give them a free pass while going after Hollywood on copyright issues?”
I find myself wondering the same thing this week in the wake of reports that the eagerly anticipated role-playing game “Final Fantasy XII” has been leaked and is now being distributed across the Internet illegally.
What I find so interesting about this incident is the extent to which many people on news boards like this, this, and this are almost unanimously denouncing those who would distribute or download the game illegally.
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Related to last month’s series on platform monopolies, here’s an interesting article on Microsoft’s baby steps toward opening up the Xbox:
With the hobbyist release, the software giant is hoping to lay the groundwork for what one day will be a thriving network of enthusiasts developing for one another, something akin to a YouTube for games. The company, however, is pretty far from that goal.
In the first incarnation, games developed using the free tools will be available only to like-minded hobbyists, not the Xbox community as a whole. Those who want to develop games will have to pay a $99 fee to be part of a “Creators’ Club,” a name that is likely to change. Games developed using XNA Game Studio Express will be playable only by others who are part of the club.
Next spring, Microsoft hopes to have a broader set of tools that will allow for games to be created that can then be sold online through Microsoft’s Xbox Live Arcade. Microsoft will still control which games get published, and it’ll get a cut of the revenue.
Down the road, probably three to five years from now, Microsoft hopes to have an open approach, where anyone can publish games, and community response helps separate the hits from the flops.
Just so we’re clear, the obstacles to an open Xbox are legal and financial, not technical. If Microsoft’s goal were simply to make Xbox development tools more widely available, they could do that in a matter of months, just as the PC platform is open to development by anybody. What Microsoft wants to do is open up Xbox development to a wider audience of gamers without relinquishing their monopoly on access to the platform for developers. That way they can be sure to get a cut on each game released.
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The electronic gaming sector chalked up another impressive First Amendment victory on Monday in the case of Electronic Software Association v. Hatch. [Here’s the full decision]. James M. Rosenbaum, Chief District Judge of the District Court of Minnesota, struck down as unconstitutional a Minnesota law that passed in May of this year. The Minnesota law was unique in that it sought to impose fines on the buyers rather than the sellers of games rated either “M” for Mature or “AO” for Adults Only under the industry’s voluntary ratings system. Other state and local laws that have been struck down in recent years imposed penalties mostly on game retailers who sold games rated M or AO to minors.
But the unique Minnesota approach met the same legal fate as those other laws. Echoing the previous video game industry decisions, Judge Rosenbaum declared that “video games are a protected form of speech under the First Amendment.” In response to the State of Minnesota’s plea that, when balancing the interests in this matter, the Court should consider “the lesser societal value” of “worthless, disgusting” video games, Judge Rosenbaum cut loose with this wonderful rejoinder: “The First Amendment… was certainly established to keep the government from becoming the arbiter of what constitutes ‘worthless’ or ‘disgusting’ speech. The Court declines the State’s invitation to enter into an evaluation of this kind.”
That’s pretty powerful stuff. But wait… it gets even better.
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I heard the rumors over the weekend and hoped that they were not true. But they were. “E3” the video game industry’s amazing annual trade show, is going to be scaled back starting next year. The big, beautiful, booming spectacle of hundreds of gaming companies coming together to show off their amazing new games, platforms and other inventions… is no more. It will be replaced by a smaller show at a smaller location with a smaller crowd.
As a gaming fanatic, it is sad news to be sure. I may be a 37-year-old father of two, but when I was walking the aisles of the “E3” show this May, it was a non-stop, “kid-in-the-world’s-greatest-(eye & ear)-candy-store” moment for me. (My complete review of this year’s show can be found here.
But, after the news set in–and after I had time to kill the pain by getting on XBOX Live and kicking a good friend’s butt in a heated match of “NCAA Football 2007”!–I started thinking more rationally about the economics of trade shows. Specifically, why do industries host trade shows at all? Is it really worth it for them?
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I suppose you could argue that a 37-year-old father of two shouldn’t still be playing video games, but I love ’em and just can’t give them up. I’ll probably still be playing when I’m 80 inside a virtual holodeck down in some lame Florida retirement community. (God I hope my Golden Years are that exciting).
