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The latest LGJ looks at how the current referral systems could easily evolve into something that could actually land game companies in hot water: pyramid schemes.

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This week's LGJ dissects 'ecogenerism' as it applies to regulating video games based on a new paper from Michigan State University School of Law.

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In this LGJ, a discussion of the role of the FCC and a little talk about the idea of universal ratings.

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This week's LGJ address some possible alternate routes the government might use to regulate video games, rather than the typical violence argument.

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Does the game industry have some reasons to worry about anti-trust? Perhaps. Check out this week's LGJ to learn more.

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Bloggers in the video game realm know they've truly "made it" when Jack Thompson personally responds to a post. While I haven't been able to verify the identity 100%, the responses I received are generally consistent with Mr. Thompson's form, so I thought I would take this opportunity to respond to them, but without the name calling Mr. Thompson feels necessary to include.

jackthompson said...

Dennis McCauley got it wrong, of course and as usual. The FTC reg pertains to use of a credit card to verify a parent's identity, not a minor's age. Go read what he links to at the FTC on his site, and you'll find you're wrong.

It is a violation of bank card agreements to use credit cards as age verifiers, and obviously so since kids as young as 12 have credit cards and since junior can "borrow" dad's card. Pretty simple stuff, really, if your brain has not been fried by games.

The last time I sued Best Buy in this regard, they caved and settled and agreed not to sell M games to kids. They are in breach of the agreement, as well as violating Florida's anti-fraud statute. It's a shame you all don't know what you're talking about. Jack Thompson

October 25, 2007 5:35 PM

jackthompson said...

Actually, it is up to the government to decided these things, just as it is up to society to stop 7-11 from selling beer to 12 year olds. Duh. That's why we have a deceptive trade practice law in every state in the union. It's called democracy, gamer nerds. Deal with it. And grow up.

October 25, 2007 5:38 PM

It is so difficult to select a place to begin. I suppose I will start from the bottom, where you make the broad statement that it is up to the government to decide "these things." What you have stated is a philosophy on governance, not a fact. In your mind, the government should be free to control the hearts and the minds of the people as they so choose. In reality, our democratic republic has taken a small segment of the choices people can make and placed restrictions upon them. Alcohol, tobacco, and pornography are all among the things with restricted sales to minors. Movies, music, and video games are not. As I have pointed out repeatedly, there is no content beyond the level of the Saw movies in even the Manhunt games. If you had taken the time to experience them, you would know this to be the case. Therefore, if your basic supposition is that the government should add violent media to the category with alcohol, tobacco, and pornography, then so be it. But there is a logical fallacy in attacking content in only one medium when the same content exists in another medium which is equally accessible to the people you claim to be trying to protect.

Also, contrary to what you seem to believe, there are in fact people who do not agree with you on a philosophical level. In fact, there are even people who vote for the same candidates you do who do not agree with your basic ideology that the government should have unlimited control to censor content. Moreover, there are many people who believe the government is not some grand babysitter or pseudo-parent who should be making decisions for people. In fact, it has been argued that the usurption of personal responsibility by "progressive" government programs has been a key cause of the downward trend of society, tracing back to unnecessary government coddling in the New Deal.

That being said, your view is in such the substantial minority that it cannot be allowed to prevail. Tyranny of the minority cannot be tolerated (and if you're not familiar with the concept, I suggest you brush up on your Federalist Papers). In fact, your very position that violence is "obscenity" is fallacious under the Burger test for "obscenity":

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Emphasis added to the key element, the prurient interest. There is no sexual arousal associated with violence for the average person.

This brings us to the error in your "for the children" argument. If your goal were to simply keep these games out of the hands of minors unless their parents decided otherwise, I doubt seriously you would face much opposition. No one opposes movie theaters or Wal-Mart for policies of this sort. The difficult aspect is that your goals go well beyond "the children" to keep this content out of the hands of adults, whom are more than capable of making their own decisions, to the point that you eventually want to run many, if not all, game manufacturers out of business. (I'm still unclear if you would start to target less objectionable content, say Smash Bros. Melee, if you succeeded against the most extreme outlying targets.) Anyone who has monitored your commentary knows that you would just assume punish parents who buy T or M games for children under 13 and 17 respectively as you would prevent the kids from playing the games. Ultimately, that is the parent's decision, not yours, to make.

Speaking to your credit card reference, children under 18 cannot acquire credit cards on their own. I will grant you that Dennis's reference is not exactly on point, but the concept is essentially the same. Anyone under 18 with a credit card has been granted said card by someone of legal age, likely a parent or guardian. In that case, the person who has the card has given implied consent that the card be used, and thusly implied consent to purchase the M rated game. Ultimately, the account holder is still in control, and to dictate otherwise would mean that you are preventing people who are 18 from easily purchasing games from online retailers.

