Jack Thompson Wades Into Fallout 3 Trailer Controversy

If you thought being permanently disbarred would cause Jack Thompson to ride off into the sunset, guess again.

The ex-attorney is currently seeing fire and damnation in Bethesda's recent recall of Fallout 3 trailer videos. A rambling letter from Thompson to the Federal Trade Commission accuses the ESRB of duplicity in the enforcement of its advertising guidelines:

The ESRB’s [advertising] Principles and Guidelines are not intended to protect the public.  They are obviously intended to protect the video game industry from the public backlash prior to a hyperviolent game’s commercial release.   The ESRB, by allowing such violence in games but not in the advertising is institutionally mandating the cloaking of a game’s real content from the public in advertising.

Thus, the ESRB is actively using its “watchdog” muscle to intimidate game developers into participating in the ESRB’s long-standing shell game by which it has tried to hoodwink Congress and the American people into thinking that the video game rating system is working, that the ratings are reliable, and that minors are being protected from the sale of “Mature” games... 

And, even though Take-Two has zilch to do with Fallout 3, Thompson cannot resist taking a shot at the GTA publisher:

Take-Two, for example, knows that if it adhered to “truth in advertising,” most of its Grand Theft Auto games never would have made it out of the warehouse.  Take-Two has figured out how to collaborate with the ESRB in this shell game by which false advertising cloaks the real nature of their games until the games are released, and then it is too late...

 

Bethesda’s only sin was that it advertised truthfully what its game Fallout 3 is all about.  The ESRB’s idiotic but telling response has fashioned a noose that I expect either the FTC or Congress to slip around the ESRB’s neck...

Full letter after the jump...

William E. Kovacic, Chairman

Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580 Fax to 202-xxx-xxxx

Re:  Fraudulent and Deceptive Advertising Mandated by the Entertainment Software

       Rating Board (ESRB)

Dear Chairman Kovacic:

The video game industry became embroiled in yet another controversy this week that reveals the patent fraud and deception actively engaged in by its Entertainment Software Rating Board.  This requires swift action by the FTC to end this ongoing fraud by the ESRB.  If the FTC does not act, Congress will:  Please note:

Yesterday video game developer Bethesda released a hyperviolent game called Fallout 3.    It is rated “Mature” by the ESRB, and its ESRB descriptor states that the game contains the following content: [graphics of Fallout 3 content descriptors]

Prior to this game’s release, Bethesda provided “trailers” for the game that correctly and accurately depict the content in the game, including slow motion exploding of heads.

The ESRB, aware of the truthful content in these trailers, threatened Bethesda with punishment for alleged violation of its Advertising Principles and Guidelines through the ESRB’s Advertising Review Council.  As a result, Bethesda, in a panic, then asked video game sites to whom it gave the advertising trailers to remove the trailers.  Bear with me, please, because now we come to the patent fraud by the ESRB that may amount to criminal activity, proof of which is  found at http://www.esrb.org/ratings/principles_guidlines.jsp.  The relevant portions of the ESRB ARC Principles and Guidelines are underscored below:

PRINCIPLES

1. An advertisement should accurately reflect the nature and content of the product it represents and the rating issued (i.e., an advertisement should not mislead the consumer as to the product’s true character).
2. An advertisement should not glamorize or exploit the ESRB rating of a product.
3. All advertisements should be created with a sense of responsibility toward the public.
4. No advertisement should contain any content that is likely to cause serious or widespread offense to the average consumer.
5. Companies must not specifically target advertising for entertainment software products rated “Teen,” “Mature” or “Adults Only” to consumers for whom the product is not rated as appropriate.

GUIDELINES

In applying the above Principles when evaluating advertisements, ARC will focus on the following core Guidelines. The scope and weight of each Guideline shall vary on a case-by-case basis in accordance with the demographic for which each product and its associated advertising, is intended and in relation to the advertising medium involved. While the Principles set forth the scope of ARC’s review, the Guidelines are general parameters intended to further assist companies in providing responsible, appropriate, and accurate advertising. These Guidelines are not intended to restrict or impede creative and/or innovative advertising. Rather, the following areas merely highlight certain types of content that publishers should avoid when creating advertisements.

