The United States Supreme Court is scheduled to address an appeal of a Californian videogame law tomorrow, September 29.

Entertainment Merchants Association v. Schwarzenegger (formerly known as The Video Software Dealers Association (VSDA) v. Schwarzenegger), revolves around a Californian law that banned the sale of certain videogames to anyone under 18 years of age. First signed into law by Schwarzenegger in 2005, the law was rejected again in February of 2009 by the 9th Circuit Court of California, which upheld an earlier 2007 ruling that deemed the law unconstitutional.

Schwarzenegger and California Attorney General Jerry Brown appealed to the Supreme Court in May of this year, marking the first time a case involving the restriction of violent game sales to minors has ever been considered by the top court of the United States.

As part of the proceedings, The Supreme Court will also decide whether to accept the amicus brief filed by California State Senator Leland Yee (D) in July of 2009. In the brief, Lee, who authored the original statute at the center of the whole case, argues why the Supreme Court should approve the state of California’s petition for a full hearing. He was supported in the brief by the California Psychiatric and California Psychological Associations.

The Supreme Court’s decision could take a few days or more. A final decision should be made public by next Monday, October 5.

Update: Just to clarify, The Supreme Court did consider a similar topic when ruling on American Amusement Machine Association et al. v Kendrick et al. in 2001, when it denied the City of Indianapolis' petition for certiorari. That case centered on an attempt by the city to limit the display and operation of currency-based machines deemed harmful to minors.

The Entertainment Merchants Association (EMA) has informed replicators and disc manufacturers on the steps they may need to take in order to comply with the Consumer Product Safety Improvement Act (CPSIA).

The act calls for “children’s products” to undergo testing for lead and “children’s toys” to be tested for phthalates (industrial compounds). According to Home Media Magazine, the EMA has asked for an exemption for physical media, but the broad scope of the act appears to have left many questions on both sides of the fence as to what exactly needs to be tested.

Previous testing by Cinram, Arvato Digital Services, Technicolor and The Walt Disney Co. have shown “neither lead nor phthalates appear in significant levels in home entertainment products.”

Sean Bersell, EMA Vice President of Public Affairs, commented on the confusion:

There’s a lot of uncertainty out there. As the Consumer Product Safety Commission (CPSC) starts to provide more guidance … some of these issues will resolve themselves.

As GamePolitics reported yesterday, the Entertainment Software Association has filed suit against the Chicago Transit Authority. The video game publishers' lobbying group hopes to overturn the CTA's ban on ads for M and AO-rated games on its vehicles and facilities.

The Media Coalition, an association that defends the First Amendment rights of producers and consumers of First Amendment protected material, has issued a press release announcing its support for the ESA in the case. Executive Director David Horowitz commented on the situation:

Ex-[Illinois] Governor Blagojevich spent hundreds of thousands of dollars unsuccessfully to defend a law that barred minors from buy or renting similar video games before it was struck down as unconstitutional. The Chicago Transit Authority should repeal this ill-conceived ordinance rather than using scarce resources to fight this in court and get the same result.

The ESA, which represents U.S. video game publishers, is a Media Coalition member as is the Entertainment Merchants Association, which represents video game retailers.

The Entertainment Consumers Association, which represents the interests of gamers, is also a Media Coalition member.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

Earlier this week, GamePolitics reported on “benefit denial,” a loss-prevention technology proposed by game retail trade group the Entertainment Merchants Association. The EMA plan would disable movies and video games until unlocked at the point of sale.
 
Not everyone thinks it’s a good idea.
 
Writing for CNET, technology columnist Don Reisinger dubs the plan "a loser."

Piracy and theft is indeed a problem in the video game industry. But it's not so bad that it requires games to be shipped in an unactivated state. Moreover, game piracy is really a bigger problem on the PC than on consoles... And since most of the issues affect the PC side of the business, not even benefit denial will be able to stop piracy...

However, EMA Public Affairs VP Sean Bersell told us that benefit denial is “all about retail theft,”  not piracy. He points to a comment to Reisinger’s article posted by Capgemini, the firm commissioned by the EMA to evaluate the feasibility of benefit denial.

[The benefit denial study], announced by the EMA, doesn't even mention piracy.  And that's because the whole project is about elimination of physical theft of discs, whether DVDs, or CDs, or games on optical discs. It has nothing to do with piracy. Zero.

Reisinger also raises concerns about how well this technology will work with second-hand games, whether Internet connectivity will be a factor, and if the Big 3 console makers' participation will be required.  Bersell commented:

We are not talking about DRM or other software-based technology. The technology to which we are referring would be a physical lock that is opened via radio frequency in the store at the point of sale...
 
The purpose is to make it easier for the consumer to purchase the product... And since EMA is pursuing this and we have been protecting the First Sale rights of retailers and their customers for 28 years, I can assure you that nothing in this will interfere with the rights of consumers to sell, lend, or give away their used games.

DOCUMENT DUMP: Grab a copy of the benefit denial study here.
 
-Reporting from San Diego, GamePolitics Correspondent Andrew Eisen...

If you purchase your video games from local retailers you’ve no doubt gone through the inconvenience of trying to track down a store associate to release your selection from its display cabinet prison. Or perhaps you’ve dealt with GameStop’s annoying habit of opening games and storing the discs behind the counter.
 
Hey, it’s an imperfect world where people steal stuff so it’s understandable why retailers take measures like this. But what if there was a better way?
 
The Entertainment Merchants Association, a trade association which represents a large segment of North American video game and DVD retailers, thinks it may have a solution which could save the retail industry billions by reducing costs, curbing theft and potentially making the purchasing experience more pleasant for the consumer.
 