You also mention "junior can 'borrow' dad's card." If Junior has asked for permission, then the parent has granted permission to play the game. If Junior has not asked permission, then Junior has more to worry about than the content of the game as he's already committed fraud and identity theft.

Your comment about Best Buy "caving" really has little to do with the present situation. Large companies often choose to settle disputes to discontinue wasting time on what amount to nothing more than meritless nuisances. It it often cheaper and quicker than proceeding with legal action.

Finally, I do take some personal offense to the implication that games have "fried my brain." I've been gaming for nearly two decades, but I also have an undergraduate and two graduate degrees. If you continue to assume that you'll never encounter anyone on the opposite side of the debate with an an ounce of intelligence, you'll continue to have your simplistic responses outdone by intelligent gamers. Eventually, sensationalists in the media will tire of your particular issue, and you will be relegated to a historical footnote.

I'm certain many of you, the readers, have seen the latest Jack Thompson coverage on Game Politics found here and here. Dennis was quick to point out the FTC provision about credit card ownership being adequate proof of age for online transactions, and the FoxNews contributor was quick to play the free speech card. However, there's an elephant in the room I'd like to address.

Everything Mr. Thompson has said about games applies to movies on DVD.

Anyone with a credit card can go to Amazon.com and pick up Saw I, II, or III (unrated, meaning the more violent cut than the theatrical one) just as easily as you can order Manhunt 2. The same applies to Best Buy, Circuit City, or whatever other entertainment online store you'd like to site. To the same ends, in-store id checks are equally lacking on these (and other) movie titles. While I haven't played Manhunt 2, I can only imagine the graphic content is probably on par with the Saw series, which is exceptionally brutal if you haven't seen the movies. Given that the research on the impact of media is mixed, and that movies have been found to affect young people like games by some studies, why ignore the movie industry?

There can only be a few answers:
1. Mr. Thompson is afraid of the people in the movie industry, as they would likely be viewed as "more powerful" than the game industry.
2. Mr. Thompson is giving undue weight to the unproven link between interactivity and a heightened impact.
3. Mr. Thompson has an unhealthy fixation on and unequivocal bias toward games, which cannot easily be explained.
4. Mr. Thompson's logic is flawed, for some other unexplained reason, so that he either ignores or actually favors violent movies. (Perhaps he is a Saw fan.)

The simple point being: If you would like to go on a crusade against the media, go on a crusade against the media, not one medium.

Ultimately, the decision should still be left to the parents, and the tools are in place for the parents to make those decisions. It is not up to the government, or Mr. Thompson, to make those decisions for society, parents who are failing to perform their duties as parents, or parents who are actively monitoring their child's media consumption. And if anyone is to be held responsible, it should be the inadequate parents, not the game manufacturers, game retailers, or game raters. I can only hope that the news media will tire of this issue soon, or that the American people will begin to realize that playing the "For the Children" card has reached a point where it should be accompanied by automatic scrutiny, as it is rarely actually being used to help the children anymore.

Full opinion available here.

As could have been predicted based on other verdicts, the California game legislation has been struck down, in whole. While the court never reached the labeling requirement, it struck down the act as a whole under a strict scrutiny test. For those not familiar, strict scrutiny requires that a government use the least restrictive means of accomplishing their goal, narrowly tailor their legislation to the issue, and have a compelling government interest in the regulation. The court commented on two of these elements.

On having a compelling interest, the court stated:
Although Judge Posner's comments emphasize the need to proceed carefully in restricting a minor's exposure to violence, the Act nevertheless passes the first requirement of strict scrutiny as the government has a compelling interest in protecting the physical and psychological well-being of minors. The state can legitimately restrict speech if such a restriction is narrowly tailored and will prevent or significantly decrease the likelihood of antisocial and aggressive behavior in minors—not merely how a minor thinks of violence.


On least restrictive means, the court stated:
To pass the strict scrutiny test, therefore, the state must demonstrate that the industry labeling standards, either alone or combined with technological controls that enable parents to limit which games their children play, do not equally address the state's interest in protecting the physical and psychological well-being of children.

In conclusion, the court states:
The legislature does have the power, despite Brandenburg, to enact legislation that limits a minor's First Amendment rights if the legislation can be shown to truly protects a minor's psychological and physical well-being and is narrowly drafted to pass strict scrutiny. However, at this point, there has been no showing that violent video games as defined in the Act, in the absence of other violent media, cause injury to children. In addition, the evidence does not establish that video games, because of their interactive nature or otherwise, are any more harmful than violent television, movies, internet sites or other speech-related exposures. Although some reputable professional individuals and organizations have expressed particular concern about the interactive nature of video games, there is no generally-accepted study that supports that concern. There has also been no detailed study to differentiate between the effects of violent videos on minors of different ages.

