While Rhode Island Bill S.2156 drew backing from the Parents Television Council, an unlikely pair has come out against the Bill, which proposes fines and possible jail time for retailers that sell “M” or “AO” rated games to underage patrons.

You might expect that the Entertainment Software Association (ESA) is against the Ocean State legislation. The organization offered us this statement from Rich Taylor, ESA Senior Vice President of Communications & Industry Affairs:

The International Intellectual Property Alliance (IIPA) has issued its annual Special 301 Report to the United States Trade Representative (USTR) outlining its take on the state of international piracy.

IIPA members include the Entertainment Software Association (ESA), Motion Picture Association of America (MPAA), Business Software Alliance (BSA) and Recording Industry Association of America (RIAA).

The report identified 35 countries as hotspots for piracy, including Canada. It was recommended that Canada remain on the Priority Watch List as it “stands virtually alone among developed economies in the OECD (and far behind many developing countries) in failing to bring its laws into compliance with the global minimum world standards embodied in those Treaties.” It was also suggested that Mexico be added to the Priority List, as, "A mixture of legislative deficiencies and a lack of consistent, deterrent enforcement have made Canada and Mexico piracy havens."

Spain, which is already on the list, should be placed under “close scrutiny” according to the IIPA as “Enforcement in the online environment is made more difficult as a consequence of Spain’s Attorney General issuing a circular that decriminalizes infringements that occur via peer-to-peer (P2P) networks. “

Brazil was also a target of the report, with a recommendation that the country be kept on the Watch List due to increasing piracy and the “lack of an effective legal or practical framework for addressing it.”

Also mentioned in the report was a study done by the ESA into illegal downloading practices. In December of 2009 the group tracked 200 member-published titles across P2P. It was estimated that 9.78 million downloads of the games in question were completed over the timeframe.

The full list of countries on the Priority Watch List are: Argentina, Canada, Chile, Costa Rica, India, Indonesia, Mexico, China, Philippines and Russian Federation. Remaining lists, as well as individual reports for countries, can be viewed here.

Countries on the USTR Watch List risk being on the receiving end of sanctions imposed by the USTR.

In order to address copyright piracy, Attorney General Eric Holder (pictured) has launched a Department of Justice Task Force on Intellectual Property.

Reuters reports that the new initiative came about following a meeting last December of Vice President Joe Biden, Holder and a veritable “who’s who” of members from the entertainment media, including representatives from the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), Sony Pictures, Warner Bros., Time Warner, NBC Universal, Universal Music and Walt Disney Co.

A full list of those who attended the summit can be found here.

The task force will work with state, local and international law enforcement to battle IP theft. Holder, in a statement added, “The rise in intellectual property crime in the United States and abroad threatens not only our public safety but also our economic well-being.”

Biden added, "Theft of intellectual property does significant harm to our economy and endangers the health and safety of our citizens."

The Entertainment Software Association (ESA) came out in favor of the task force, with President and CEO Michael Gallagher, who attended the meeting, stating, “Intellectual property is the lifeblood and backbone of entertainment software. Consumers benefit with the lower cost, high-quality and more diverse title offerings that are made possible by strong measures protecting the creative works of our industry’s artists.”

TechDirt labeled the original meeting (which led to the task force being formed) a “one-sided, piracy summit,” and questioned the relationship between Biden and Hollywood.

Public Knowledge also took umbrage with the original meeting, saying, “It is unclear why three cabinet officers, several subcabinet officers, the directors of the Federal Bureau of Investigation and the U.S. Secret Service are needed to tend to the worries of the big media companies, particularly the motion picture industry which is completing a year in which it will set box-office records.”

The Entertainment Software Association (ESA) has announced the addition of its first two new members of 2010.

Deep Silver, a publishing division of Koch Media, was launched in 2002 and has published over 60 titles. Fellow new member Slang, who specializes in publishing Hispanic-themed titles, will launch its first game (Lucha Libre AAA: Heroes del Ring) this summer.