These days, I just don’t have the time to play the more sophisticated action & adventure games that I used to love the most, so I now spend most of my time with “single-session” games, especially sports games that allow me to play a quick game and then put it aside for awhile. Last night, while I was sitting in my basement with my kids playing an intense Michigan vs. Ohio State matchup on EA’s marvelous new “NCAA Football 2007,” my mind started drifting back to all the other football games I’ve played through the years on multiple platforms. In particular, I remembered the very first sports game I ever bought was “Atari Football” back in the late 1970s. At the time, I thought it was about the most cutting-edge thing ever invented. Today, of course, it looks absolutely primitive. Just look at this! …
… And then look at this beautiful screen shot from the new NCAA Football game…
We’ve come a long way in a very short time!
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If you thought the FCC’s regime of speech controls for broadcast television and radio was arbitrary and excessive, then just wait till we give similar authority to the Federal Trade Commission (FTC) to regulate video game content! That’s apparently what House Telecommunications Subcommittee Chairman Fred Upton (R-Mich) plans to do.
According to Broadcasting & Cable magazine, he is preparing a bill to give the FTC greater authority to fine video game manufacturers if they contain objectionable content. Barton, you will recall, was the sponsor of the recently passed Broadcast Decency Enforcement Act, which raised the fines that FCC could impose on broadcasters 10-fold. Apparently, he wants to give the FTC greater powers because he is angry about the agency’s recent decision in the “Grand Theft Auto” investigation. He said that the FTC’s action “wasn’t even a slap on the wrist” and that millions of dollars of fines should have been levied.
It’s just more bad news for the video game industry and fans of the First Amendment. (Here’s my recent paper summarizing some of the other threats the industry faces).
I’ve been out in Los Angeles this week attending “E3,” the video game industry’s annual trade show. It’s the first time I’ve been able to attend the show and I am finding it very interesting. Indeed, as I walk the halls of the L.A. convention center and chat with gaming companies and gamers themselves, I am struck by several things:
(1) This is one heck of an innovative industry. There are some remarkably creative minds working in the electronic gaming sector. As a life-long gamer who was part of the “Pong” and “Pac-Mac” generation, I am just flabbergasted by how much more highly developed games are today (in terms of graphics, narrative and gameplay) than they were 30 years ago when I first started gaming. There was a moment in my life when I thought that games just couldn’t get much more sophisticated than Activision’s “Pitfall” or Atari’s “Adventure.” What a fool I was! Some of the massive multi-player online roll-playing games (“MMORPGs”) I saw at the show were just jaw-dropping in terms of their graphical detail and narrative sophistication. And all of the new high-definition titles for the X-Box 360 and PlayStation 3 are nothing short of stunning. Old favorites of mine like “Madden” football and “Gran Turismo” are now rendered in ultra-crisp 1080p HD resolution. There are moments during those games when you really think you’re watching a live feed from a real football game or road race.
And even the games which featured a more simple premise were exciting. Consider “Table Tennis” by Rock Star Games. The same company that brought us the infamous “Grand Theft Auto” is now producing a decidedly less controversial title based on the classic game of Ping Pong! If you think it sounds silly, wait till you play it. It is addicting in a “Tetris-like” fashion. I hope they eventually make it for my PlayStation Portable!
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Rebecca Hagelin of the Heritage Foundation recently posted a column about video games on TownHall.com that I think deserves a response. Ms. Hagelin is concerned about video games being “murder simulators” and recounts the story of one youth who killed several people last year and who also happened to play a lot of “Grand Theft Auto”
No doubt, the Devin Moore story that Ms. Hagelin uses to make her case against video games is quite sad and troubling. Before blaming video games for his behavior, however, a serious social analyst needs to weed out a host of other social / environment factors. For example, it was revealed at last week’s hearing on video game regulation that this young man was the product of a broken home and was apparently subjected to severe child abuse. Apparently his father beat both him and his brother several times a week and also forced them to work long shifts (over 16 hours at a time) at his janitorial business. Such factors need to be taken into account when evaluating what made this boy commit such heinous crimes. Yet, Ms. Hagelin ignores these facts in her essay.
But there are other facts ignored here too. I recently penned a study on the many myths and misperceptions driving the push for video game regulation in America today, including Sen. Hillary Clinton’s bill (“The Family Entertainment Protection Act”). The 30-page analysis (“Fact and Fiction in the Debate over Video Game Regulation”) can be found at the Progress & Freedom Foundation website at: http://www.pff.org/issues-pubs/pops/pop13.7videogames.pdf
The general conclusions of my research are as follows:
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.