For nearly a year GamePolitics has been tracking ATCA, the Anti-Counterfeiting Trade Agreement (ACTA).

As we have reported, ACTA deals in large part with copyright issues and is being negotiated in secret by the U.S., Japan, Canada, the EU and other nations. Details of ACTA are largely a mystery to consumers despite the fact that dozens of corporate lobbyists have been clued in to parts of the treaty, including Stevan Mitchell, VP of IP Policy for game publishers trade group the Entertainment Software Association.

Sadly, consumer interests suffered a major blow last week as the Electronic Frontier Foundation and Public Knowledge dropped a federal lawsuit seeking to cast a little sunshine on the ACTA negotiations. The EFF explained that a recent decision by the Obama Administration to claim a national security exemption for the ACTA talks made the lawsuit unwinnable; federal judges have  little leeway to overrule such claims. The move by the Obama White House extends a similar policy put in place by the Bush Administration.

Public Knowledge Deputy Legal Director Sherwin Siy commented on the decision:

Even though we have reluctantly dropped this lawsuit, we will continue to press the U.S. Trade Representative and the Obama Administration on the ACTA issues. The issues are too far-reaching and too important to allow this important agreement to be negotiated behind closed doors.

The worry, of course, is that the United States will emerge from ACTA with a done deal that favors Big IP in the fashion of the consumer-unfriendly DMCA. Hal Halpin, president of the Entertainment Consumers Association, expressed concerns about ACTA earlier this year:

Because ECA supports the balance that must exist between the rights of copyright owners and the right of copyrighted material consumers, we do not think it wise to include any portions of the Digital Millennium Copyright Act (DMCA) in the Anti-Counterfeiting Trade Agreement (ACTA) currently being discussed...    

We are concerned that any DMCA language in ACTA may cause enormous, unforeseen negative implications in US law...

GP: As GamePolitics mentioned above, video game publishers lobbying group the ESA is privy to at least a portion of the secret ACTA negotiations while its industry's customers - video game consumers - are barred from knowing anything at all.

That makes us wonder - will the Video Game Voters Network, which is owned and operated by the ESA, commence a letter-writing campaign on behalf of its gamer-members demanding that the White House pull the curtain back on ACTA?

Somehow we doubt it.

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

Portions Via: /.

The recent discussion concerning the ESA's desire to have its rating organization, the ESRB, evaluate game content for the iTunes App Store brings a number of questions to mind:

1.) Why?

Having watched how corporations, lobbyists and their related entities do business for some time now, I'm too jaded to believe that ESA/ESRB wants to jump into rating App Store games for the good of society or because it's the right thing to do. This would, after all, be a significant commitment of ESRB resources. Generally such things happen because there is revenue to be made or there's power to be grabbed.

Despite its present chaotic nature, the App Store is a rising star in the game space. Getting in on the ground floor would be a coup for the ESRB. Apple has a lot of money, too, and the ESRB is paid a fee by the developer/publisher for each game it rates. Despite my cynicism, ESRB spokesman Eliot Mizrachi told me that it's not about the Benjamins:

ESRB is a non-profit organization funded by the revenue generated from the services we provide the industry.  Given our highly discounted rate for lower-budget games, rating mobile games is not a financially attractive proposition; however we believe making ESRB ratings available for those games would serve consumers well.  Parents are already familiar with ESRB ratings and find them to be extremely helpful in making informed choices for their families.  
 
To be clear, our desire is to see Apple integrate ESRB ratings as an option in its parental controls and display a game’s rating (if it has one, the ratings are voluntary after all) in the App Store or on iTunes prior to purchase, not to require that every game available via an iPhone carry an ESRB rating (just as not every piece of video content available will carry an MPAA or TV rating). 

 

Apple’s integration of ESRB ratings into its parental controls for iPhone games would afford parents the ability to block those video games that carry an ESRB rating utilizing the same tool they are being offered to block video content that has been rated by the MPAA or carries an official TV rating.  It’s about giving parents the same ability to do on the iPhone what they are being offered with other entertainment content and can already do on game consoles and other handheld game devices.     

2.) What would it cost?