The EMA’s solution is “benefit denial” technology that would disable movies and video games until unlocked at the point of sale - sort of like gift cards which have no value until activated by a sales clerk. EMA president Bo Andersen commented on the plan:

It is intuitive that, if we can utilize emerging technology to reduce the shrink in the DVD, Blu-ray discs, and video game categories and eliminate barriers erected to deter shoplifting, consumers will have easier access to the products, additional retail channels will carry these products, and costs will be eliminated from the supply chain.

Baring obstacles such as a lack of accepted standards for such an activation system, the need for staff training, and the cost of implementation, the EMA believes such a solution could debut in late 2010.
 
Via: Gamasutra
 
-Reporting from San Diego, GamePolitics Correspondent Andrew Eisen...

While most of the video game world's attention next week will be focused on the Los Angeles Convention Center and the glitz surrounding E3, a small group of industry professionals will meet to tackle environmental concerns.

On Monday the Greener Gaming Gathering, billed as a "video game sustainability luncheon" will take place in Burbank. The event is sponsored by AGI Polymatrix, which manufactures media packaging and is being held in association with game retailers trade group the Entertainment Merchants Association.

Speakers at the invitation-only event will include Wal-Mart's senior buyer for video game software, Darin Dickson. Cody Sisco from Business for Social Responsibility will make a presentation and an expert panel will discuss sustainability issues related to replication, packaging and transportation of video games.

GP: It's encouraging to see the video game industry thinking proactively on environmental issues.

The Media Coalition, a free speech defense trade group has criticized California's Supreme Court appeal of a lower court decision striking down its violent video game law as unconstitutional.

Media Coalition Executive Director David Horowitz said in a statement:

We are very disappointed that the California Governor and Attorney General have decided to spend the state’s scarce resources to ask the Supreme Court to carve out a new exception to the First Amendment.

 

The Ninth Circuit Court of Appeals earlier declined the state’s invitation to create a new class of speech outside of the First Amendment. This is settled law. In recent years, in addition to California, similar laws in Indianapolis, Michigan, Illinois, St. Louis County, Minnesota, and Washington attempted to ban video games with certain violent content were uniformly found unconstitutional.

Media Coalition members include video game industry trade groups the Entertainment Software Association (game publishers) and Entertainment Merchants Association* (game retailers). It was these two entities which originally brought suit against the California law in 2005.

The Entertainment Consumers Association is also a Media Coalition member.

* Prior to its 2006 merger with the Interactive Entertainment Merchants Association, the Entertainment Merchants Association was known as the Video Software Dealers Association, and the California case continues as VSDA v. Schwarzenegger.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

As GamePolitics has reported, California is appealing the constitutionality of its 2005 video game law to the U.S. Supreme Court. Reaction by the video game industry has been both swift and blunt.

Entertainment Software Association CEO Michael Gallagher issued a statement criticizing California's decision to petition the Supreme Court:

California’s citizens should see this for what it is—a complete waste of the state’s time and resources. California is facing a $21 billion budget shortfall coupled with high
unemployment and home foreclosure rates. Rather than focus on these very real problems, Governor Schwarzenegger has recklessly decided to pursue wasteful, misguided and pointless litigation.  

We are confident that this appeal will meet the same fate as the State’s previous failed efforts to regulate what courts around the country have uniformly held to be expression that is fully protected by the First Amendment. California’s taxpayers would be better served by empowering parents and supporting the ESRB rating system.

Meanwhile, Sean Bersell (left), VP of Public Affairs for the Entertainment Merchants Association, forwarded a statement to GP:

It boggles the mind that, on a day when the state of California finds itself in the worst fiscal crisis it has ever faced and is considering massive layoffs of teachers and cuts to public services, the state would choose to waste tens of thousands of dollars on pursuing this frivolous appeal.

This law was found by two lower courts, relying on long-established legal precedents, to be unconstitutional as an infringement of the First Amendment. There have been eight similar laws enacted around the nation this decade and every single one has been found unconstitutional on similar grounds. There is no reason to expect a different outcome in the Supreme Court.

So far, this case has cost the state of California approximately $400,000 just in legal fees and court costs that it has had to pay the plaintiffs. This doesn’t even include the state’s legal fees and costs. And if this appeal is unsuccessful, as it will be in all likelihood, the state will owe the plaintiffs even more in legal fees and court costs.

The taxpayers of California should demand that their elected officials stop wasting precious tax dollars on this quixotic quest.

Both the ESA and the EMA (under its former name VSDA) are parties in the California case. The EMA maintains a web page listing background on VSDA v. Schwarzenegger.

Utah Gov. Jon Huntsman's dramatic veto of the Jack Thompson-conceived HB 353 has drawn reaction from a variety of quarters:

We support the efforts of the Entertainment Merchants Association and other industry groups in battling this legislation. It was extremely broad and could have fostered ancillary anti-consumer consequences, such as pushing retailers and publishers to stop promoting and using ESRB ratings, which have been extremely effective in educating consumers about game content. Jennifer Mercurio, Director of Government Affairs, Entertainment Consumers Association

A very laudable decision. National Coalition Against Censorship

This is an absolute win for families. Utah’s parents will benefit from Governor Huntsman’s leadership and thoughtfulness on this issue. His decisive action helps caregivers and prevents businesses from being opened to unproductive, wasteful civil litigation and needless expense. Parents can be assured that the strength of the ESRB rating system remains intact and continues to serve as a valuable resource and will continue to effectively serve them. Michael Gallagher, CEO, Entertainment Software Association

