A Legal Analysis of Brown v. EMA

July 8, 2011 -

            No doubt everyone has heard the good news out of the Supreme Court last week. Video games are saved from government censorship based on violent content, California’s law prohibiting the sale of violent video games to minors is invalid, good times had by all. This article is for those curious as to the how and why of this outcome, and will take readers through the Court’s principal opinion written by Justice Scalia (which is the governing law and will be used as precedent everywhere in the US from now on) as well as touch on a few points from other opinions penned by other Justices.

 

U.S. Supreme Court Upholds Ninth Circuit Decision in Brown v. Entertainment Merchants Association

June 27, 2011 -

The United States Supreme Court has ruled in favor of the video game industry and retailers in Brown v. Entertainment Merchants Association (formerly known as Schwarzenegger v. Entertainment Merchants Association). The full opinion can be found here. According to Justice Scalia, who wrote the opinion: "the act forbidding sale or rental of violent games to minors does not comport with the 1st Amendment." Alito concurred with the judgment, joined by the Chief Justice. Justices Thomas and Breyer dissent, in an opinion by Thomas - according to SCOTUSBlog.

The court had to decide if a state law restricting the sale of violent video games to minors violated the First Amendment right to free speech. The Ninth Circuit Court ruled in favor of the EMA, saying that the law violated the First Amendment.

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Lead Counsel In SCOTUS Violent Games Case Lays Out Arguments

October 7, 2010 -

The lead counsel for the video game industry in the upcoming Supreme Court fight against California’s proposed violent video game restrictions outlined the problems with the state’s legal arguments in a recent public appearance.

Speaking at an intellectual property forum at Chicago-Kent University last week, Jenner and Block LLP Partner Paul M. Smith said that no matter how a state defines "extreme" violence in such laws, they will run into constitutional problems with vagueness.

"I've litigated nine cases in a row where states have tried to define the category nine different ways – and they always lose when they make this case because violence is considered a perfectly appropriate and normal part of what we give our kids to see starting from a very young age," he said.

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Supreme Court Decision Questions the Validity of Some Computer and Software Patents

June 19, 2014 - GamePolitics Staff

While a new Supreme Court decision may cut down the number of valid software patents, experts generally agree that it will not eliminate them altogether. The Supreme Court ruled on Thursday that a patent related to a centuries-old financial concept was invalid because it was an abstract idea, even when the concept is implemented through a computer system.

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Author Lists Brown v. EMA as One of the 'Worst Decisions of the Supreme Court'

March 5, 2014 - GamePolitics Staff

A national press tour for the Fourth Edition of Joel D. Joseph's book chronicling (what he believes) are the worst decisions made by the United States Supreme Court in recent years is about to get underway. The book was published by Imprint Books in December of last year and was recently updated with new material.

EFF Urges SCOTUS to Clean Up Software Patent Law in Amicus Brief

March 3, 2014 - GamePolitics Staff

The Electronic Frontier Foundation (EFF) has asked the U.S. Supreme Court to reign in overbroad patents and "clean up the mess that is software patent law" in an amicus filed last Thursday. The EFF's amicus brief was related to a case the court is set to hear: the long-running Alice Corp. v. CLS Bank. The case is over a patented computer system that helps close financial transaction by avoiding settlement risk.

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Supreme Court Denies NCAA Request in College Sports 'Likeness Case'

January 15, 2014 - GamePolitics Staff

Earlier this week the U.S. Supreme Court rejected the National Collegiate Athletic Association’s (NCAA) attempt to become a party to a lawsuit regarding the rights of the NCAA and other entities to use athletes’ likeness in video games, publicity purposes, and other materials.

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NSA Will Continue Bulk Spying Despite Lawmakers Efforts

December 12, 2013 - GamePolitics staff

An interesting report on Ars Technica reveals that the National Security Agency would continue bulk spying activities even if Congress passes a law forbidding them to do so. In fact, the agency would likely take the fight to court - though which court that would be remains uncertain.

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U.S. Supreme Court to Hear Software Patent Case

December 9, 2013 - GamePolitics Staff

On Friday the Supreme Court announced that it will take on a case that will examine the validity of software patents. The court will hear Alice v. CLS Bank, which will attempt to answer the question of whether so-called software patents are impermissibly abstract. In May of this year a divided federal court was deadlocked on the case, with five judges voting to strike down patent claims to a "computer system programmed to implement a financial transaction," and five judges ruling to uphold the claims.