I asked the ESRB what it costs a developer/publisher to have a typical console game rated?  Would the cost to rate an iPhone game be less? Mizrachi said:

Our standard fees for getting a game rated cover the costs of providing that service.  However, to make accommodations for lower-budget product like casual and mobile games, several years ago we introduced a highly discounted rate - 80% less - for games that cost under $250,000 to develop.  We believe most iPhone games would likely be eligible for the discounted rate.

3.) Isn't this a lot of extra work for ESRB?

Mizrachi was asked whether the ESRB has the capacity to handle an influx of iPhone games for rating. His response:

ESRB has seen increases in rating submissions each year since its founding and has always been able to keep pace.  We have rated more than 70 mobile games to date and will undoubtedly rate more in the future as the market grows.  Consumers of those mobile games that have been assigned ESRB ratings should have access to rating information, and if parental controls are available, the ESRB rating should ideally be operable within that framework. 

4.) If the ESRB plans to do App Store games, what about Xbox 360 Community Games (soon to be known as Indie Games)? 

I also asked Mizrachi about the indie games on XBL. Wouldn’t they seem to be a more natural focus for the ESRB before targeting iTunes? Mizrachi said:

Once XNA games graduate to XBLA they are rated by ESRB... ESRB isn't "targeting" iPhone games.

5.) Who would pay for ESRB to rate App Store games?

Not the creators of $0.99 games, for the most part. They are apparently not making significant revenue. Apple has a deep pocket, of course, although they are not the creator of the games for sale on the App Store. Perhaps the larger industry players such as EA, Namco, etc. would foot the bill for their games. They are already accustomed to dealing with the ESRB.

6.) If only some games are rated, why bother?

But then again, if only the commercial game apps from major publishers are rated, how does that stop your kid from downloading Baby Shaker or Hot Dog Down a Hallway? The foundation for the retail employment of ESRB rating is its ubiquity. Major retailers won't carry non-rated games. Thus, parents have a reasonable expectation that their 12-year-old will be turned down if he tries to buy GTA IV. If not all App Store games are rated, such an expectation is not applicable. So, what's the point?

Hopefully we will learn more about the ESRB's plan as we go forward.

The ESA & ESRB (which is owned by ESA) have recently begun a push to bring the videogame industry's content rating system to that wild frontier of gaming known as the iTunes App Store.

The ESA plan has now received support from a rather unexpected source.

Dr. David Walsh of the National Institute on Media & the Family has weighed in with an endorsement of ESA boss Mike Gallagher's offer to have the ESRB rate App Store games. In a statement released late on Friday, Walsh said:

Michael Gallagher deserves considerable credit for his foresight in identifying the latest challenge for parents, the gaming industry and the ESRB. As gaming technology continues to advance and games become more accessible via online downloads and phone applications, parents will need new tools to keep inappropriate games out of their kids’ hands.

 

Gallagher took a great first step offering to work with Apple to ensure inappropriate content does not make its way into kids’ lives. I hope Apple accepts his offer and reaches out to other organizations like the ESRB and non-industry groups who are concerned about this issue and can offer valuable insight.

GP: As GamePolitics reported last September,  the National Institute on Media & the Family was the recipient of a $50,000 grant from the ESA Foundation.

By a 35-0 vote yesteday, the Louisiana Senate passed SB 152, a bill which would make a pattern of distributing sexually explicit material to children a deceptive trade practice under state law.

GamePolitics readers may recall that in its original form, SB 152 was drafted by disbarred Miami attorney Jack Thompson as a back-door means of enforcing ESRB content ratings. The original SB 152 mirrored Thompson's Utah bill, which was vetoed by Utah Gov. Jon Huntsman (R) in March. However, bill sponsor Sen. A.G. Crowe (R, at left) subsequently gutted Thompson's focus on age ratings from the bill, amending it instead to its new focus on the distribution of sexually explicit material to minors. It should be noted that distributing such material to minors is already an offense under Louisiana's criminal statutes.

Unlike the Utah bill, SB 152 doesn't make reference to video games, advertising, age ratings or any specific product, for that matter. However, Sen. Crowe did mention video games as an example during yesterday's session:

This body has over the years passed numerous laws to protect our children... And with the growth of...  the market of materials that would be considered by most of us here objectionable as it relates to obscenity such as that is found... in video games either rented or purchased, could fall again into the hands of some of our children. So it is a step in the direction of moving, passing legislation that would allow for, again, protecting our children from this type of thing...