ESA President Michael Gallagher on the additions:

Deep Silver’s and Slang’s membership in the ESA reflects the diversity of our industry. ESA’s growing roster also highlights the continued importance of our goals of protecting intellectual property rights, preventing piracy, and upholding freedom of speech.

With the two new members, the ESA now counts twenty-nine members in all.

A grant from the Entertainment Software Association Foundation has enabled North Carolina’s Cumberland County to enable a free tip line for students to anonymously report on pending crimes in their schools.

The Speak Up Cumberland County lets students, or parents, text or call 1-866-SPEAKUP in order to bring suspicious activities or those plotting crimes to light. While the ESA Foundation’s grant was locked in a while ago, the recent occurrence of a seven-year old bringing a gun to school in the region accented the need for such a plan.

State Representative Rick Glazier talked to the FayObserver about the importance of the program:

The biggest threat to schools isn't from someone coming from outside in. It's from someone boiling over inside.

The ESA Foundation’s contribution to the program was pegged at $200,000 over two years by the article. The funds will be used by the Speak Up’s creator, PAX, to promote the program in local media and to print materials and education kits. The ESA Foundation also supported the Speak Up program in 2006 and 2007.

The Entertainment Software Association (ESA) has won a preliminary injunction in its lawsuit against the Chicago Transit Authority (CTA) over the banning of advertisements for adult-rated videogames.

An ordinance (008-147) that took effect in January of 2009 prohibited any advertisement that “markets or identifies a video or computer game rated ‘Mature 17+’ (M) or ‘Adults Only 18+’ (AO).”  The ESA argued that such a ban unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.”

The United States District Court for the Northern District of Illinois granted the ESA an injunction, with Judge Rebecca R. Pallmeyer stating:

…the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.

The ESA further challenged that the CTA ordinance is redundant since videogame-related marketing is already regulated by the Entertainment Software Rating Board’s (ESRB) Advertising Review Council.

ESA President Michael Gallagher was obviously pleased:

This ruling is a win for Chicago's citizens, the video game industry and, above all, the First Amendment. It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources.

The Federal Trade Commission’s (FTC) seventh report on Marketing Violent Entertainment to Children (PDF) contains good news for the videogame industry.

The FTC review labeled the games industry the "strongest” of the three entertainment sectors (games, music and movies), when it came to self-regulation. The Commission added that the game industry “did not specifically target M-rated games to teens or T-rated games to younger children.“ Additionally, compliance with the Entertainment Software Rating Board (ESRB) code within the videogame industry was “high in all media.”

Undercover shopping stings run by the FTC reported that retailers were “strongly enforcing” age restrictions for M-rated games, with “an average denial rate of 80%.” GameStop and Target were labeled as top enforcers. Toys R Us however, was specifically labeled as trailing when it came to enforcement, with only a 56% denial rate. The report called the use of gift cards to buy games online a “potential gap in enforcement.”

On the advertising side, the FTC found that game companies demonstrated a “high degree of compliance” when it came to television ads, with only a “few instances” of non compliance over a more than two-year period. The same description was used to depict compliance with videogame print ads.

FTC suggestions aimed directly at the game industry were adding content descriptors to the front of videogames, alongside ratings, and to continue to provide more detailed rating summaries online for parents. Additionally, all three industries were told to pay more attention to compliance within online and viral marketing campaigns.

Entertainment Software Association (ESA) President and CEO Michael D. Gallagher was understandably happy about the report, saying, "Today's FTC report is a strong acknowledgement and validation that industry-led self-regulation efforts are the best way to provide parents and retailers with the resources and support they need to keep our kids' entertainment experiences suitable."

The ESA press release also included a quote from National Institute on Media and the Family (NIMF) head, Dr. David Walsh, who stated, “We join the FTC in applauding the industry's progress. The advancement in technology including parental controls by console makers, identification checking by retailers, and an ongoing effort to improve ratings illustrates that the members of the video game industry have taken our concerns seriously and continue to make sure that kids enjoy games that are age appropriate."

