ESA Suffers First Amendment Amnesia, Gets Legalistic on Game Blogs

November 10, 2006 -
Get over yourself, ESA. Grow a sense of humor, ESRB.

It's only a t-shirt.

If the ESA believes that a novelty shirt which lampoons the ESRB rating system somehow infringes upon their brand, they should pursue whatever legal action they deem necessary against T-shirt Hell, the company selling the parody item.

Respected video game blog Kotaku, however, isn't peddling the shirt. They simply wrote about it - as in free speech...

Why menace a video game news site for reporting the news about this shirt? Kotaku regularly dishes not only on games, but gamer culture, including its more offbeat aspects. This t-shirt certainly qualifies. That the ESA, an organization which is continually waging court battles over First Amendment rights, would take this ham-handed action is an extremely troubling development.

Apparently the website that broke the story on the offending T-shirt, Bits, Bytes, Pixels & Sprites, bowed to the ESA's pressure tactics. BBPS is a one-man blog, operating without a safety net. GP's been there, we understand perfectly. Kotaku, on the other hand, as part of the Gawker network, is in a better position to stand up to the ESA's bully tactics.

What's makes this situation even more distasteful is that the ESA's game publisher members are perfectly happy to have Kotaku mention their video game products day after day after day after day.

In fact, ESA member companies like Electronic Arts, Sony, Nintendo, Microsoft, Activision and others  - who, through their sponsorship of the ESA, are ultimately responsible for this attack on free speech - certainly enjoy and benefit from publicity generated at big blog sites like Kotaku and Joystiq as well as a host of smaller ones.

Beyond that, GamePolitics finds it quite amazing that the ESA does nothing when a certain individual regularly likens its president, Doug Lowenstein, to all manner of vile historical figures. Yet the game publisher's trade group goes to the legal equivalent of Defcon 4 with Kotaku over this nonsense?

The ESA should do the right thing and back off.

UPDATE: Chris Bennett writes about the legalities of this case on the excellent Video Game Law Blog.

Comments

@Effervescence

I think that if a game isn't actually rated, and doesn't say 'Rated by the ESRB' on the rating, retailers don't carry the game.

Another waste of time and resources from the ESA, in my opinion.
Okay, I'm assuming this is the "Your Mom is rated E for Everyone!" shirt over there at T-Shirt Hell? Well, that's funny. I like it.

I think I'm going to buy one now.

Sorry ESA, I have a sense of humor. I also understand the law in regard to trademark and parody (your lawyers apparently don't). So get the joke, have a laugh, apologize, and leave this only. All you're going to accomplish is the tarnishing of your image and you're going to help sell a lot of these shirts.

Remember, even when we're critical of you. Even if we make fun of you. The grassroots/passionate gaming community are your greatest allies. Don't lose sight of the challenges ahead from Government and public perception.

Is it just me or should the ESA hire some consultants to help them head off things like this?

It's the letter "E" in a triangle. That's a pretty poor trademark anyway.

WTF?!?!?!??!?!

A CENSORCRAT HAS INFILTRATED OUR RANKS!!! WHAT THE SHIT?!?!?!?!?

OK so I sent this email..... thanks Jabr for the Parody link

Question: When is parody protected from a charge of trademark infringement?

Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. “A parody must convey two simultaneous–and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused.” From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)
http://www.chillingeffects.org/protest/faq.cgi#QID542

Dear ESA:

Until you start rating everyone’s moms for content suitability, there will be no confusion. Also considering the number of blogs that support your industry who are carrying this story: (http://www.kotaku.com/gaming/legal/esa-threatens-kotaku-213676.php). You may want to teach Christina L. Boone what an editorial, and a parody are. Legally you're up against a First Amendment challenge, which you should be familiar with, but apparently someone in your organization is not, and this is one you would not win. You also are creating very bad publicity for yourself, with the very people who support your industry.

I do feel sorry for who ever is checking this email, angry gamers tend to be rather vitriolic in email writing.



Sincerely


Entertainment Software Association

You can still get an "Your Mom rated E for Everyone" shirt at T-Shirt Hell.

Just don't tell the ESRB.

[...] Edit: GamePolitics is calling all bloggers: “Perhaps a show of blogger unity here is needed here. Perhaps every game blog - both large and small - should make this their lead story on Monday morning - with an oversized picture of the offending shirt prominently displayed.” To Whom It May Concern: [...]