EMA and video game retailers are grateful to Governor Huntsman for his courageous veto of this ill-conceived and inappropriate initiative. We are heartened to see an elected leader look beyond the emotion, rhetoric, and distortions surrounding video games and evaluate a proposal on its merits. As we have consistently noted, House Bill 353 would have been counterproductive for the consumers of Utah, because it would likely have led retailers to abandon their commitments to enforce the video game and motion picture ratings at the point of sale. Sean Bersell, VP of Public Affairs, Entertainment Merchants Association

We appreciate Governor Huntsman’s decision to defend the Constitution and protect retailers by vetoing this bill. The bill may have been well intentioned but it would have undermined the video game and movie rating systems and possibly book age recommendations while leaving local businesses with the constant threat of frivolous lawsuits. David Horowitz, Executive Director, Media Coalition
 

GP: Via e-mail, we've asked Utah Eagle Forum boss Gayle Ruzicka for her reaction. We've asked HB 353 sponsor Rep. Mike Morley, too. So far, we've received no response from either.

(more to follow as we receive them...)

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

UPDATED

Having been passed overwhelmingly by the Utah House and Senate, HB 353, the Jack Thompson-conceived video game/movie bill, is now with Gov. Jon Huntsman (R).

The Guv can decide to sign the measure into law or veto it. He may also do nothing, in which case the bill will automatically become law. Given that Utah conservatives have portrayed the bill as protective of children and Huntsman is rumored to have 2012 presidential aspirations, it's highly unlikely that he will exercise his veto power.

With HB 353 landing on Huntsman's desk, game publishers' lobbying group the Entertainment Software Association has upped the pressure ante a bit. The ESA-owned Video Game Voters Network is running an e-mail campaign which urges Huntsman to veto HB 353.

ESA VP of Communications and Industry Affairs Rich Taylor also criticized the bill in an interview with Salt Lake City public radio station KCPW:

Essentially, what it does it has the unintended consequence of creating liability exposure which could force many retailers to either abandon their voluntary policies to enforce video game rating systems, or maybe perhaps choose not to sell video games at all.

Here you have broadly drawn legislative language that seeks to address a fairly small instance of retailers failing to enforce their policies as promoted. The vast, overwhelming majority of retailers are complying, but now they fall within this swinging sight of harm that this legislation introduces.

For his part, Jack Thompson has challenged ESA CEO Mike Gallagher to a debate on the bill, but that's an unlikely occurrence.

Assuming that Huntsman signs the bill into law, it will take effect on January 1, 2010. If and when Huntsman signs, the video game industry will decide whether to challenge the measure in federal court.

Also unclear at this point is where the motion picture industry stands on HB 353. If the ESA and EMA (game retailers) sue, will the MPAA join in?

UPDATE: An industry executive who has been actively involved in the fight against HB 353 assures GamePolitics that the MPAA and the National Association of Theatre Owners are fully engaged in opposition to the bill.
 

The video game industry is beginning to respond - and not in a positive way - to yesterday's passage of HB353, a Jack Thompson-conceived bill, by the Utah House of Representatives.

As GamePolitics reported late yesterday, the Entertainment Merchants Association, which represents a large bloc of game retailers, remains opposed to the measure.

That news seemed to contradict bill sponsor Rep. Mike Morley's assertion during yesterday's hearing that amendments to the proposal had caused "retailers" to drop their opposition. However, Morley was apparently referring to the more general-purpose Utah Retail Merchants Association (more on that below).

The Escapist heard from Dan Hewitt of game publishers' trade group the ESA:

[HB 353 is] a solution in search of a problem. The fact is, Utah has a 94% [retailer ratings] enforcement rate when it comes to video games. Also, Utah state legislators are unfairly targeting video games. Representative Morley's anti-video game bill would expose game retailers to frivolous lawsuits if the store promotes the ESRB rating system.

The perverse effect of this bill is that Utah retailers will stop promoting the ESRB rating system, which has been applauded by media watchdog groups like the National Institute on Media and the Family and the Federal Trade Commission. In short, this is a step back for parents and undercuts the positive work of the ESRB and others who promote the tools and resources available to parents.

The 9th Circuit Court has affirmed a U.S. District Court decision which struck down California's 2005 violent video game law.

As GamePolitics reported last November, a three-judge panel of the 9th Circuit heard the state's appeal in Sacramento. In upholding the District Court's 2007 ruling, the 9th Circuit rejected several research studies presented by the states as failing to demonstrate a causal link between violent video game play and negative behavior:

Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.

The Court also rejected as unconstitutional a section of the law requiring retailers to label violent games with a four-inch square label with "18" printed on it.

Reactions to the ruling are beginning to come in. Jennifer Mercurio, Director of Government Affairs for the Entertainment Consumers Association, said:

We couldn’t be happier. Federal courts have found all nine legislative attempts to curtail the sale of violent video games invalid under the First Amendment, definitively showing that video games are protected speech, just like other content such as books, comic books, movies and music.

Bo Andersen, CEO of game retailers' group the Entertainment Merchants Association, said:

Retailers are committed to assisting parents in assuring that children do not purchase games that are not appropriate for their age. Independent surveys show that retailers are doing a very good job in this area, with an 80% enforcement rate, and retailers will continue to work to increase enforcement rates even further. The court has correctly noted that the state cannot simply dismiss these efforts.

I understand that some government officials will push for the state to ask the U.S. Supreme Court to review this decision. The state should not acquiesce in this demand, particularly in light of its budget difficulties. The state has already wasted too many tax dollars, at least $283,000 at last count, on this ill-advised, and ultimately doomed, attempt at state-sponsored nannyism.