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Keller v. EA Delayed for Supreme Court Review Petition

August 22, 2013 - GamePolitics Staff

It looks like Electronic Arts is getting a little breathing room from the Ninth Circuit Court of Appeals in San Francisco this week concerning Keller v. Electronic Arts.

On July 31 the Ninth Circuit ruled that the company wasn’t protected by the First Amendment from former college athletes’ claims that the company violated their rights by using their likenesses in its NCAA Football games without paying compensation or getting permission.

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Supreme Court Justice Kagan Played Video Games to Prepare for Brown v. EMA

August 21, 2013 - James Fudge

There's a common perception that the Supreme Court justices rely too heavily on the opinions of their younger staffers when it comes to technology. But a story on Talking Points Memo reveals that at least some of the justices are trying a bit harder to learn things on their own - particularly when it comes to technology that is completely foreign to them.

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Free Speech and Lap Dances: NY's Exotic Dancing Tax May Get Supreme Court Review

August 8, 2013 -

The U.S. Supreme Court is considering a review of the 677 New Loudon Corp. v. State of New York Tax Tribunal, following a decision from the New York Supreme Court that the state government may tax exotic dancing but not other forms of dancing. Free speech advocacy group Media Coalition thinks that if the Supreme Court were to review this decision, it would likely overturn it because it violates the First Amendment. The group recently filed an amicus brief with the court urging it to review the case.

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Two Years Ago Today, Video Games Won In The Supreme Court

June 27, 2013 -

Two years ago today, the US Supreme Court ruled in favor of the First Amendment rights of gamers and the games industry. This ruling came about after years of legal battles between the games industry and various states. This particular ruling was over a legal dispute between the state of California and the games industry.

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Supreme Court Rules That First Sale Doctrine Not Limited by Geography

March 19, 2013 -

Broadcasting Cable reports that the U.S. Supreme Court has overturned a Second Circuit ruling on a First Sale Doctrine case that could expand its protections beyond U.S. borders. The court ruled that the Second Circuit court erred when it ruled that First Sale Doctrine did not apply to work legally made abroad and imported into the United States.

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Lead Council on Brown v. EMA Joins Media and Entertainment Law Firm

July 16, 2012 -

Former Entertainment Software Association (ESA) senior vice present and general counsel Kenneth Doroshow has joined the law firm of Jenner & Block as a partner. Jenner & Block is a law firm that specializes in media and entertainment and is located in Washington D.C.

Doroshow and Jenner & Block partner Paul Smith led the legal team that won the Supreme Court Case Brown v. EMA. The court ultimately struck down the California law authored by California State Senator Leland Yee (D- San Francisco).

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How the Internet Helped Shape Opinions on Brown v. EMA SCOTUS Decision

July 9, 2012 -

In the old days, Supreme Court Justices had very little information to turn to outside of legal briefs presented by combatants and case law when making a ruling, but a new study by William & Mary law professor Allison Orr Larsen finds that justice are increasingly turning to information on the Internet to shore up their opinions. According to research from Larsen, there were more than 100 instances where justices used information on the Internet in their opinions.

Supreme Court Poised To Rule On Important First Sale Case

June 15, 2012 -

The First Sale Doctrine has been an important part of copyright law for well over a hundred years now and an important part of the gaming culture for the last 30 years or so. Unfortunately, these last few decades have also seen a lot of effort to erode what protections consumers have to resale their property without the permission of the copyright owner. Once again, the Supreme court is poised to rule on how far the protections the First Sale Doctrine go when it comes to copyright.

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WildTangent Patent Fight Could Change Future Patent Claims

May 30, 2012 -

Last week the Supreme Court told the Federal Appeals Court that it needs to reconsider its ruling in WildTangent, Inc. v. Ultra- mercial, a patent infringement battle that relates to seeing paid advertisements before viewing or using copyrighted material online. Business leaders like Google and Verizon have sided with WildTangent on this one, as well as the Electronic Frontier Foundation. The tech industry is also watching this case very carefully because it could signal an end to patents with weak definitions or general software ideas or techniques being awarded easily.

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Sandra Day O'Connor's 'Counties Work' Game Launches

May 3, 2012 -

The nonprofit started by retired Supreme Court Justice Sandra Day O'Connor has launched an online game to teach children about their local government. O'Connor is spending her time in retirement pushing the idea that children and Americans in general need to learn more about their state, local, and federal governments. The game is called Counties Work, and was put together by O'Connor's group iCivics and the National Association of Counties.