Actions like these are why I don't trust them (ESA) outright despite the fact that I love the medium. Don't even get me started about how the ESA supports Nintendo's "Gameboy emulation patent" which is bogus because Gameboy emulation existed before they filed (and the USPTO foolishly approved) that patent.

http://www.eff.org/patent/wanted/patent.php?p=nintendo

Situations like this are where Hal Halpin needs to pitch in on the consumer/user side...

Long time reader, first time poster.

I just had a very unsettling thought that I wanted to share... Once the governmental legal salvos taper off, and the ESA's resources can be allocated to other things, I predict that we'll see a lot more of this kind of thing.

Once there is less of a cash outflow for legal battles, there may be a lot more to used to fight fair use, parody, and a many other legal activities - guised as copyright infringement and piracy.

In a couple of years, the ESA could very well be the next RIAA. I don't think it will be the same battles.. just the same attitude and spirit - hurting their own consumer base through shortsighted actions that don't affect the *real* criminals, just the average Joe/Jane.

That thought really leaves a bad taste in my mouth.

This seems like the beginning; and if we, collectivly as gamers, voters, and consumers, let the ESA take this inch, (illegally bullying the little guy), it won't be long before they take a mile, because the consumer let them get away with it -- and the ESA transforms into the interactive software content cartel.

Ugh. makes me sick to think about it.

Kyouryuu, the "First Amendment" knife cuts both ways. The ESA does not make decisions lightly, so this is just blatant bullying on their part.

Their behavior is simply inexcusable, considering they rely on the U.S. Constitution to fend off misguided politicians. By attacking an enthusiast website, it's a minor (for now) PR blunder, plain and simple.

Note-this behavior does not surprise me considering they are not "pro consumer" but "pro industry", but it is a bit disappointing.

Did I get teleported into Bizarro-world while I slept? wtf?

Ooh this case brings back old wounds. I am a newgrounds fan and as you know newgrounds has a ratings system for its movies and games, they used have them rated e, T, M , and A and then the ESRB sued them over this even though their rating letters were in black and white and newgrounds wasn't (actually they were very different) nevertheless they forced newgrounds to change their ratings symbol. Anyway I hope the ESA loses big time (my god I'd never thought I'd say this).

Ironic part is, the ESA have probably just done for this shirt what the anti-gaming crowd did for Bully and GTA, i.e. Tripled its sales.

For a case like this I'm sure any bloggers who need a hand could just drop a line to the EFF (www.eff.org). They are very consistent supporters of first amendment rights, and I'm sure would take an interesting it a situation like this.

from wikipedia article - Parody:

Copyright issues

Although a parody can be considered a derivative work under United States Copyright Law, it can be protected under the fair use doctrine, which is codified in 17 USC § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work. Campbell v. Acuff-Rose Music, Inc.

- Warren Lewis

Consumer responsibility is just as important as Corporate responsibility.

@battlechicken

Thefremen has forseen this and stated it will be so in the ECA thread. The ECA will actually represent consumers while the ESA will always be for the industry. Therefore, when stupid video game laws stop, ESA v. Gamers starts, and the ECA comes to our aid.

[...] Update: Game Politics has some more information on this issue, and notes that another video game fan site did indeed capitulate to the ESA’s demands. My guess is that Kotaku, which is part of the Gawker Media Network, has better lawyers (or lawyers of any sort at all, which most fan sites are unlikely to have). [...]

Let us pray that this does not turn them into a clone of the RIAA, the RIAA is a bunch of greedy money-grubing whores who sue because they haven't turned up an artist in years who wasn't just a fad or had to rely on scantily clad women to sell music videos. They make me sick. The ESA should not sue over this because parody is legal. Just look at MAD magazine they have been making a parody magazine for 50 years, if parody was illegal why haven't they been stopped?

Someone give out the ESA's number so i can pass it around to 50+ friends...im sure after a few thousand calls they will retract what they said and say they are sorry.

ps:i noticed their is a spell checker inplace now...why do i feel like that paperclip guy is still haunting me >.>.

"Meh, well, I’ve said it before and I’ll say it again, do not confuse the fact the Doug Lowenstein’s goals benefit us with him ‘being on our side’, he is not, his job is to assure coninued success and profit for the ESA."-GoodRobotUs

Indeed, despite their work to overturn video game laws, the ESA should only be considered a fair weather ally. They are the video game industry's equivalent of the MPAA or RIAA, and represent publishers (and major retailers, but since publishers more or less decide what games get on the shelves...) and their interests (e.g. extracting as much money from your pocket per game as legally possible).
The only reason that they've fought VG laws is because they could decrease the money publishers get from consumers.