The Entertainment Software Association’s ESA Foundation is continuing its partnership this year with ThanksUSA, in order to help fund scholarships for the children and spouses of U.S. military personnel.

In a bid to raise awareness—and contributions—the pair are once again running an online contest, dubbed Treasure Hunt Five, which serves up American history quizzes, puzzles and anagrams. A series of prizes are available for winners. The game ends on August 15, 2010.

ThanksUSA Executive Director Michele Stork stated:

We are delighted to have the video game industry's continued support in this important endeavor. ThanksUSA has awarded more than $5 million in scholarships to more than 1,850 families across all 50 states and the District of Columbia, with a goal of crossing the 2,000 scholarship mark this year. With ESAF's help, this year we will award more than 200 scholarships to the families of America's armed forces.

For a man who spent more than 13 years making video game advocacy his life, Doug Lowenstein now rarely gives them a second thought.

Gamasutra caught up with Lowenstein for an interesting interview, tied to the fact that he will be recognized at D.I.C.E. in Febraury by the Academy for Interactive Arts and Sciences with a Lifetime Achievement Award, recognizing his years with the Entertainment Software Association (founded in 1994 as the Interactive Digital Software Association).

A former journalist that loved to argue First Amendment issues, Lowenstein said the video game needs to continue to be vigilant in standing up for itself on those grounds:

"I personally feel that any industry that is dependent on creative expression -- which at the core, are what games are all about -- should allow for unfettered opportunity to pursue whatever artistic vision one may have. This industry and any sort of entertainment industry must defend this to the fullest extent possible. If there's any erosion of that, it's a classic slippery slope. The First Amendment needs to stand tall. The industry can never get lazy about defending those rights."

Lowenstein admits that he doesn't keep up with the industry that much any more, but he said it seems that it is starting to get a foothold of acceptance as a form of expression:

"It seems … that there is more acceptance and tolerance, if you will, across the political spectrum for the game community in terms of the content it creates. It doesn't appear that there's the same level of effort to regulate games and game sales. It doesn't appear that politicians are routinely announcing games and game violence and its allegedly corrosive effect on young people and other users."

It doesn't appear that the gadflies and the critics of the industry have the same traction that they did three years ago. It doesn't seem that the media is as obsessed with the industry in terms of the negative bias that it brought to theses issues."

Despite the fact that the industry does not seem to be taking as many slings and arrows it once did, Lowenstein said that associations such as the ESA can't afford to be complacent:

"Even when you're not in the midst of some intense controversy that goes to the core of what the industry is, the absence of that doesn't make the association any less relevant. When people start thinking that, that's a very dangerous and myopic point of view."

Overall, a pretty good interview from a guy that used to eat, sleep and breathe video games for a living.

In a bid to improve science and math comprehension for U.S. school pupils, President Obama has launched an open competition designed to encourage the creation of digital media-based learning experiences.

Launching December 14, the 2010 Digital Media and Learning Competition is being undertaken in conjunction with the MacArthur Foundation, the Humanities, Arts and the Science and Technology Advanced Collaboratory (HASTAC) and National Lab Day. Two categories are offered in the $2.0 million competition—21st Century Learning Lab Designers and Game Changers.

Game Changers will task entrants with creating content, using the PlayStation 3 game LittleBigPlanet, which incorporates science, engineering and math. Sony Computer Entertainment America (SCEA) and The Entertainment Software Association (ESA) are backers of the competition as well, with the former donating 1,000 PS3 systems and copies of LittleBigPlanet to libraries and community organizations in low-income U.S. communities.

Jack Tretton, president and CEO of SCEA added:

“When leveraging the innovative technology of LittleBigPlanet and the PS3 system, both advanced and novice gamers have access to an open canvas to learn, build, and explore entirely new kinds of gaming experiences. There’s no better training ground for anyone interested in digital media.”