ESA CEO Mike Gallagher called the ruling "a win for California's citizens."

With the 9th Circuit's rejection of the California video game law, the question now becomes whether Gov. Schwarzenegger will appeal the ruling to the U.S. Supreme Court.

FULL DISCLOSURE DEPT: The Entertainment Consumers Association is the parent company of GamePolitics.

The Entertainment Merchants Association, the trade group which represents the interests of numerous video game retailers, has weighed in against game-oriented legislation currently before the Congress.

GamePolitics readers will recall last month's report that Rep. Joe Baca (D-CA) and Rep. Frank Wolf (R-VA) had proposed a measure in Congress which would require cigarette-like warning labels for any game rated T (13+) or higher by the ESRB.

The EMA has termed the proposed legislation "unnecessary."

As we have previously noted, Rep. Baca has proposed a number of bills targeting video games over the years. To date, none have passed. In 2008 Esquire named him to its list of Ten Worst Members of Congress.

UPDATE: We've received the EMA's full statement on the Baca bill:

Retailers educate parents about the ESRB video game ratings and content descriptors and enforce the "Mature" rating at the point of sale. Last year, the Federal Trade Commission found that children it sent into video game stores to buy Mature-rated games were turned down 80% of the time.

 

The video game turn-down rate is higher than the turn-down rate for movie theaters and R-rated tickets, DVD retailers and R-rated and “unrated” DVDs, and music retailers and “Parental Advisory”-labeled albums. In fact, it is the highest turn-down rated ever recorded for an entertainment category in any of the undercover shopper surveys the FTC has conducted since 2000.

The Media Coalition, a free speech defense trade group which numbers the Entertainment Software Association (game publishers) and Entertainment Merchants Association (game retailers) among its members, has a new chair.

As reported by Video Business, First Amendment scholar and author Chris Finan (left) will succeed the EMA's Sean Bersell at the reigns. Of the transition, Bersell commented:

I am extremely pleased that Chris Finan, who is incredibly knowledgeable about free speech issues and well respected, is assuming the chair of Media Coalition. The leadership and credibility he brings to our efforts will enhance our ability to counter government censorship of publications and entertainment.

Speaking about his new assignment, Finan said:

Media Coalition plays a critical role in protecting what the American people can see, read and hear.

The Entertainment Merchants Association, the trade group which represents a large slice of video game retailers, has announced that it is accepting applications for its 2009 Entertainment Merchants Association scholarship.

Grants are awarded to incoming freshman as well as current college students. In order to be eligible, the student, a parent or spouse must work for an EMA-member company. Since 1987, more than 215 students have received over $1 million for college expenses.

EMA CEO Bo Andersen commented on the scholarship program:

The EMA Scholarship Foundation is more important than ever in these tough economic times. We are pleased to be able to assist the employees of EMA member companies and their immediate family members to be able to afford higher education.

Click here for scholarship application details.

In a no-holds-barred interview with Crispy Gamer, Entertainment Consumers Association president Hal Halpin dishes on the uneasy relationship between Washington, D.C. and the video game community.

As part of his leadership role with the ECA, Hal does quite a few interviews, but this one with CG's James Fudge is probably the most in-depth yet. Here are some of Hal's thoughts:

On game publisher group the ESA's new (in 2008) practice of making campaign donations:

The [ESA] represents the rights of game publishing companies and as such has a duty to do what it can to influence legislators by lobbying. I know that starting up a PAC (Political Action Committee) was a decision that they grappled with for over a decade... PACs can be effective tools, but yes, you do run the risk – nowadays – that the ends may not justify the means...

On game ratings and whether the industry does enough to keep mature-themed games away from minors:

I’ve been a fan of ESRB for quite some time. Of all of the ratings systems... it really is the most comprehensive and valuable... That said, there’s always room for improvement. Perhaps ESRB having more independence from the ESA would be one great step. Another might be to work more closely with us... which we’re working on...

 

I do [think the industry is well at keeping M-rated games away from minors]...

On supposed tensions between the ESA (publishers group) and the ECA (consumers group):

We should be clear that the ESA represents the rights of game publishing companies, not gamers... It’s a trade association that looks after the interests of their member corporations... That said, much of the legislative work that the ESA has done over the years, with regard to First Amendment in particular, has benefitted the sector as a whole – gamers included.

 

As Mike Gallagher (ESA president) and I have discussed several times, the vast majority of the time ESA and ECA are on the same page... but there are clearly other times where our interests are necessarily divergent. Inherently, Mike’s issues will sometimes be in opposition to the best interests of consumers solely because they’re in the best interests of publishing companies...

On frequent game violence critic Sen. Joe Lieberman (I-CT):

Joe Lieberman has been largely misunderstood and painted with a very broad brush in my opinion. While I haven’t agreed with much of what he has said in the past, he alone among legislators was responsible for effecting non-legislative change in our business and did it with a lot of class, I might add.

 

Again, back when I was running [game retailers group] IEMA, I received a call from one of his staff inviting me to his office in Hartford. We had a frank meeting in which he requested that game retailers begin carding for the sale of mature-rated games in much the same way that movie theatre owners were doing, via self-regulatory efforts, with R-rated movies. The IEMA retailers... met the challenge head-on and reacted quickly and efficiently – changing the way in which games were sold, forever.

On game rentals and used game trade-ins by consumers, which some publishers and developers would like to see ended:

I understand the concerns that developer friends of mine have about not getting a second bite of the apple... In the movie business, they produce a theatrical version and then DVD, Blu-ray, Video on Demand (VoD), PSP and pay-per-view versions...