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Supreme Court to Revisit First Sale Doctrine in Next Term

April 17, 2012 -

The Supreme Court will hear a case related to the First Sale Doctrine. The court decided Monday that it would hear arguments in its next term related to a case that will test the reach of U.S. copyright law outside of the United States. The Federal circuit courts of appeal are split on the issue. The case is Kirtsaeng v. John Wiley & Sons (docket 11-697).

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EFF Takes Patent Fight to the Supreme Court

March 9, 2012 -

The other day we showed you an Infographic the Electronic Frontier Foundation (EFF) made concerning the harm that the current patent system in the United States. Today we'll tell you what the advocacy group is doing about it on the legal front.

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Happy Thanksgiving!

November 24, 2011 -

GamePolitics is going dark today in observance of Thanksgiving and boy howdy do gamers like us have oodles to be thankful for this year.  Fall 2011 is jam-packed with more awesome video games than most will ever have the time (or money) to play.  See the bottom of Leland Yee’s recent “Don’t buy these video games” press release to parents for a few good suggestions.

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Thinkfinity Education Speaker Series Interviews Sandra Day O’Connor

October 13, 2011 -

In an exclusive interview with Verizon Foundation's Thinkfinity Education Speaker Series, retired U.S. Supreme Court Justice Sandra Day O’Connor urged educators in the United States to do their part to enliven civics education and engage students in the democratic process.

"You have to study [civics] and be taught how our system of government works," Justice O’Connor said. "And you have to be shown how each individual can be part of it and can make things work.”

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Brown v. EMA Expenses Kicked to Ninth Circuit

October 3, 2011 -

It looks like the State of California and the Entertainment Merchants Association (EMA) have not quite completed their courtroom business together, but the rest of their battle will take place in a lower court.

The Supreme Court of the United States chose not to make a ruling on the EMA’s request that the court award it $1.4 million in attorney’s fees and expenses related to Brown v. EMA (08-1448). Instead, the court sent it back to the Ninth Circuit Court for adjudication.

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Sony Changed ToS Because of AT&T Mobility v. Concepcion Decision

September 21, 2011 -

You may think the unprecedented and massive security breach that took down multiple Sony services including Sony Online entertainment and PlayStation Network is what pushed Sony to make the changes it did recently to the PSN Terms of Service, but a CNN report points to another reason: The Supreme Court. Last week Sony changed the document for PlayStation Network asking customers to give up their rights to file class-action lawsuits against the company and its partners.

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Paul Smith and Gaming the Courts

August 4, 2011 -

Metro weekly profiles Paul Smith, one of the leading Supreme Court litigators in the country, and particularly his noteworthy work on Brown v. EMA. But before tackling that landmark case, Smith has (and still does) fought to advance gay equality in the courts. Smith was a key factor in successfully arguing Lawrence v. Texas before the Supreme Court in 2003, which resulted in ending sodomy laws.

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Justice Kagan Talks About Free Speech, Brown v. EMA

August 3, 2011 -

U.S. Supreme Court Justice Elena Kagan recently attended the Aspen Institute’s McCloskey Speaker Series, in Aspen Colorado. During a conversation with moderator Elliot Gerson, Kagan reflected on her experiences as a new Justice, the misconception that Justices don't like each other and the case she found the most difficult to rule on during this term. It turns out that the case she is referring to as most difficult was Brown v. EMA, commonly referred to as the California Violent Video Game Law."

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Law of the Game Tackles Brown v. EMA Decision

July 11, 2011 -

Mark Methenitis finally delivers a Law of the Game column over on Joystiq that tackles the Brown v. EMA Supreme Court decision. First he apologizes for the delay, then jumps right into the important take-aways that impact the industry and the public.

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Denver Archbishop Calls SCOTUS Decision 'Wrong'

July 5, 2011 -

In a July 1 opinion piece in First Things, Denver Archbishop Charles J. Chaput wrote that the recent U.S. Supreme Court decision on the California video game violence law (Brown v. EMA) is "wrong," and will add "poison" the country's future.

Chaput also wrote that the court's ruling "extends and elevates the individual’s right to free expression – or in this case, a corporation’s right to make a healthy profit - at the expense of family sovereignty, the natural rights of parents and the intent of the Constitution’s authors."

Chaput went on to write that the ruling overlooked the government's duty to protect "human dignity and the common good."