Oddly enough, SB 152 specifically excludes the Internet from its provisions. These days the online world would seem the most likely source for a child to stumble upon sexually explicit material. 

The nature of sexually-explicit conduct defined in the bill would seem to exclude any ESRB-rated video game published to date. It seems clear that a game meeting the standard defined in the bill would have already been rated Adults Only (AO) by the ESRB. Curiously, the bill does not relate its provision for sexually-explicit conduct to the legal definition of obscenity. Should the bill eventually be signed into law, this could prove to be a fatal flaw from a constitutional sense.

Now that it has been passed by the Senate, the next stop for SB 152 is the Louisiana House of Representatives.

GamePolitics readers can watch yesterday's debate on SB 152 by clicking here. Scroll down to "Chamber" for June 10th. The SB 152 segment begins at 4:01:39.

UPDATE: A knowledgeable video game industry source criticized SB 152 in comments to GamePolitics:

The bill as passed by the Senate is clearly unconstitutional. It would penalize the sale of sexually oriented material to minors, but does not require that the material be legally obscene for minors, referred to in Louisiana as 'harmful to minors,' or 'obscene,' as U.S. Supreme Court precedents mandate. This was the same flaw that doomed the Illinois 'sexually explicit video games' law.
 
While it might seem that mainstream retailers have little to fear from the amended bill, as they don't carry pornography, the fact that a single depiction in an otherwise unobjectionable video game, DVD, or other material could open a retailer to liability is of grave concern.

Influential Sen. Orrin Hatch (R-UT) referred to a Swedish court's recent conviction of the operators of file-sharing site The Pirate Bay as "important" and a "victory." He also reiterated Congressional claims that Canada is a leading copyright violator and pointed with pride to the controversial Digital Millenium Copyright Act, which he helped pass more than a decade ago.

Hatch, who has served in the Senate for 32 years, made the remarks while addressing the World Copyright Summit on Tuesday in Washington, D.C. The Utah Senator co-chairs the Congressional International Anti-Piracy Caucus (IAPC):

For years, countries like China and Russia have been viewed as providing the least hospitable environments for the protection of intellectual property. But this year, it was particularly disappointing to see that Canada, one of America’s closest trading partners, was listed on the Watch List. This is another sobering reminder of how pervasive and how close to our borders copyright piracy has become in the global IP community...

 

Appallingly, many believe that if they find it on the Internet then it must be free. I have heard some estimates cite no less than 80 percent of all Internet traffic comprises copyright-infringing files on peer-to-peer networks.

That is why the Pirate Bay case is so important. While the decision does not solve the problem of piracy and unauthorized file sharing, it certainly is a legal victory and one that sends a strong message that such behavior will not be tolerated. We can and must do more...

 

When we passed the Digital Millennium Copyright Act in 1998, one of my goals was to address the problems caused when copyrighted works are disseminated through the Internet and other electronic transmissions without the authority of the copyright owner.

By establishing clear rules of the road, the Digital Millennium Copyright Act served as the catalyst that has allowed electronic commerce to flourish. I believe the DMCA, while not perfect, has nonetheless played a key role in moving our nation’s copyright law into the digital age...

The Copyright Alliance, a lobbying group for IP rights holders (the ESA is a member), applauded Hatch's remarks:

Orrin Hatch (R-UT) once again was charming, informed, thoughtful and inspiring in his speech. Once again he was a passionate supporter of creators and copyright owners, and told the 500 or so international delegates here that he has been, and always would be, their champion...

Hatch, who last won re-election to the Senate in 2006, has been a regular recipient of campaign donations from the IP industry. A quick check of donations by political action committees shows that Hatch received $7,000 from the RIAA (music industry) between 2004-2006 and $12,640 from the MPAA (movie business) between 1998-2006.

IP Watchdog has the full transcript of Hatch's remarks.

Each year at E3 the Entertainment Software Association distributes Essential Facts About the Computer and Video Game Industry, a small handbook of facts and figures detailing who its customers are and what they are buying.