 

[Game biz types] see rental and used as businesses in which they don’t get to participate. And while I understand and appreciate their perspective... I’m still not convinced that rental and used are bad for the sector. We’ve witnessed how rental has provided a low-cost venue for people to try before you buy; same for used...

On the U.S. Supreme Court and its potential impact on video games:

Well, [a change in the balance of the court] will most definitely present a problem for the industry, but not necessarily consumers. The more conservative judges are also the ones that tend to side with intellectual property owners over consumers, for instance. Tech policy is in for a major shift from the right to the left in my opinion, and that would be very good for consumers, but quite disconcerting for the IP-concerned trade associations (MPAA, RIAA and ESA).

 

We’ve also heard that the conservative judges would be more likely to be open to anti-games/gamer bills, so a shift to the more liberal side would be good for both the trade and consumers in that regard.

Hal also points interested gamers to a detailed listing of ECA's position statements.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

This morning when the state of California argues before the U.S. 9th Circuit that its 2005 video game law is constitutional, at least one member of the Court's three-judge appeal panel will have some familiarity with games.

As GamePolitics has previously reported, Judge Alex Kozinski at one time penned game reviews for the Wall Street Journal. On a more serious note, Kozinski has also apparently survived a June scandal in which sexually graphic images were found on a personal website which he maintained.

Other panel members include Judge Sydney Thomas and Judge Consuelo Callahan (left). Callahan has been dubbed The Dancin' Queen of the Ninth Circuit thanks to her penchant for beaking into tap routines (GP: You can't make this stuff up.):

A hoofer with a sense of humor, Callahan likes to surprise judicial and legal gatherings by starting discussions about serious topics and ending with a quip about appellate judges who tap dance around issues. She then pulls off her black robe to reveal a sequined costume and tap shoes.

She's been known to hop on a tabletop or in one case on a judicial bench during these special events and do some pretty impressive steps. "I may be the highest ranking tap dancer in federal court," Callahan said with a grin during a recent interview in her chambers in the Sacramento federal court building. "It is fun and it has a certain shock value."

Shock value, indeed. Wouldn't it be fab if Judge Callahan broke out the tap shoes this morning?

Today's hearing will take place at 9:30 am PST at the McGeorge School of Law in Sacramento. In a press release, State Senator Leland Yee (D), architect of the contested video game law, offered his view:

California’s violent video game law properly seeks to protect children from the harmful effects of interactive, ultra violent video games. Our efforts to assist parents in the fight to keep these harmful video games out of the hands of children should survive Constitutional challenge under all levels of judicial review.
 
Based on an extensive body of peer-reviewed research from leading social scientists and medical associations, we narrowly tailored this law to serve the State’s compelling interest in protecting children. I am hopeful that the 9th Circuit will overturn the lower courts decision and help empower parents with the ultimate decision over whether or not their children play in a world of violence and murder.

Game retailers group the Entertainment Merchants Association, along with game publishers group the ESA, are plaintiffs in the case. The EMA recapped the legal fight surrounding the California law in its own press release - hit the jump for the details.

Game consoles may be full of noxious stuff, but game packaging is green, baby.

At least, that's the word from the Entertainment Merchants Association, the trade group which represents hundreds of video game and DVD retailers.

In partnership with the Content Delivery and Storage Association, the EMA has just released the results of a study into what consumers do with game and DVD packaging. Conducted by the NPD Group, the research makes games seem environmentally friendly:

• Rather than discarding video game and DVD packaging, consumers overwhelmingly store their video games and DVDs in their original cases
• when consumers no longer want to keep a game or DVD, they rarely throw it away or recycle it
• 45 % of DVD owners give the title to someone else, as will 24 % of game owners
• 54% of game owners will trade it in or sell it; the trade/sell rate is 27 % for DVDs
• 89% of DVD owners and 88 % of game owners store their DVDs and games in their original cases
• only 6% of DVD owners and 5% of video game owners throw away or recycle the cases.

Of the results, EMA CEO Bo Andersen commented:

In packaged home entertainment, consumers view the packaging cases as part of the product and not something to be tossed. The cases provide product protection, allow easy title identification, and carry the artwork that is integral to the consumer’s association with the title.

GP: An interesting and obvious conclusion is that trading in used games is not only good for consumers, it's good for the environment. Now, about that landfill full of E.T. cartridges...

So, GP readers, what do you do with your old games?

Toward the end of a Games, Politics & Policy panel I was moderating at PAX yesterday, a guy in the audience asked a question that was really more of a challenge. He wanted (demanded?) to know whether each of the four panel members and myself as moderator played games.

As it turned out, we did. Everyone explained their own gaming habits. I mentioned that I've reviewed games for more than a decade for the Philadelphia Inquirer and that if it's out there, I've probably played it. The questioner seemed satisfied.

But that particular question stuck with me after the session. The more I thought about it, the more frustrated I became.

The panel, you see, was packed with experts who work hard to make the gaming scene better. At least two attorneys were seated at the table. Jennifer Mercurio works on policy and legislative issues for the Entertainment Consumers Association (ECA). Bo Andersen heads the Entertainment Merchants Association (EMA), which represents video game retailers. Both spoke passionately about the First Amendment rights of game creators, game sellers and game consumers.

Also on board were Jason Della Rocca, executive director of the International Game Developers Association (IGDA) and Alex Quinn, head of Games For Change. Jason workes tirelessly on behalf of the people who make the games we love. Alex spearheads a movement to exploit the power of games in positive ways.

As it turns out, they all game to some degree, but - so what? Do you need to have a level 70 WoW character to be a good advocate for games? If I blow my knee out playing softball, do I care if the orthopedic surgeon has a catcher's mitt at home? No. I just want her to use her professional skills to patch me up.