Winners will be announced next spring. Winning LittleBigPlanet levels will also be made available to the public.

The Entertainment Software Association Foundation recently raised $800,000 for children’s charities as a result of this year’s annual Nite to Unite event.

The happening took place on October 13 in San Francisco and featured game industry luminaries contributing to the cause by participating in auctions and a casino night. Additionally, the event honored Ubi Soft’s Chairman and CEO Yves Guillemot with the 2009 ESA Champion Award.

ESA President Michael Gallagher said of the event, “This generous giving allows the ESA Foundation to support some truly compelling charitable organizations, including Web Wise Kids, Hope Lab, ThanksUSA and the One Economy Corporation.”

To date the fund raiser has raised over $11.0 million dollars for charities. A video on the ESA website highlights some of the night’s festivities and some of the charitable organizations that will receive donations culled from the event.

The Entertainment Software Association (ESA) and the Entertainment Software Association Canada (ESAC) have issued public kudos to the Royal Canadian Mounted Police (RCMP) and York Police for the pair’s latest efforts against the sale of pirated and counterfeit goods at the Pacific Mall in Markham, Ontario.

Raids on October 29, 2009 followed a two-month investigation into illegal activities at two retail outlets in the mall and resulted in the seizure of two autos and the home of one of the store owners. Manufacturing equipment used to make the counterfeit items was also seized, in addition to nine firearms. Three people were ultimately arrested.

Danielle Parr, Executive Director of the ESAC, commented:

Game piracy is a serious problem that costs the entertainment software industry millions of dollars each year. Law enforcement raids against notorious pirate retailers like those in Pacific Mall send a clear message that trafficking in pirated game products is illegal and will not be tolerated.

The Pacific Mall is indeed “notorious,” having been raided a host of times over the years. The RCMP seized over $800,000 worth of counterfeit DVDs in 2005 and over 49,000 counterfeit DVDs earlier this year.

Videogame legal watchdogs were anxiously refreshing the Supreme Court website this morning for the latest word on the Entertainment Merchants Association (EMA) v. Schwarzenegger appeal.

Unfortunately, however, the case was not listed at all in the 91-page issued Orders (link to PDF). As noted previously, SCOTUS could have denied the appeal without comment last week and then officially noted the result in today’s dispatch., but it appears that the petition for certiorari has neither been granted or denied as of yet.
 

The Entertainment Software Association’s ESA Foundation has awarded $90,000 to a group of aspiring game developers.

30 students around the U.S. were awarded $3,000 each for use in the 2009-2010 academic year. The ESA added that over 200 schools in the U.S. now offer video game courses or degrees.

Industry Gamers has the full list of scholarship recipients.

In response to a Federal Communications Commission Public Notice seeking comments on how the term “broadband” should be defined, AT&T labeled gaming as an “aspirational” online service.

While basic web-browsing capabilities and email were termed core services in the brief dated August 31, 2009, gaming was lumped in with streaming video and real-time voice services. AT&T noted:

…for Americans who today have no terrestrial broadband service at all, the pressing concern is not the ability to engage in real-time, two-way gaming, but obtaining meaningful access to the Internet’s resources and to reliable email communications and other basic tools that most of the country has come to expect as a given.

The Entertainment Software Association replied to the FCC on September 9, 2009, taking umbrage with AT&T’s comments. Kenneth L. Doroshow, The ESA’s Senior Vice President and General Counsel stated:

Online video games are a meaningful part of our participative culture. They remove geographic barriers, connecting people from across the country and around the world. They teach cooperation, cultivate leadership skills, and empower users to express their creativity. Increasingly, games are used for training purposes and to educate students about complex social issues. Entertaining does not mean trivial.

Washington State Attorney General Rob McKenna (left) has partnered with game publishers' lobbying group ESA and Web Wise kids on an educational program aimed at keeping children safe online.

