Friday, May 9, 2008

Our Congress at Work: Anti Game Legislation Alert Edition



In a painfully obvious effort to ride the GTA IV wave, otherwise lackluster representatives Jim Matheson and Lee Terry introduced a video game bill into Congress on Wednesday. The mainstream’s limited understanding of game players and game content drives them to eat this shit up like ice cream on a hot day. Very few national issues are subject to virulent attack without encountering resistance. As you can see from chart I stole from the FTC secret shopper report, the film and music industry have a much higher failure rate, when it comes to preventing sales to minors. And their trendline doe not show the year to year improvement shown by the game business. Because the mainstream public knows more about these industries, they do not support efforts to restrict sales . . . and as Gore and Lieberman learned in 2000, the industries bite back.

Jim Matheson hails from Utah, one of the leading States in anti game legislation efforts. In 2006 Utah’s State house of representatives approved a bill mandating jail time for adults, even parents, who purchase violent games for kids. Of course violence was not defined, but more significantly, the two-week mandatory jail sentence was more severe than the sentence applied to a crack dealer. If an adult sold crack to a minor, they would get probation. If the dealer bundled the crack with Halo, they would go to jail. Ultimately someone came to his senses and the bill was killed in the State Senate.

Lee Terry hails from Nebraska. He has supported important efforts like keeping “under God” in the pledge of allegiance and Abstinence Day on the Hill. I think we know where he’s coming from. I would point out his significant legislative contribution, but he has none.

The press release from the two gentlemen was actually pretty mild, and if you ignore the veracity of the references, it makes sense. According to the release, legislative intervention is necessary because the industry is not able to self regulate.
“Many retailers have tried to develop voluntary policies to make sure mature games do not end up in the hands of young kids, but we need to do more to protect our children. . . .For the rest, this bill sends the signal that putting profits ahead of the well-being of children and the standards of their parents is not acceptable,” said Matheson.

Nothing wrong so far. Maybe these guys are right. The press release supports the premise with some facts.
Matheson said the legislation requires all retailers to check ID from any child trying to buy or rent Mature (M)-rated or Adult-Only (AO) rated games. He said the bill does not prevent a parent from buying any available game, but it does help to ensure that children can only access age appropriate content without parental permission. A 2005 Federal Trade Commission report found that 42 % of unaccompanied 13-16 year-olds in the study were able to purchase “M” rated games from retailers, even though the M-rating is for those 17 and older. . . . Many young children are walking into stores and are able to buy or rent these games without their parents even knowing about it,” said Terry.

Ok, hold it for a second. This is 2008 and he is citing a 2005 report. He is not lying, the information was correct in 2005, but it is not correct in 2008. This week’s FTC secret shopper results showed only 20% of unaccompanied minors were able to purchase games. While still an admittedly high number, it is a dramatic improvement over the numbers reported by representative Matheson and significantly better than DVD enforcement which remains at the 2003 level of 35%. Closer inspection shows number 1 retailer, Gamestop’s failure rate was only 6%. When compared to the 2000 error rate of 85% the improvement is astounding and unparalleled. If he used the recent number, the need for legislation would not be as compelling. If he showed the trend line, there would be no place for legislation at all, so they chose to consciously mislead.

One of the many sad aspects of this attempt is the drowning of their otherwise valid pointing in the giant vat of swill spewing from their mouths.
The MediaWise-Harris Interactive Poll shows that 72% of parents understand little or nothing about video game ratings. This despite a public service announcement campaign by the Entertainment Software Ratings Board (ESRB) and ratings disclaimers in television ads by game makers.



Parents see the ratings on the box, but they don’t know what they mean. It is our job as an industry to get this information out. Explanations are being posted in stores more than ever, but more must be done. However, contrary to the release the “more” does not include legislation.

If the bill matched the release, it would not be so bad. A few deceptive statements, but it looks like they are just providing guidance, helping out a bit. Let’s check the release against the bill :
[4](b) Penalty- Notwithstanding section 5(m) of the Federal Trade Commission Act (15 U.S.C. 45(m)), any person who violates section 2 or 3 of this Act shall be subject to a civil penalty of not more than $5,000 per violation.

Curiously, the release did not mention the penalty. The penalty would be imposed upon anyone who, among other things does not prominently display the ratings explanation or sells or attempts to sell an M rated game to someone under 17. In lawyer speak this is called a content based restriction on First Amendment protected free speech.

Thanks to the efforts of Gail Markels and The ESA, every time a State passed a law restricting video game sales, federal and state courts found video games to constitute First Amendment protected free speech. No court has found otherwise and courts hate to restrict protected speech. The laws will only pass Constitutional scrutiny if the legislators show a clear compelling interest, protected by a narrowly tailored law limiting only the intended speech. Laws hardly ever meet the test and when it looks like one will, the United States Supreme Court will usually test it.

The first argument against the law is the slippery slope argument. “If you are going to start here, where does it stop?” While it is great to use at cocktail parties, and you can’t turn on talk radio without one caller paraphrasing “and then they came for me,” it hardly every carries the day. The world exists on a slippery slope. The bigger concern is the chilling effect. First used in a legal opinion by Justice Brennan in 1965, the term refers to the social impact of penalty bearing legislation. This is the one we must fear. If I am a game retailer and I know I will have to pay $5,000 if I accidentally sell an M rated game to a 16 year old – notice there is no intent requirement in the legislation – I just won’t sell M rated games. If I don’t sell them in the store, I am not going to order them from the publisher, who in turn will not make them any more and the average gamer, who is 33 years old, so shit out of luck. Even though we all love Mario Galaxy, Halo and Call of Duty are good too. Gamers soon get bored of sixth grade level content, and like the comic book industry before it, the game market collapses.

We can’t let people like this take these actions against our industry. We must stop being a target. Facts must be met with facts we finally have them on our side, let’s use them.





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