And so it is with our panelists. I retrospect I feel that the question was insulting, although probably not intentionally so. What I wish I had said to the guy was: Sure, it's good to play games in order to understand their context, but professional expertise on issues like the First Amendment, Fair Use and Net Neutrality transcends the game space. And, as a gamer, it's comforting to know that skilled people are fighting on my behalf. Whether they are also fighting the Horde on WoW is not so important to me.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

Q: Who sponsored New York's video game law?

A: There were two identical versions, one in the NY State Assembly and another in the NY State Senate. The Assembly version (A.11717) was sponsorsed by Assemblyman Joseph Lentol (D, Brooklyn). The Senate version (S.6401-A) was sponsored by Sen. Andrew Lanza (R, Staten Island).

Q. How was it voted on in the legislature?

A. The Assembly version was passed 137-1. The Senate version passed 61-1.

Q. How did the bill get to be law?

A. After approval by the Assembly and Senate, Gov. David Paterson (D) signed it into law on July 22nd.

Q. Is this the same legislation that former Gov. Spitzer was favoring before his hooker incident cost him his job?

A. No. The bill under consideration last year would have made selling an M-rated game to a minor a felony crime. There is no such provision in this law.

Q. What does the law require?

A. The law requires:

• Video games sold by retailers in New York State which have a "standardized" and "commonly used" (e.g., ESRB)  rating must display that rating on the outside of their packaging.
• New console systems sold in NY State must have parental controls
• A 16-member advisory council, appointed by the Governor, will a.) study the relationship between violent media and youth violence b.) evaluate the effectiveness of the ESRB rating system and make recommendations concerning it c.) study the potential of creating a parent-teacher violence awareness program to identify and assist potentially violent student

Q: Does the law apply to games sold online as well as in retail stores?

A: No. Although Sen. Lanza's website initially claimed that it did, a reading of the legislation shows that "mail order" businesses, which under NY law include online retailers, are exempt from the rating requirements. GamePolitics contacted Sen. Lanza's staff, which said that the online comment was a mistake and does NOT apply. The law applies ONLY to so-called "brick and mortar" retailers.

Q: Are the current ESRB ratings & content descriptors sufficient to meet the requirements of the law?

A: Yes. As long as a video game available at retail displays an ESRB rating and its associated content descriptors (and they already do), the retailer is in compliance.

Q. What about small publishers or independently created games which are not submitted for an ESRB rating?

A. As long as they are sold via online, no problem. They aren't required to be rated.

Q. Are used games subject to the law?

There is a good deal of buzz this week surrounding video game-oriented legislation passed overwhelmingly last month by the New York state legislature. New York Gov. David Paterson (left) must decide by July 23rd whether he will sign the bill into law or let it die.

In a story broken by GamePolitics on June 24th, we reported that the NY State Senate passed, by a 61-1 vote, Sen. Andrew Lanza's bill which:

• requires that games carry a rating
• requires games consoles to have parental controls
• establishes a 16-member advisory council on media violence

While the various segments of the video game industry have taken no unified position to date, the Binghampton Press details opposition to the bill from some unusual corners.

Grover Nordquist, head of Americans for Tax Reform, said:

This is a feel-good piece of legislation that really doesn't so anything.

GP: That's certainly true (see: NY Video Game Bill Barks, Doesn't Bite)

Robert Perry of the New York chapter of the ACLU, added:

This bill would have the state regulating constitutionally protected speech. The courts will not permit that.

GP: Since the bill doesn't restrict content or sales based on content, we're assuming that the ACLU's Perry is referring to the requirement that games be labeled with a rating, which they already are on a voluntary basis.

Derek Hunter of the Media Freedom Project said:

The bill is unnecessary. The video-game industry is praised as the best at policing itself. They have a great ratings system.

Adam Thierer, writing for the Tech Liberation Front, calls the bill "unnecessary, unworkable, and unconstitutional" in an open letter to Gov. Paterson.

Meanwhile, Jason Della Rocca, executive director of the International Game Developers Association, has apparently issued an alert to IGDA members based in New York, calling upon them to contact the Guv in opposition to the bill.

The key piece of the puzzle will be whether the ESA decides to challenge the law's constitutionality. The game publishers' trade group, busy with E3 this week, has not said what it plans to do in that regard. Their most likely response will be to wait and see whether the Governor signs the bill into law. In the meantime they have urged VGVN members to write the Governor in opposition.

Comments made by the Entertainment Merchants Association, however, give the impression that video game retailers believe they can live with the law's provisions:

The bill is unnecessary and seeks to solve a problem that does not exist. But we do not anticipate that video game software retailers will have a problem complying with its requirements. (It is important to note that NY law already requires DVD packages to display the rating of the movie.)

The Entertainment Software Association (ESA), which represents the interests of video game publishers in the United States, has issued a press release announcing that the state of Minnesota will reimburse the industry to the tune of $65,000.

The figure represents legal fees incurred by the video game industry in its court challenge to Minnesota's unusual 2006 "fine-the-buyer" law.

As passed by the Minnesota legislature and signed into law by Governor (and potential Republican VP candidate) Tim Pawlenty (left) in 2006, the law would have turned traditional video game legislation on its head by fining underage buyers of M-rated games $25. Virtually all other video game content bills have sought penalties against retailers.

There were some other noteworthy aspects to the Minnesota situation:

U.S. District Court Judge James Rosenbaum, who ruled the law unconstitutional, borrowed his law clerk's Xbox to check out some violent games while considering his ruling.