A press release issued by McKenna's office quotes the A.G. on the initiative:

The devices that kids love, from smartphones to computers, are also being used to subject them to cyberbullying, scams and online stalkers. This program deploys a technology that’s very familiar to kids – video games – to teach   important lessons about staying safe in cyberspace.

ESA boss Michael Gallagher was on hand for the announcement, along with Web Wise Kids president Judi Westburg Warren and Washington's Superintendent of Public Instruction Randy Dorn. Gallagher offered his comment:

The ESA Foundation is proud to provide the resources to launch this cutting-edge initiative. With the industry presence of Microsoft, Nintendo and other leading video game companies, Washington is a natural fit for launching this program. Working together, we believe the Web Wise Kids program will help educators teach Washington’s youth how to stay safe online...

A.G. McKenna, a Republican, has previously endorsed the ESRB rating system.

As GamePolitics noted last week, the Federal Communications Commission has floated the idea of a universal content rating system which would span various forms of media, including video games.

While lobbying group ESA quickly raised objections to the concept, the video game industry did quite well in an FCC report on parental controls issued to Congress on Monday. GameCulture has more:

Members of Congress who will receive the FCC's report will find almost nothing negative about the game industry's handling of parental control technology and ratings. Common Sense Media's concern about unrated online content and user-created content is noted but countered by the ESA, which points out that "no rating system or control device can anticipate the extemporaneous world of the Internet..."

While the FCC says it intends to launch a Notice of Inquiry specifically for games, this first round is a clear victory for the industry.  At this rate, even if regulators decide to pursue a "universal rating system," it could end up looking a lot like the system developed by the ESRB.

The Federal Communications Commission will evaluate the potential for a single content rating system that would span various forms of media, including video games, movies, TV and music.

Bloomberg reports that the FCC will study the issue at the direction of Congress:

The FCC action follows congressional queries into whether children are harmed by inappropriate content, such as sex, violence and obscenity. Senators want to know whether revisions are needed to the law to protect children, said Senator Jay Rockefeller...

FCC Chairman Julius Genachowski told Congress in July he was “hopeful that the evolving media landscape” will enhance parents’ power “to pick and choose” what their child sees and hears.

Not surprisingly, game publishers lobbying group ESA is opposed to the idea. Kotaku has comment from ESA VP RichTaylor:

The ESA appreciates the FCC and its important role. However, the ESRB rating system is considered by parents, family advocates, the Federal Trade Commission, and elected officials as the gold standard in providing caregivers with the information they need to make the right choices for their families. Universal ratings will, in the end, only serve to confuse consumers, violate the Constitution's first amendment, and are a solution in search of a problem.

Video game publishers group ESA has released its annual report for the 2009 fiscal year, which concluded at the end of March.

As noted by Venture Beat,

The ESA fought 43 bills aimed at regulating content or controlling access to video games and none became law... Meanwhile, five states enacted tax incentives for the creation of game development jobs. Another 17 states are considering enacting the incentives.

The group said that it will be hard to get the attention of the federal government and Congress, which is preoccupied with issues such as climate change and healthcare. The ESA wants more done to stop piracy of games...

As the Canadian government undertakes a public consultation on copyright issues, the head of game publishers lobbying group ESA Canada has penned an op-ed on the issue for Straight.com.

Not surprisingly, Danielle Parr argues for technological protection measures (TPM) and against mod chips (which are not currently illegal in Canada). Parr writes:

For the video-game industry, TPMs are not only used to prevent piracy and cheating (e.g. “modding” game code to give an unfair advantage over other players); they also enable access to a greater range of features and options that would otherwise be unavailable. Things like parental controls... “trial” or “demo” versions of games, and new digital distribution platforms like Valve’s Steam, Xbox Live Arcade, or the PlayStation Network, all provide greater choice and access for consumers...