It's always an interesting read although we're exactly not sure how they define some terms. What constitutes a "game player," for instance? Is it someone who simply plays Windows Solitaire? At any rate, here are some of the key findings from the ESA report:

Who Plays:

• 68% of Americans play computer or video games
• The average game player age is 35 (again, how is this defined?)
• 25% of game players are under 18
• 25% of game players are over 50
• 60% are male, 40% female
• on average, adult gamers have been playing for 12 years
• 42% of U.S. homes have a game console

Who Buys: 

• Average age of most frequent purchaser is 39
• 52% of purchasers are male, 48% female
• 92% of time a parent is present during purchase
• 83% of time kids receive parental permission before purchasing
• 43% of Americans have purchased or plan to buy one or more games in 2009

Parenting:

• 94% of parents report monitoring their kids' games "always or sometimes"
• 77% of parents believe parental control features in consoles are useful (although the more relevant number might be how many parents are aware of such controls and use them)
• 79% of parents impose time limits on gaming (that's a higher percentage than TV viewing, movie viewing and Internet usage)
• 78% of parents game with kids because it's a good opportunity to socialize with their child
• 63% of parents game in order to monitor content

Content:

• 57% of games sold in 2008 were rated E or E10+
• 16% were rated M (17 and older)
• Among Top 20 best-selling console games of 2008, 6 were rated M (GTA IV 360, GTA IV PS3, CoD WaW, GoW2, CoD4 MW, Fable II)
• Among Top 20 best-selling PC games of 2008, 5 were rated M (Age of Conan, CoD4 MW, Fallout 3, CoD WaW, Crysis)
• 37% of Americans play on wireless devices such as mobile phones and PDAs

We posted a story on this last Thursday, but here's exclusive video footage from GP's mobile phone which shows Los Angeles Mayor Antonio Villaraigosa welcoming E3 2009 to town.

To the left of Villaraigosa is ESA boss Mike Gallagher.

Do games on the iTunes App Store need to carry ESRB ratings?

In recent times there have been a number of questionable developments in regard to iPhone apps. Some were banned that perhaps shouldn't have been. Others were cleared for sale despite containing questionable content.

Kotaku reports that ESA boss Mike Gallagher would be open to working with Apple on rating App Store games:

We’ve been down this road before, the entertainment software industry, we know how this goes and it’s wise for (Apple) to make steps in that direction so that this is addressed up front and there is an environment that is hospitable to children and families. It would be wise to do that, we would welcome the opportunity to work with them, we are reaching out to encourage that.

 

That doesn’t mean that every entrepreneur, every software engine that is able to write code and put up an app on the App Store is going to go through this process it simply says that if a game is rated it needs to pass through and be filtered appropriately by the controls that are on the iPhone. That would be a big step in the right direction and it is virtually friction free.

GP: While App Store offerings clearly need some kind of coherent rating system, it's unclear whether the ESRB is the right vehicle. As Gallagher notes, there is a high volume of games on the App Store. If all are not to be rated, of what value is a rating system? Who decides which games need to be rated? What is the ESRB's operational capacity to absorb App Store games into its workload?

Not mentioned by Gallagher, but clearly a factor, are the fees paid by developers to the ESRB have games rated. As GamePolitics reported just yesterday, most App Store games are not making money. Will small-time developers of $0.99 games who are hoping to catch lightning in a bottle on the App Store participate in a rating system which requires them to fork over to the ESRB up front? It seems unlikely.

A year ago I pronounced E3 dead.

I was wrong.

Of course, when I wrote those words, the impressive expo staged last week was not what I had in mind. Instead, as 2008's pitiful show wound down, I checked E3 for vital signs and found none. I wasn't alone, of course. E3 2008 was awash in criticism from media and industry types. Even Mr. Sims himself, Will Wright, termed the show "the walking dead."

But this year's E3 has to be - by any measure - rated a success. While it wasn't the exercise in rampant game biz excess that we experienced in prior years, it had ample excitement and plenty of buzz. And, truth be told, sharing the L.A. Convention Center with 41,000 other attendees was a far more pleasant experience than the godawful crush caused by the crowd of 80,000 let into the last big E3 in 2006.

In any case, kudos must be paid to the ESA and its member companies for following up on their commitment to turning E3's sinking ship around. The expo, of course, is the video game industry's annual chance to strut its stuff and it deserves to be a showcase. Hell, gamers want it to be a showcase. It's no secret that gamers drool over E3, yours truly included. Personally, 2009 was my 12th trip to the big dance. I've attended E3 in Atlanta, Santa Monica, and - a bunch of times - at the LACC. Afterward, I return home feeling re-energized about games and maybe even a bit let down by the prospect of life without 50-foot high displays, pulsing lights, amped-up music and booth babes.