Former Minnesota Attorney General Mike Hatch (D), who defended against the industry's constitutional challenge in its early days, described violent video games in a court filing as "worthless, disgusting speech" and "speech of very low societal value."

Minnesota appealed Judge Rosenbaum's decision's to the 8th Circuit Court, but lost. A request for a review by the entire 8th Circuit was also turned down.

The state's only remaining recourse was the U.S. Supreme Court. Judging from the settlement with the game biz, Minnesota A.G. Lori Swanson has apparently decided not to pursue a Supreme Court decision, but we've got a call into Swanson's office to confirm that.

The ESA originally sought $73,332 in fees in a motion filed in August, 2006. The $65,000 figure indicates that a little bit of negotiating went on.

ESA CEO Michael Gallagher weighed in on the $65,000 payment:

Minnesota’s citizens should be outraged at paying the bill for this flawed plan. Minnesota’s public officials ignored legal precedent and instead pursued a political agenda that ultimately cost taxpayers money. Courts across the United States have ruled consistently that video games are entitled to the same First Amendment protections as other forms of art, such as music and literature...

 

Politicians need to realize that the key to protecting our children from inappropriate media content is not haphazard legislation, but rather parental education. Video games have a first class ratings system supported by retailers, opinion leaders and parents.  It would be a far better use of public funds to help support this system, rather than continue to pursue unconstitutional legislation that works against it.    

GP: In a way, it would have been fascinating to see the Supreme Court make a ruling on this issue.

The Entertainment Merchants Association, the trade group which represents the interests of a large bloc of video game retailers, has issued a statement on Tuesday's passage of video game legislation by the New York State Senate:

The bill is unnecessary and seeks to solve a problem that does not exist. But we do not anticipate that video game software retailers will have a problem complying with its requirements. (It is important to note that NY law already requires DVD packages to display the rating of the movie.)

With passage in both the New York State Senate and Assembly, the measure now proceeds to Gov. David Paterson, who is likely to sign it into law.

The Coalition of Entertainment Retail Trade Associations has issued a press release declaring June to be “Entertainment Ratings and Labeling Awareness Month.”

CERTA, which includes the Entertainment Merchants Association, a trade group representing video game retailers, hopes to remind parents to check ratings on movies and video games as well as parental advisories on music.

The steep decline in sales of M-rated games to underage buyers reported this morning by the Federal Trade Commission is a clear victory for the video game industry on both the political and public relations fronts.

Taking a victory lap is the organization responsible for operating the video game industry's rating system, the ESRB. Via press release, ESRB president Patricia Vance commented on today's FTC report:
 

Video game retailers have clearly stepped up their efforts to enforce their store policies, and they deserve recognition for these outstanding results.  We commend and applaud retailers for their strong support of the ESRB ratings, and will continue working with them to help ensure that these levels of compliance are sustained if not further increased.

The ESA, representing US video game publishers, declined to comment, referring us instead to the ESRB.

Bo Andersen, president of the Entertainment Merchants Association, a trade group representing a number of video game retailers, also weighed in. For retailers, the report is a mixed bag. They scored superb numbers on game rating enforcement, but were criticized by the FTC for sales of R-rated and unrated DVDs to underage buyers. Andersen said:
 

Retailers don’t want children to be able to purchase or rent video games and DVDs that their parents do not want them to have. As a result, they have made real and significant investments in enforcing the voluntary video game and motion picture ratings in their stores. The FTC’s latest ‘undercover shopper’ survey demonstrates that these investments are producing strong results... While we are pleased with the progress that has been made in ratings enforcement, retailers still are not where they want to be as an industry.

On the consumer side, Hal Halpin, president of the Entertainment Consumers Association, remarked:
 

This is an extraordinary accomplishment from the nation's leading interactive entertainment retailers, as it clearly shows their increased commitment of keeping mature-rated games out of children's hands. Perhaps most impressive is the incredible reversal in their failure rate over such a short period of time and with a comparatively new rating system.

This is truly a vindication for video game merchants who have been falsely damned by anti-game advocates and special interest groups, who now don’t have a leg to stand on.

GamePolitics also offered several high-profile game industry critics and watchdog groups an opportunity to comment. So far we've not heard back from the Parents Television Council, the National Institute on Media & the Family or California State Sen. Leland Yee. There was one critic we did hear from, though...

Despite the eye-popping retail enforcement numbers, anti-game activist Jack Thompson refused to give credit to the video game industry. Instead, he credited... Jack Thompson:
 

I'm more than happy to take credit for the improvement. The threat of legislation has improved performance, not some altruism on the part of the Strauss Zelnick's [or] the industry. To America's parents: Jack Thompson is delighted to have helped.

Of course, Thompson would have been all over the FTC numbers had they been unfavorable to the video game industry. Classy, Jack...

UPDATE: Dr. David Walsh of the National Institute on Media & the Family has now weighed in. NIMF claims a bit of the credit as well:
 

The results of the [FTC's] latest undercover survey are good news for retailers and the [ESRB], but most of all for parents... With its consistent pressure on the video game industry, [NIMF] played a significant role in improving ratings enforcement and education. Similar to our... Video Game Report Cards, the FTC survey shows that specialty retailers, such as GameStop, continue to lead in enforcement and the rental companies need to step up their efforts...

Full Disclosure Dept: The ECA is the parent company of GamePolitics…

The results of the Federal Trade Commission's latest research into the marketing of violent entertainment to children is a major win for the video game industry.

Just-released numbers show that the FTC's underage secret shoppers were only able to purchase M-rated games 20% of the time, a massive improvement over last year's 42% success rate.