By ensuring that consumers have a variety of digital offerings to choose from, legal protection for TPMs allows market forces to protect consumer interests, so if a consumer does not like the conditions of sale or terms of service for one digital product or service, they can simply take their business elsewhere. Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.

Those commenting on the Straight.com piece, however, don't seem to be buying Ms. Parr's arguments. As I post this, there are 15 comments, all of which are critical of the ESA Canada boss's op-ed.

GFOX: Danielle Parr, and the [ESA Canada] are completely out of touch on this issue. By failing to bend to an American lobby group such as the ESA I hardly think that the government of Canada can be seen as "dictating" any particular business model... The ESA's [penchant] for freely spewing unsubstantiated and exaggerated statistical data with the sole intention of striking fear into the hearts and minds of lawmakers is appalling...

NerdOfAllTrades: I agree that measures should be taken to prevent piracy, but punishing your loyal customers with TPM, which will only mildly inconvenience real pirates for the few hours it takes them to remove it... will only make people want to buy fewer PC games.
 
Sébastien Duquette: DRM is a failure... I really don't like Parr's fear-mongering tone. The industry of video game is flourishing, without DRM inforcement

Will: The video game industry has claimed to be on the brink of collapse due to piracy since the 1980s, and yet it somehow continues to grow bigger and more profitable... There will always be free riders who don't pay for their copy, but that isn't relevant. It's how many games you sell, not how many you don't sell that matters... This control-freak mentality... serves only to create hostility between the industry the customers...

AWJ: once you throw in an anti-circumvention law like the American DMCA, your platform monopoly becomes a state-enforced monopoly... Danielle is even arguing is that if the government doesn't give Microsoft and Nintendo and Sony the state-enforced monopolies they want, then it's "dictating the business model". If nothing else, I admire her chutzpah...

WayneB: Let me get this straight - [DRM] is an advantage to the consumer? What a bald faced lie.

Idle: This is a disgusting show of contempt for canadians brought to you by the ESA "of Canada".

GP: In the photo at left, Parr is seen at ESA Canada's Ottawa Day 2009 lobbying event.

The Associated Press reports that the Entertainment Software Association, which represents the interests of U.S. video game publishers, spent $1.2 million on government lobbying efforts during the period April-June, 2009.

Looking beneath the surface, GamePolitics has obtained an actual copy of the ESA's latest federal lobbying report. The document shows that Big Gaming has its fingers in a surprising number of legislative and governmental pies. The following are issues which the ESA reports that it lobbied on in Q2:

• Media regulation
• First Amendment protection
• Entertainment industry ratings
• Parental control technology
• Content/video game sale regulation
• Retailer enforcement of ratings
• Piracy
• Copyright Act (believed to be the DMCA)
• Anti-circumvention
• Patent modernization
• Intellectual property enforcement
• Customs reauthorization
• PRO-IP Act appropriations
• Dept. of Justice appropriations
• Dept. of State reauthorization
• Free Trade Agreements
• Special 301 Designated Countries
• Trade Policy Reform
• Domestic regulatory & administrative issues
• Trade enforcement
• Doha Round Proceedings (trade talks)
• Trade Promotion Authority
• Internet Governance
• Virtual worlds
• Online gaming
• Highly skilled workforce
• H1-B visas
• Green cards
• Immigration reform
• ISP management
• Copyright Enforcement
• Broadband deployment
• Broadband policy
• Consumer Product Safety Improvement Act implementation

Agencies lobbied by the ESA include some surprising entities. Here's the list:

• U.S. House of Representatives
• U.S. Senate
• Federal Communications Commission
• Federal Trade Commission
• National Telecommunications & Information Administration
• U.S. Copyright Office
• U.S. Customs & Border Protection
• U.S. Trade Representative
• Department of Commerce
• Department of Homeland Security
• Department of Justice
• Patent & Trademark Office
• FBI
• National Security Council

DOCUMENT DUMP: Grab your own copy of the ESA's lobbying report... (9-page PDF)

A 27-year-old college student arrested yesterday by federal agents is charged with modding video game consoles.