To let E3 and its storied history just fade away might seem unthinkable, but that's exactly the direction in which the industry was heading when it allowed bean counters to dictate policy. Thankfully, those who understand just how important E3 is to the video game community stepped in and saved the day.

During Tuesday's E3 state-of-the-industry speech ESA boss Mike Gallagher touched on a number of issues. In this post we'll take a look at his comments on politics and the video game industry:

On Barack Obama's Xbox Live campaign ads:

Then-presidential candidate Barack Obama purchased advertising space within video games during his presidential campaign... In doing so, Obama became the first presidential candidate to use video games to engage voters and court their support. Others will inevitably follow...

On state-funded financial incentives for video game developers:

You may recall that Texas Governor Rick Perry delivered our keynote address last year... A true advocate for the industry, he backed up his words over the past year. He proclaimed February 3 “Entertainment Software Day” in Texas. Then, in April, he supported [legislation] tripling the economic incentive programs in Texas for digital interactive media production...

 

A growing number of elected officials increasingly view incentives for video game companies as an essential component in any plan designed to revive a local economy... This year, 18 states have actively considered legislation to create or significantly expand existing incentive programs for digital interactive media development and production...

On restrictive video game content legislation:

Of course, there remain some in government who still seek to lay society’s ills at our doorstep. We are vigilant in defending the interests of the video game ecosystem...

 

We have seen demonstrable proof that [the Video Game Voters Network's] powerful activism can stop a bad legislative proposal from becoming an even worse law. In Utah, for example, gamers stepped up, encouraging Governor Jon Huntsman to reject a piece of flawed legislation. The governor heeded their call and, in March, vetoed the bill. This decision represented a great win for both gamers and the industry at large. For the first time, a governor vetoed legislation that would have profoundly affected video games, consumers and the industry...

GP: With all due respect to Gallagher, from here it seemed that the industry's substantial lobbying efforts in Utah had far more to do with Gov. Huntsman's veto than e-mails generated by the VGVN.

That said, Gallagher's speech was a notable improvement over the 2008 version for a couple of reasons. First, it was moved to the L.A. Convention Center's comfortable and cozy theater. Last year's speech was delivered in a cavernous - and mostly empty - meeting room. More importantly, after wrapping up this year's talk Gallagher provided a question-and-answer period, something he didn't offer his audience in 2008.

During the Q&A I took the opportunity to ask Gallagher about the U.S. Supreme Court's pending consideration of California's violent video game law. If the Court rejects California's bid, I asked, did the ESA boss think the other 49 states would take notice and stop attempting to legislate games?

No, [they] won't... 12 times we've been to federal court and had those statutes overturned, [but] they continue to do it... We'll face challenges in different states at different times. What I can you tell you is, our advocacy and the growth of our industry is beginning to turn that issue around. An example I would point to is the number of legislators who introduce these bills has stopped. They didn't do it this year. That happened in North Carolina, it happened in Massachusets, it happened in Michigan and other states. And in some of those cases, we've taken our harshest critics and turned them around to where they are sponsoring legislation to give our industry incentives to locate in their state. So I see opportunity for this industry to continue to make its case...

 

We are going to turn that issue. And we are having an impact today. But we continue to have to be very vigilant...

On Tuesday Los Angeles Mayor Antonio Villaraigosa officially welcomed E3 back to the City of Angels with a presentation to ESA boss Mike Gallagher and a ceremonial ribbon cutting.

And, why not? As the Los Angeles Times reports, E3 2009 generated more than $15 million in commerce for the city.

There's no truth to the rumor, by the way, that those giant scissors are a new Wii peripheral.
 

Los Angeles Mayor Antonio Villaraigosa (D, at left) will extend an official welcome to E3 2009 tomorrow afternoon, according to a press release issued by the Entertainment Software Association, which operates the expo.

The 3:30 p.m. ceremony will mark the official opening day of E3 and will feature a ribbon cutting by Mayor Villarigosa, ESA boss Mike Gallagher and Mark Liberman, head of LA INC.

The event will take place outside the West Hall lobby of the Los Angeles Convention Center.

There's one in every crowd.