"A law which respects mothers and fathers trying to make good choices for their family does just that," he wrote.

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The Daily Show Takes on SCOTUS Video Game Ruling

July 1, 2011 -

The Daily Show with Jon Stewart takes a few jabs at the Supreme Court's ruling on Brown v. EMA. At first glance it seems like Stewart goes hard after videogames, using several admittedly gratuitous video clips from the new Mortal Kombat game. As the first scene unfolds on the monitor Stewart feigns holding back on vomiting and screams, during the second scene he makes a joke about the female character having a wardrobe malfunction. In between he throws a joke in about Super Mario Boners (a Photoshop of a Super Mario Galaxy cover with a huge fleshy erection).

Stewart's point is one that many are making this week; that sex is even taboo at the Supreme Court and that sexual imagery continues not to be treated on the same footing as depictions of gratuitous violence.

Point taken and noted.

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Papa MidnightSpeculation from PC Gamer. Don't hold your breath. http://www.pcgamer.com/2014/07/21/microsoft-job-listing-says-nice-things-about-pc-gaming-isnt-clear-if-it-means-them/07/21/2014 - 5:58pm
MaskedPixelanteI dunno, it's probably Vevo powertripping.07/21/2014 - 5:52pm
Andrew EisenMP - Makes you wonder what the intention behind the removal was. Stop the RickRolls? Yeah, like removing that one video is going to make a difference.07/21/2014 - 3:27pm
MaskedPixelantehttp://www.billboard.com/articles/business/digital-and-mobile/6165313/youtube-blocks-original-rickroll-video Moment of silence, the original Rickroll video has been blocked in many regions.07/20/2014 - 3:53pm
PHX CorpUseless DLC news: Killzone Fart Pack http://ps4daily.com/2014/07/killzone-fart-dlc/07/20/2014 - 12:56pm
MaskedPixelantehttps://www.youtube.com/watch?v=uU1mK2ig_GU They did their research beforehand.07/19/2014 - 4:41pm
Sleaker@james_fudge - are you sure the FCC can pick and choose? the general rules I read as passed in the act don't really indicate that, but I didn't read through the entirety.07/19/2014 - 4:19pm
MaskedPixelanteOf course, Saban's entire point hinges on them not knowing what the tokusatsu genre is.07/19/2014 - 1:57pm
lomdrLink to where you saw this, Sora-chan?07/19/2014 - 1:50pm
MaskedPixelanteThis is just... confusing to me... They're not being sued, but it looks like extortion, but maybe now the devs can make demands of Saban? I dunno...07/19/2014 - 1:47pm
MaskedPixelantehttp://www.joystiq.com/2014/07/18/chroma-squad-dev-agrees-to-royalty-split-ultimatum-from-power-ra/07/19/2014 - 1:43pm
Sora-ChanSo apparently, Towns is updating again. Not sure what that means, since last we heard it got abandoned.07/19/2014 - 5:42am
Matthew Wilsonthe 10c is based of the fact that it only cost them 2c a gig to send data around to start with, and that does include infrastructure07/18/2014 - 5:24pm
Matthew Wilsonhere is the thing the average user does not use enough bandwidth to justify usage based billing at most they would be allowed to charge 10c a gig. the avrage user would need to use around 600 gigs a piece.07/18/2014 - 5:23pm
james_fudgeThe FCC can apply what rules it sees fit and ignore rules that make no sense under Title II.07/18/2014 - 4:57pm
Sleaker@MW - ahhh thanks for the info. I still don't see how Title II or reclassifying would benefit industry or do what people are asking the FCC to do.07/18/2014 - 2:43pm
Matthew Wilsonif they do, they would than be subject to the utility commission for price approval. the short answer is no because it would bring even more regulations.07/18/2014 - 1:50pm
SleakerIf Internet gets rebranded as a Title II do you think cable companies will start charging per-usage similar to every other utility?07/18/2014 - 12:57pm
MaskedPixelanteI guess 'recommiting to classic style JRPGs like the upcoming Bravely Second' is coming later, now is the time for microtransactions at a level that would make EA say "guys, take it easy on the paywall".07/18/2014 - 10:39am
MaskedPixelantehttp://www.joystiq.com/2014/07/17/final-fantasy-record-keeper-relives-the-series-battles-for-mobi/ Square is really, really, REALLY hoping you all forgot that Final Fantasy: All The Bravest was a thing...07/18/2014 - 10:36am
 

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