Matthew Lloyd Crippen, who attends Cal State Fullerton, was charged with tweaking systems from Nintendo, Sony and Microsoft. The arrest was made by agents of the U.S. Department of Immigration and Customs Enforcement (ICE), reports NBC Los Angeles.

Modifying consoles to circumvent video game copyright protection measures is a federal offense under the Digital Millenium Copyright Act. The investigation into Crippen's activities came following a complaint by the Entertainment Software Association; the trade group lobbies on behalf of U.S. video game publishers.

Special Agent in Charge Robert Schoch, who heads the ICE office in L.A. commented on the bust:

Playing with games in this way is not a game -- it is criminal. Piracy, counterfeiting and other intellectual property rights violations not only cost U.S. businesses jobs and billions of dollars a year in lost revenue, they can also pose significant health and safety risks to consumers.

It was 15 years ago today that the video game industry introduced the ESRB rating system to Congress, reports Wired's This Day in Tech blog.

The move came in the wake of Congressional criticism of game violence, particularly the original Mortal Kombat, which seems laughably tame by today's standards. Wired's Chris Kohler writes:

The [Congressional] hearings were largely a response to the popularity of... Mortal Kombat...

Nintendo chairman Howard Lincoln and Sega vice president Bill White took potshots at each other during the hearing. Lincoln said that the Sega CD game Night Trap, another photorealistic, occasionally violent game that the company had rated MA-17, “simply has no place in our society” and testified that “small children” had bought it.

Meanwhile, White’s position was that Sega was more responsible than Nintendo, because his company had [its own] rating system in place...  [Connecticut Sen. Joe] Lieberman would later express his shock that the two executives went after each other with such ferocity.

Lieberman's threat to regulate game content via legislation persuaded the game biz to get its act together. The IDSA (now known as the ESA) was formed and quickly set up the ESRB, which went into operation on September 1st, 1994.

As GamePolitics and other news outlets have reported, the ESA is suing the Chicago Transit Authority over the agency's ban on M and AO-rated video ads.

Here are excerpts from the justification section of CTA Ordinace 008-147, the document at the heart of the ESA lawsuit:

WHEREAS... the Chicago Transit Board established advertising guidelines permitting certain advertising in or upon Chicago Transit Authority vehicles and facilities; and

 

WHEREAS, According to an August 2008 Chicago Sun Times article at least 36 Chicago public school students have been killed since September 2007; and

 

WHEREAS, There is a demonstrable correlation between intensely violent video or computer games and violent or aggressive behavior (see "Video Game Violence and Public Policy" by David Walsh, Ph.D. and "The Effects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School Performance" by Gentile, Lynch, Linder and Walsh; and

 

WHEREAS, There is evidence that many of these violent video or computer games are marketed toward children under 17 years of age (see Federal Trade Commission study, September, 2000)...

The 2000 FTC report is, indeed, an indictment of video game industry marketing practices. On the other hand, the industry has made remarkable strides since then in restricting the access of minors to violent games.

In its May, 2008 report, the FTC found an 80% overall compliance rate in retail ratings enforcement, with top performer GameStop achieving a 94% compliance rate. Given that the CTA ordinance was passed in November, 2008, it's unclear why the 2000 data was used.

The full CTA ordinance may be found as "Exhibit 2" in the ESA's lawsuit. Click here for a copy of the 70-page PDF.

A spokeswoman for the Chicago Transit Authority has commented on the federal lawsuit filed against the agency's ban on M-rated video game ads yesterday by the Entertainment Software Association.

Kotaku reports:

Reached for comment... Wanda Taylor, a spokeswoman for the Chicago Transit Authority, told Kotaku that the authority has not yet been served with the suit but that they feels that the ordinance is defensible.

"The CTA does not allow advertising for alcohol or tobacco products and this ordinance is consistent with that long-standing policy," she said...