What does this all mean? The issue is twofold. First, the court finds that the labeling requirement may not actually achieve the goals set forth by the government. Second, the court finds that there is not substantial and compelling evidence that games really influence minors independently of other entertainment media.

I imagine the most compelling question left is whether the New York legislature will abandon the issue in the wake of yet another video game regulation being struck down. While the California case wouldn't be binding on New York in its current state, it still seems likely that a similar result would be reached.

[Via GamePolitics]

I do occasionally step beyond the bounds of the typical Law of the Game topics to editorialize, and politics has long been an interest of mine, as evidenced by my degree in Government (Political Science) from the University of Texas.

A new campaign ad by Presidential hopeful Mitt Romney declares that our children are drowning in a an ocean of filth, citing violent games among other media, and states that it is time to clean up the waters. I have nothing against Mr. Romney personally, he is just the latest in a standing trend against the game industry.

We are drowning, all of us, in a sea of shallow politics and fear mongering. Both Presidential and Congressional approval are at historic lows, and yet, rather than deal with issues that matter, the politicos of the United States have opted to gravitate to video game violence. Why? It's always easy to amass votes under the guise of "protecting the children" from the evils of society, whereas it seems like an impossibility to win support on a platform of parental responsibility. And yet, it has become apparent that many parents are, simply put, failing their children. But should the battle cry of those wishing to defend those who cannot defend themselves really be "The government should do it for us!" Do we, as a people, really want to leave the decision on how to raise our children in the hands of a body that is barely approved of by a fourth of the population?

There are ample other issues that this country should resolve in a timely fashion, and I think it is high time that the people demand more from their representatives than an appeal to the lowest common denominator of potential issues. No matter where you may stand on other issues, or whom you may support, wouldn't you prefer a response to an issue of substance rather than repeated attacks on the gaming industry? Is there really a value to expend legislative time on a bill that will place a 16 year old GameStop clerk in jail for selling a game rated "M" to another 16 year old? Moreover, in the wake of such legislation, will we have to restrict the hiring practices of game retailers, when no such restriction exists for retailers of movies or books?

I can only imagine the possibilities of the path on which we tread. For now, it may be sales restrictions, but in the future, it could be an act of "child endangerment" to let your own children play games that you determine are appropriate for them. It is not beyond the realm of possibility that we end up in a world where a parent can let a 15 year old watch an R rated movie without repercussion, but can face a CPS investigation or criminal charges for letting the same child play an M rated game. This could be the result of letting fear mongering dictate media policy.

I believe we should expect more from our elected officials. They are supposed to represent us, not dictate our opinions to us. Accordingly, the time may be upon us to let our voices be heard and write to our representatives to let them know with the utmost respect that we are tired of their time being wasted on this non-issue.

I don't want Washington dictating what video games can and can't be played in the privacy of my living room. Do you?

As I have watched the Manhunt 2 saga unfold, I have noticed that the issues facing Take 2 and Rockstar are really the same issues anyone dealing with governmental or pseudo-governmental groups faces. And so, I wanted to share a few general regulatory considerations with you. Keep these in mind if you ever have to deal with a regulatory agency, be it for a video game or a franchise system or an SEC filing or even just getting a passport.

1. Regulators appreciate being treated as people, and a friendly, polite tone will often go a long way.
How would you react if someone called you just to verbally berate you on the phone? Believe it or not, regulators get plenty of anger taken out on them. And, believe it or not, regulators are people, just like us, and not just some faceless mouthpiece for the greater bureaucracy. If you are polite to them, they will usually be polite to you.

2. If you have a problem with one regulator, you probably have a problem with a half dozen regulators.
Regulators among different regulatory bodies do talk to each other. Which means if you've had a regulatory problem in one place, other regulators probably already know about it, and are probably already looking into it for their jurisdiction. Just keep that in mind if you receive a compliance letter from one regulator, because a few more are probably working their way into the mail.

3. If you are a thorn in a regulator's side once, they will certainly be a thorn in your side for quite some time.
If your company is causing a big problem for a regulator, don't expect them to forget it. This doesn't mean they will actively pick on you, but it seems they might read your next document (or play your next game) a little more closely.

4. Blend into the crowd as much as possible.
This relates back to the previous. If your company blends into the crowd, it may mean you are cut a little more slack. Nothing is a sure bet, but calling attention to yourself is usually not beneficial.

5. Remember, it is their job to regulate.
And it's not personal. You may feel like all of the regulators are out to get you, but it is just their job. They are employed to find fault with what you have provided or what you are requesting. If it was just a rubber stamp approval, then it wouldn't accomplish whatever the original governmental goal is.


In conclusion, regulators are just people doing their job, and the people you talk to aren't the ones who came up with the rules they are enforcing. In fact, they may disagree with them just as much as you do. As such, a little common courtesy often goes a long way, and to a certain extent, so does a little luck.