While the video game press is generally enraptured by the prospect of E3 returning to its former glory, Cnet's Dan Ackerman serves up a cautionary note, saying that this year's expo "may be too little, too late."

Ackerman explains:

The 2009 version of E3 is being unofficially billed as a return to form... Of course, many of these grand plans were hatched before the current economic recession hit, and some of these game companies may be experiencing buyer's remorse over investing so heavily in an E3 show modeled on the free-spending glory days.

We're eager to see how excessive the show's booths are (previous years resembled an arms race to see who could build the biggest, most ostentatious display), and whether the game publishers will feel like they got their money's worth from their sizable investment -- which is why the show was scaled back three years ago in the first place... If not, this could very well be E3's third strike, and the end of a 15-year run.

We've got DRM in our games, the RIAA continues to sue small-fry, individual file sharers, the consumer-unfriendly Digital Millenium Copyright Act is the law of the land, the IP industry is trying to push DMCA-like legislation in Canada, and the secret ACTA copyright negotiations are ongoing.

But the copyright lobby would like to be in your kid's school, too.

The Copyright Alliance, a lobbying group which includes game publishers trade association the Entertainment Software Association among its members, has just launched the Copyright Alliance Education Foundation, which it bills as a non-profit, charitable organization:

Its mission as of now is K-12 schools, and... we are already working with many schools across the country... The focus of our curricula is student empowerment; communicating how the U.S. Constitution gives each and every one of us rights and ownership over our creations.

Taking classroom time away from the 3R's is not a new idea for those in the IP protection business, however. As GamePolitics reported in 2007, the ESA's top enforcement exec, Ric Hirsch, told attendees at an anti-piracy conference:

In the 15- to 24-year-old (range), reaching that demographic with morality-based messages is an impossible proposition... which is why we have really focused our efforts on elementary school children. At those ages, children are open to receiving messages, guidelines, rules of the road, if you will, with respect to intellectual property.

On Wednesday game publishers' lobbying group ESA issued a press release praising members of the bipartisan Congressional International Anti-Piracy Caucus for singling out Spain, Canada, Mexico, Russia and China as anti-piracy priorities for 2009.

ESA CEO Michael Gallagher praised the IAPC in a press release:

We thank the Caucus for this year issuing a challenge to Canada and Mexico to pass additional legislative protections – such as prohibitions on ‘mod chips’ and other circumvention devices that are used to play pirated games – and to follow through with greater enforcement and border controls.

We also thank the Caucus for highlighting the severe problems that exist for our industry and other copyright industries in Spain. Online and peer-to-peer piracy are rampant and virtually unchecked in Spain and in other major European markets...

But Nick Farrell of the U.K.-based Inquirer, doesn't think much of the caucus, implying that the senators and representatives on the IAPC have been lobbied by the RIAA and other IP rights holders. Farrell writes:

The RIAA has got its tame politicians in the US congress to rail at other nations that don't hold such a jack-booted attitude toward copyright infringement as the Land of the Free...

[IAPC] singled out Baidu, China's largest Internet search engine, as being "responsible for the vast majority of illegal music downloading in China." That's interesting, because Baidu does the same thing as Google which, as a powerful US company, the music industry has not dared to denounce...

It seems almost as though the entertainment mafiaa would like the US to mount a cross-border raid into Canada over its perceived lack of draconian copyright enforcement and wants the US to treat its NATO ally Spain as a pariah for having the temerity to say that peer-to-peer file sharing over the Internet isn't a crime.

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.

For the first time ever, the United States Supreme Court will consider a case involving a restriction against the purchase of violent video games by minors.

GamePolitics has just received the news by way of a press release from the office of California State Senator Leland Yee (D). It was Yee who sponsored the contested video game law as an Assemblyman in 2005. The bill was signed into law by Gov. Arnold Schwarzenegger in October, 2005, triggering a court battle with between the state and the video game industry which will now extend to the U.S. Supreme Court.

The law, scheduled to take effect January 1st, 2006, never became effective due to an injunction issued by U.S. District Court Judge Ronald Whyte in December, 2005. Judge Whyte would eventually go on to permanently enjoin the law in August of 2007, ruling it unconstitutional. Gov. Schwarzenegger, however, ordered an appeal to the U.S. 9th Circuit Court.

In February of this year, a three-judge panel of the 9th Circuit upheld Judge Whyte's ruling, leaving the U.S. Supreme Court as California's last option, an option that Gov. Schwarzenegger has now chosen to exercise. Schwarzenegger's comments are contained in the press release:

I signed this important measure to ensure parents are involved in determining which video games are appropriate for their children. By prohibiting the sale of violent video games to children under the age of 18 and requiring these games to be clearly labeled, this law would allow parents to make better informed decisions for their kids. I will continue to vigorously defend this law and protect the well-being of California’s kids.

For his part, Yee, a child psychologist by trade, said:

I am hopeful that the Supreme Court – which has never heard a case dealing with violent video games – will accept our appeal...  

 

Passing this law was not easy and thus we should not expect the court proceedings to be any different. The multi-billion dollar video game industry relies on the revenue generated by the sales of these extremely violent games to children; thus they have the desire and resources to fight this cause at every turn.  Despite their high-priced lobbyists, they were unsuccessful in the Legislature and despite their high-priced lawyers, I am hopeful they will inevitably face the same fate in the courts.

California Attorney General Jerry Brown (D), whose office will handle the SCOTUS appeal, added:

California’s children are exposed everyday to video games that glamorize killing sprees, torture and sexual assault. In the face of this brutal violence, I am petitioning the Supreme Court to allow the state to enforce its reasonable ban on violent video game sales and rentals to minors.

The A.G.'s office has initiated the appeal by filing a petition for a writ of certiorari. As GamePolitics readers may recall from the recent Jack Thompson appeal, the Supreme Court process dictates that the justices as a group will consider California's petition in private conference at a later date. If four of the nine justices vote to grant California's petition, the case will advance to the filing of briefs. Otherwise, the appeal will end.

In a refreshing break from the standard video game industry propaganda, a pair of maverick PC developers offer some straight talk on DRM to Gamasutra's Paul Hyman.

Ron Carmel of 2D Boy (World of Goo) believes that the major publishers are beginning to back off on the use of DRM following consumer outrage over its use in games like Spore:

I definitely believe this is all the result of a change in the public perception of DRM, a sort of grass roots uprising. Gamers are much more vocal about it than they used to be, perhaps because they are so accustomed to downloading music without too many restrictions.

But Carmel also relates DRM to the battle over used game sales currently being waged between video game publishers and retailers:

Publishers aren't stupid. They know that DRM doesn't work against piracy. What they're trying to do is stop people from going to GameStop to buy $50 games for $35, none of which goes into the publishers' pockets. If DRM permits only a few installs, that minimizes the number of times a game can be resold.

Although, to be fair, there doesn't appear to be much of a secondary market for PC games among retailers. Consumer-to-consumer channels like Ebay may be a different story. Brad Wardell of Stardock added:

Spore was the final straw that broke the camel's back. Someone who buys software does not want to be made to feel like a chump for buying it.

Not surprisingly, the Entertainment Software Association, which lobbies on behalf of publishers, argued in support of DRM. VP Ric Hirsch told Gamasutra:

DRM is a reasonable response to high piracy rates... There is little doubt that piracy would be far more widespread without game publishers' use of DRM.

Bird flu, mad cow disease, and now swine flu.  It’s probably just a ruse engineered by farm animals to keep themselves off my dinner table.

Be that as it may, H1N1 Influenza A continues to make headlines and gamers want to know if it’s going to negatively affect that annual orgy of video game news that is E3.  Last week, the ESA announced that the gaming expo would proceed as planned and the LA Convention Center Administration Department has now echoed that sentiment in comments to Eurogamer:

The swine flu has not yet affected this part of Los Angeles County (Downtown LA) and we do not expect the outbreak to spread any further than it has already.  The swine flu has in fact declined over the last few days in Los Angeles County.

We hope that by the time E3 is in the building, swine flu will be a thing of the past and no longer a threat to the health of Los Angeles and the rest of the country and world.

Still, just because the ESA and LACC aren’t anticipating an issue with the swine flu doesn’t mean attendees are excused from acting like a pig:

As a precaution, guests are urged to wash their hands regularly and cover their mouths when coughing.

-Reporting from San Diego, GamePolitics correspondent Andrew Eisen...

DOCUMENT DUMP: An earlier swine flu-related statement by the LACC, issued on April 27th.