Taylor pointed out that they have a number of guidelines in place for determining if an advertisement can run on the CTA. The guidelines, she said, require ads to be truthful and not directed at inciting imminent lawless action. The ads cannot be legally obscene, sexually explicit, depict nudity or portray graphic violence nor can they incite lawless illegal action.

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.

The Entertainment Software Association has filed a federal lawsuit against the Chicago Transit Authority, challenging a 2009 CTA ordinance which prohibits ads for games rated M (17+) or AO (18+) from appearing on its vehicles and facilities. 

GamePolitics readers may recall that in April, 2008 the CTA ordered ads for Grand Theft Auto IV removed from buses even before the game was released. The CTA action followed local news coverage of a rash of shootings in Chicago.

Shortly thereafter, GTA IV publisher Take-Two Interactive sued the CTA, charging that the agency had broken a $300,000 contract for the campaign. The parties settled the case later in 2008, with the CTA granting T2 a six-week GTA IV ad run. However, CTA officials moved to block future ads for M-rated games by passing the new ordinance, which took effect on January 1st and prompted today's legal action by the ESA.

ESA boss Mike Gallagher commented on the lawsuit in a press release: 

The CTA’s ordinance constitutes a clear violation of the constitutional rights of the entertainment software industry. Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment. The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.

The press release also explains some of the legal rationale behind the suit:

The ESA’s suit contends this new ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” In addition, the Complaint argues that the ordinance impermissibly discriminates on the basis of viewpoint and ignores less restrictive means of achieving the supposed ends of the ordinance.  

The ESA also stated that the CTA’s ordinance is unnecessary because game-related marketing is already subject to the Entertainment Software Rating Board’s Advertising Review Council (ARC), which strictly regulates computer and video game advertisements that are seen by the general public.  The Entertainment Software Rating Board (ESRB) assigns content ratings to computer and video games, which, in turn, are displayed on the advertisements for those games.

As GamePolitics has reported, the Massachusetts Bay Transit Authority has a similar ban on M-rated game ads, likening them to X-rated movies. It is unclear at this time whether the ESA will pursue a similar action against the MBTA.

While the lawsuit also encompasses AO-rated games, as a practical matter, such titles are virtually non-existent in the U.S. market.

DOCUMENT DUMP: Grab a copy of the lawsuit here (70-page PDF)...

Here's hoping that Erik Huey lasts longer with the Entertainment Software Association than did his predecessor.

Huey was announced today as the new head of government relations for the video game publishers' trade group. In plain English, that means Huey is the ESA's chief lobbyist. The post has been vacant since Jennifer Manner departed just a month after coming aboard in February.

According to the ESA's press release, Huey is a veteran attorney who has specialized in lobbying for the entertainment, communications and media sectors. His official title will be Senior Vice President for Government Affairs. ESA boss Mike Gallagher offered praise for the new guy:

Erik’s demonstrated advocacy abilities on behalf of numerous entertainment and telecommunications clients will serve him well as he navigates the specific challenges and opportunities that the ESA and our member companies face. As game technologies and gamer demographics continue to evolve, the entertainment software industry will rely on Erik and his team to help foster a beneficial environment for our industry’s innovation and creativity.

Huey, who starts his new gig in August, also has substantial political experience on the Democratic side, according to the ESA's press release:

Huey helped coordinate voter protection and mobilization efforts in Western Pennsylvania for the Obama Campaign for Change during the 2008 primary and general elections. Huey had a similar role during the 2006 mid-term elections, and served as the Kerry/Edwards Campaign’s “Get Out the Vote” Director for Western Pennsylvania in 2004. Huey also served as an advance coordinator for the 1992 Clinton/Gore Presidential Campaign...

As for Jennifer Manner, her story seems to have a happy ending as well. Coincidentally, we also learned today that she has accepted a post with the Federal Communications Commission.

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.

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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.