Gees i guess they were drinking the same kool aid jack was when he started barkin at midway games.

the term "chicken-shit" comes to mind here the way they'll flex the legal pecks at somone they think will go running at the thought of litigation yet curl up in the corner when a politician of loudmouth miami geriatric calls them scum.

Bravo ESA if you're aiming to annoy the people who supported you initially you're doing one hell of a job.

@GP

Has Jack volunteered to represent Kotaku in court to fight the ESA yet?

Oh, and thanks for wrecking my high after the events of tuesday/wednesday.

Damn, I guess the ESA was really serious about being just like the RIAA and MPAA weren't they?

@Hank - not so easy to win this. In fact, if Kotaku continues to stand tall, the ESA cannot win.

@Sloth - no, Gmail gets through> I got what you sent...

I'm so shocked and disgusted by this. I guess it shows...

:-(

Ok so we go after the news site talking about the T shirt and not the website makeign the T shit HOLLYFCK we found the true architects of the IRQ WAR!


But really....grow some hair and balls already....your starting to devolve into politicians...plan out what to do in a coherent manner even if its PC it should not be as bad as this waffling in the fcking wind you are doing and letting defamers and lairs decimate the industry....

Anyone got Doug's email address? There is a good chance their legal department cooked this one up on their own. Frankly I think they owe some people public apologies for pulling a stunt like this.

[I.Question: When is parody protected from a charge of trademark infringement?

Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. “A parody must convey two simultaneous–and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused.” From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)
http://www.chillingeffects.org/protest/faq.cgi#QID542

Dear ESA:

Until you start rating everyone’s moms for content suitability, there will be no confusion.[/I]

So tempted to send this as an email

Finally, my quote has a good use.

Take your ritalin child, and relax.

Oh, and reporting on a trademark infringement is most certainly not trademark infringement. Just like Diebold can't sucessfully sue blogs that reveal "company secrets" ie flaws in the system, the ESA has NO case against Kotaku, and is just using BULLYING tactics to get their way.

That's right, THE ESA IS PULLING A JACK THOMPSON! There, I said it. Doug, you may now bow your head in shame and beg for forgiveness.
-- If your wiimote goes snicker-snack, check your wrist-strap...

So I guess I better throw out my coffee mug that says "Contents rated AO", eh? ;)

Not.

Question: When is parody protected from a charge of trademark infringement?

Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. "A parody must convey two simultaneous--and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused." From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)

http://www.chillingeffects.org/protest/faq.cgi#QID542

Dear ESA:

Until you start rating everyone's moms for content suitability, there will be no confusion.

Buh bye,

Colin "Jabrwock" McInnes
-- If your wiimote goes snicker-snack, check your wrist-strap...

Seriously? They're not even going after tshirthell.com, but KOTAKU for reporting on the story? What the hell!?

I say go for it, Kotaku. Report the story once a day. Rub their noses in the fact that there's nothing they can do to stop you. Hell, I think I'm going to go buy a copy of that shirt out of spite. It didn't really appeal to me all that much since I don't really find Yo Mama jokes all that funny... but damned if I'm not getting one of these to wear now.

76
Only when they have nothing else to take up thier time....then they will start makeing money of court battles....

http://www.theesa.com/contact/index.php

Have at it. They need to be told very loudly that the folks that buy their shit want this stopped.

Loudly, but keep it civil, which is why I won't until I eat and relax a bit. (Vacation Day!)

~~All Knowledge is Worth Having~~

I've said it before, and I now say it again. Doug Lowenstein needs to step down as ESA head and find somone who has balls to come take his place

This is pathetic. It's called paradoy you idiots, and legally protected. Your so concerned with your god damn image yet you never once bother going after the news media, jack thompson ,politicans, and others who defame and attack your industry endlessly, over and over and over again.

Grow up, grow a brain, or let someone who has one do it for you. Either way, this isn't gonna help your image with the masses, and will hurt your image among your primary fan base.

Kyouryuu
One misstep when the only thing they are ding right holding the retailers hands?
They have been needing direction for a long time now and this jsut shows they are going in the other direction...

I somewhat agree with Yuki.

It seems like the only reason that they are doing this is because this is an easy fight that they know they can win.

This is really a blow to their reputation IMHO.

What a letdown. I mean, if there weren't legal battle after legal battle being fought over video games' classification as free speech, I might be only peeved at this kind of news. But come on, in this day and age where hypocrisy and misleading actions are one of the biggest problems we have with our government, this is just plain not needed.

This is totally wrong. The ESA has no reason to do something like this.

Sheesh!

Hey, Dennis, does your e-mail filter out Gmail? Because I sent you some further info concerning this, erm, situation and I would hate for it to get lost in the void of the Internet.

:-P

What part of "fair use" and "parody" did the esa not understand >.>,seriously i find it a outrage that they go after a random afternoon blogger and not the real threats constantly at their doorstep.

I am gonna go print me some "ESA" toilet paper for future use because of this garbage.

This is really sad. I applaude the ESA's efforts to strike down idiotic, unconstitutional, pro-censorship, anti-gaming legislation but this is really going to piss off alot of gamers and make the ESA alot of enemies within the gaming community. That's something we can't have. Don't be like the RIAA and MPAA are ESA. Focus on the retarded anti-gaming bills being passed in the country and extreme piracy but not stuff like this.

One goofy misstep and it's all "BURN THE WITCH"?

SIFTR said it best already.
"Take your ritalin child, and relax."

-----

"In fact, ESA member companies like Electronic Arts, Sony, Nintendo, Microsoft, Activision and others - who, through their sponsorship of the ESA, are ultimately responsible for this attack on free speech"

I think that statement is tremendously unfair and overreaching. The big gaming companies may provide support to the ESA, but it's asinine to presume that they led the ESA to "attack" Kotaku. The ESA is its own organization and it is hardly infallible.

As a citizen of the US, I pay taxes to the government. Does that mean I must therefore support the Iraq war? Am I at fault because I'm an "enabler" even though I personally have no say in it and vehemently protest it? Am I to be blamed when the government goes off and screws it up?

The ESA is no different. The big companies pay into the ESA for protection and the notion of solidarity despite being competitors. Most of the time, the ESA does successfully defend them from attacks. Sometimes, the ESA gets carried away on stupid things like this. It does not automatically mean "OH GAWD everyone who backs the ESA must support this!"

I'm concerned that GP would stoop to such a low, knee-jerk reaction.

This is only marginally better than the "I Hate Jack Thompson" shirt because it doesn't involve said lawyer, but worse in that respect at the same time because the ESA can't grow a sense of humor. Bill Watterson doesn't want car-stickers that show Calvin pissing on the logo of the opposing car brand, it's understandable, since he's not really an adultish character. But how about the "Got Milk?" catchphrase being milked in parodies? Or various popular culture references being used and parodied in t-shirts and the like?

I don't know if I'd blame Doug Lowenstein directly for this one. That said, he now has the opportunity to do the right thing by calling up the people responsible for the C&D notice and telling them to knock it off. The ESA and ESRB have plenty of image problems, but a parody T-shirt is NOT one of them.

Meh, well, I've said it before and I'll say it again, do not confuse the fact the Doug Lowenstein's goals benefit us with him 'being on our side', he is not, his job is to assure coninued success and profit for the ESA.

Whilst I have respect for the man, I don't think he cares what people think of gamers as long as they continue to buy games.

This current act is bordering on JT-ism though, and that's just a bit disconcerting.

Samson Effect
This is sadly the mark of a mindless corperation that can not stay slim and streamline itself for the new age its a huge blind monster striking out at easy targets,once it gets a taste of cheap bood it will not back down easily look at Sony and its unfair and illicit attack on importers.

If this blog were to get sued, by JT, Doug lowestien, or some other censorcrat freak, i think everyone here should chip in to help dennis win the case.

@Mazinger-Z well for one GP didn't put up a picture of the E logo so the ESA would be even dumber to sue GamePolitics than it is to sue Kotaku

Is this a RIAA clone in the making?

Wow, that's unbelieveable. You'd think that after all the battles for free speech the ESA's fought, that they wouldn't have their heads so far up their asses to try and take it away from a news blog.

I should get my mom to make a shirt like that, with 'Freedom of Speech - Rated E for Everyone' to make all the folks at Kotaku happy. ;) I must've read that phrase at least a dozen times there.

Long and short of it: ESA, you can't win this fight. No chance in hell. Cease, desist, and kindly pull your collective head out of your ass.

Hey, GP, let us know when the ESA threatens you over this. :)
 
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