1. ESRB Ratings and Truth and Accuracy in Advertising

                   Misrepresentations regarding the character and/or rating of a product

                   Inaccurate or false content

                   Exploitation of an ESRB rating

2. Violence

                   Graphic and/or excessive depictions of violence

                   Graphic and/or violent depictions of the use of weapons

                   Graphic and/or excessive depictions of blood and/or gore

Here, then, is the problem that amounts to fraud:  The ESRB seeks to enforce two mutually exclusive advertising Principles and Guidelines, and it is doing so in order to hide, as opposed to reveal, the true content of games from the public, most notably parents. 

More specifically, the trailers for Fallout 3 in fact comply with Principle #1, above, in that they “accurately reflect the nature and content of the product it represents and the rating issued.”  The trailers show the exploding heads in the game.  They show the violence that is the hallmark of the game.  As the narrator in the following trailer states, the exploding heads “never get old.”  See http://www.gamepolitics.com/2008/10/28/eve-launch-fallout-3-trailer-unexpectedly-yanked

However, the ESRB, at the same time that it supposedly mandates “truth in advertising” mandates adherence to a completely contradictory Principle #4: “No advertisement should contain any content that is likely to cause serious or widespread offense to the average consumer.”

The ESRB cannot insist upon both Principle 1 and Principle 4.  Either advertising must be truthful as to what is really in the game, or ads cannot cause offense.  The ESRB can’t have it both ways.  Proof of the disharmony in these two Principles is that the ESRB strong armed Bethesda into pulling the trailers precisely because they were accurate as to the content in the game.

Look then at the disharmony also in the ESRB “Guidelines” as well, above:  Under Guideline #1, there must not be “Misrepresentations regarding the character and/or rating of a product” or  “Inaccurate or false content,” in the advertising, but Guideline #2 mandates that game advertising shall not contain “Graphic and/or excessive depictions of violence” or “Graphic and/or violent depictions of the use of weapons” or “Graphic and/or excessive depictions of blood and/or gore.”

Wait a minute.  If the advertising for Fallout 3 is to be truthful and accurate it MUST reveal the endemic and high levels in the game of blood and gore, the graphic and violent use of weapons, and the graphic depictions of violence!           

Let me then conclude by pointing out the obvious:  The ESRB’s Principles and Guidelines are not intended to protect the public.  They are obviously intended to protect the video game industry from the public backlash prior to a hyperviolent game’s commercial release.   The ESRB, by allowing such violence in games but not in the advertising is institutionally mandating the cloaking of a game’s real content from the public in advertising.

Thus, the ESRB is actively using its “watchdog” muscle to intimidate game developers into participating in the ESRB’s long-standing shell game by which it has tried to hoodwink Congress and the American people into thinking that the video game rating system is working, that the ratings are reliable, and that minors are being protected from the sale of “Mature” games.  Nothing could be further from the truth.  The ESRB is in fact mandating false advertising to protect the industry and the ESRB/ESA as well.

The current uproar over Fallout 3 and the above examination of its two totally contradictory sets of Principles and Guidelines prove that the ESRB is simply a video game  industry that is fraudulently facilitating the sale of inappropriate interactive sex and violence to minors in violation of federal and state RICO and Fraudulent and Deceptive Trade Practices laws.  Take-Two, for example, knows that if it adhered to “truth in advertising,” most of its Grand Theft Auto games never would have made it out of the warehouse.  Take-Two has figured out how to collaborate with the ESRB in this shell game by which false advertising cloaks the real nature of their games until the games are released, and then it is too late.

I call upon the FTC to act today to end this fraudulent, illegal charade by the ESRB.  If there is to be “truth in advertising” then game advertising must accurately reflect what is in the games sold.

Bethesda’s only sin was that it advertised truthfully what its game Fallout 3 is all about.  The ESRB’s idiotic but telling response has fashioned a noose that I expect either the FTC or Congress to slip around the ESRB’s neck.  Please do so.  If you don’t, I shall.

Regards, Jack Thompson 

Copies:  ESRB, ESA, ECA

              Congressman Fred Upton

              Media