Amid heightened parental concerns following last week's high-profile release of Grand Theft AUto IV, the news couldn't come at a better time for the video game biz.

DVD sellers, on the other hand were spanked by the FTC for selling R-rated and unrated movies to underage buyers about half of the time. Theaters allowed the FTC's secret shoppers into R-rated movies 35% of the time, making the game industry's results all the more impressive.

New in this year's report are individual ratings for retailers. The FTC results indicate that GameStop is doing the best job of retail ratings enforcement, turning away 94% of underage buyers. Wal-Mart and Best Buy scored high marks as well, with 82% and 80% turn-away rates, respectively.

Listed below are the FTC's video game secret shopper results, listed by retailer (number indicated is successful purchases of M-rated games by underage buyers):
 

Game Stop/EB Games - 6%
Wal-Mart - 18%
Best Buy - 20%
Toys R Us - 27%
Target - 29%
Kmart - 31%
Circuit City - 38%
Hollywood Video - 40%

A graph posted on the FTC website (and seen at left) traces a steep decline in underage sales since 2000, when secret shoppers were successful 85% of the time.

 We'll offer reactions from the video game industry and other stakeholders as we receive them.

As reported by GamePolitics last week, the U.S. 8th Circuit Court  affirmed a July, 2006 U.S. District Court ruling that Minnesota's "fine the buyer" video game violence law is unconstitutional.

Now we've gotten our hands on a copy of the three-judge panel's decision. Download it here (8-page PDF). Here's a sample:
 

We accept as a given that the State has a compelling interest in the psychological well-being of its minor citizens. Likewise, we believe that the State’s evidence provides substantial support for its contention that violent video games have a deleterious effect upon the psychological well-being of minors. Nevertheless, in light of the heightened standard of proof that [the precedent-setting] Interactive Digital [decision] says must be applied, we conclude that the evidence falls short of establishing the statistical certainty of causation demanded thereby.

In so holding, we are not as dismissive of that evidence as have been some of the courts that have found similar evidence to be inadequate to establish the causal link between exposure to violent video games and subsequent behavior.

GP: This decision might not have gone so well for the game industry had the 8th Circuit not been faced with a precedent-setting decision in the IDSA vs. St. Louis case.

As reported on GamePolitics earlier this week, a federal appeals court has affirmed a lower court ruling that Minnesota's 2006 "fine the buyer" video game law is unconstitutional.

Local news station KARE-11 has a video report on the law's defeat, including interviews with Dr. David Walsh of the National Institute on Media & the Family and, oddly enough, a guy who sells retro video games.

Veteran GamePolitics readers may recall Minnesota's unusual "penalize the buyer" approach to restricting sales of mature-themed games.

The 2006 Minnesota law sought to fine kids - not retailers - $25 for attempting to purchase a game for which the ESRB rating deemed them too young. The law was promptly overturned by U.S. District Court Judge James Rosenbaum, who, in a novel judicial move, tried out several violent games on his law clerk's Xbox.

Following Judge Rosenbaum's ruling that the law was unconstitutional, Minnesota opted to appeal to the 8th U.S. Circuit. That case was argued before the Court in February of last year. Now, as reported by the Minneapolis Star-Tribune, the 8th Circuit has upheld Judge Rosenbaum's finding that the Minnesota law is unconstitutional. From the newspaper report:
 

While the judges upheld Rosenbaum's ruling that violent games are entitled to First Amendment protections, they did so reluctantly.

[Judge] Wollman wrote that "whatever our intuitive (dare we say commonsense) feelings regarding the effect that extreme violence portrayed in the above-described video games may well have upon the psychological well-being of minors," precedent requires incontrovertible proof of a causal relationship between exposure to the games and some psychological harm.

The state failed to meet that burden, Wollman wrote... "Indeed, a good deal of the Bible portrays scenes of violence, and one would be hard-pressed to hold up as a proper role model the regicidal Macbeth," Wollman wrote.

GP: Judge Wollman's critical comments regarding violent games are not especially surprising for those who may have listened to last February's arguments. At that time the panel of three 8th Circuit Court judges asked some very pointed questions of video game industry attorneys.

The Minnesota case was also notable in that it produced some of the most inflammatory anti-game rhetoric this side of Jack Thompson. Bill sponsor Rep. Sandy Pappas (D, seen at left) rather famously said:
 

Legislators don’t worry too much about what’s constitutional.

In addition, then-Attorney General Mike Hatch (D) offered a legal opinion that, while violent games are indeed a form of speech, they are :
 

Worthless, disgusting speech... speech of very low societal value.

UPDATE: Bo Andersen, president of Entertainment Merchants Association (EMA), which represents a significant number video game retailers, offered reaction to the legal victory:
 

We are pleased that, yet again, a court has ruled that, like other forms of entertainment, video games are protected by the First Amendment and that laws that attempt to restrict their sale are unconstitutional. We believe far too much effort has been expended trying to pass and defend these laws, effort that could have been put to better use supporting the successful voluntary initiatives of the industry and retailers to ensure that children do not get games that are not appropriate for them.

The political battle over video games heated up today in California as both sides made strategic moves.

State Sen. Leland Yee, via press release, applauded Gov. Arnold Schwarzenegger's promised appeal of last month's federal court ruling that California's 2005 video game law was unconstitutional. Said Yee:
 

I am very pleased to see the Governor's commitment to this issue. This is a common-sense law that empowers parents by giving them the ultimate authority over whether or not their children can play in a world of violence and murder.

For his part, Gov. Schwarzenegger added:
 

We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions. These games are for adults, and the law I signed ensures that parents have the chance to determine which video games are appropriate for their children.

Yee wasn't finished: