As we noted last month, the White House and telecoms pressed for retroactive immunity. This pressure has not worked–at least not yet–despite Bush’s threat of a veto.

Sadly, this amendment was proposed by the bill’s lead authors, Rick Boucher (D-VA) and Mike Pence (R-IN). Boucher is generally one of the few members of Congress who “gets it” when it comes to tech policy. I suspect other members pushed him on this, but the final vote (398 to 21) suggests it may not have been a necessary compromise.

Could there be better proof that politicians do not take the internet seriously? Bloggers investigate and break real news, and some very good ones do it for free. I am skeptical the Senate will force the issue in conference committee.

Dear Rep. Sires,

I am a voter in your district, and I am writing in regards to H.R. 3773, the RESTORE Act. I urge you not to support this legislation unless it meets two key conditions.

First, the bill must not be amended to grant immunity for telecommunications providers who cooperated with the Bush administration’s illegal wiretapping program. Such a grant of immunity will cut important court cases off at the knees before we can learn the full nature of the administration’s spying. In short, you must not reward the administration for their blatant disregard for the law of the land, including the very balanced Foreign Intelligence Surveillance Act, and you must not reward common carriers for their willingness to join in the illegalities. Bush’s threat to veto the legislation without such a grant of immunity only confirms concerns that the law has been broken.

Second, do not approve the bill without all of its current protections for civil liberties. In particular, insist that the bill retain or strengthen the following provisions:

• Section 5, requiring oversight and periodic audits of surveillance activities
• Section 7, requiring the Department of Justice to conduct a timely audit of all warrantless surveillance programs since September 11, 2001
• Section 8, requiring record keeping of all surveillance of United States persons
• Section 10, reiterating FISA as the sole legal justification for the gathering of electronic surveillance

Not incidentally, the Bush administration’s willful disregard for FISA is an impeachable act if ever there was one, but sadly it is not the only one committed in the past seven years. Speaker Pelosi may consider impeachment to be off the table, but I do not, and if you and your colleagues do not stand up for the Constitution, I fear for the future of our democracy.

Sincerely,

Bill D. Herman

The Commission wants end users to be able to use the device of their choosing and the applications of their choosing–what Tim Wu calls “Wireless Carterfone.”

For more on what nonprofits such as Public Knowledge and companies such as (and most visibly) Google were pushing for in the first place, see this PK post from July.

Editorial Page Editor James Vesely has a brief introduction. Yesterday, they ran an opinion piece by FCC Commissioner Michael Copps. Today, it’s Penn Law School luminary Ed Baker.

Today, they also ran a scathing condemnation of the current FCC’s policy.

With laws to restrict the sale of games to minors being struck down repeatedly, it may stand to reason that we’ll be seeing more concerted efforts to regulate the ESRB ratings process instead. This has been proposed through the “Truth in Video Game Rating Act,” proposed in 2006 and again in 2007, which would require complete playthrough of games before assigning ratings, in addition to initiating inquiries into whether the ESRB system should be abandoned entirely. (See another GP report for more information.)

There are some major problems with this proposed approach, but perhaps the most notable right now is that complete playthrough is technically impossible. I have discussed this with some fellow academics recently, including some who believe that this claim is an exaggeration. I thought it might be useful, then, to illustrate exactly what I mean.

There are two major ways to interpret the concept of playing a game in its entirety:

1. Play until the primary goal defined by the developers has been achieved once as efficiently as possible, a.k.a. “beat the game.”
2. Play every conceivable scenario built into the game by the developers, including completion of primary goal(s) in multiple modes of difficulty and playing through all hidden and optional content.

The Truth in Video Game Rating Act doesn’t specify what it means by insisting that games be played through, but each of these possibilities presents major obstacles. In the first case, not all games can reasonably be “beaten”: Some games have no predetermined ending, like The Sims; others may be especially difficult, such as Pac-man, whose 256th level remains out of reach for the vast majority of hardcore gamers.

The second case is where the “technically impossible” claim comes in. Quite literally, there is no way to play a game “completely” or “in its entirety” when an infinite number of possibilities are open to the player. People find out about easter eggs and cheat codes through insider information or actively hacking a game’s code, not by searching every nook and cranny of the in-game world. No amount of random guessing would reveal to players of Nintendo’s 1987 Contra that a series of button-presses executed during the title screen would yield extra lives. And, to consider a more recent example from an M-rated game, no amount of random wandering would guarantee that you would unlock the easter egg that spells “NOW I AM BECOME DEATH — THE DESTROYER OF WORLDS” across the sky. (Search for “now I am become death” at this walkthrough to see the process that yields this message.)

In other words, I am definitely not resorting to hyperbole when I say that it’s literally impossible to expect anyone—the ESRB, a private rating corporation, the government, an expert player, or anyone else—to play a game in its entirety. This has everything to do with the way video games function as a medium, which simply cannot be equated to the way that other visual media function. Moreover, I haven’t even touched upon other facts that make content rating and regulation particularly problematic for games, such as that players sometimes design modifications for games and that some games feature procedurally generated content.

We will probably see more attempts to regulate the sale of games to minors before voters respond poorly to seeing their money spent in expensive and unsuccessful appeals processes. If legislators give more consideration to ways of affecting the ratings process directly, however, the results could be even more complex and problematic, as such bills do not have the same sort of legal precedents acting against them that the sales restriction bills have.

Lessig blames the 2005 Grokster decision for inviting Viacom’s lawsuit of YouTube. The Supremes overstepped their bounds, usurping Congressional authority to damn new technologies, heightening the risk for innovators and reducing our overall tech productivity, he argues. It’s even more irresponsible as Congress was already considering the INDUCE Act, which was similar to the case law set out in Grokster.

I agree with the effects, and I also agree Grokster had an important relationship with INDUCE. However, one expert I know explained that, were the push behind INDUCE sincere, it was totally incompetent. Rather, it was more likely a hypothetical threat, leverage to force the Supremes’ hands.

Congress is a far friendlier venue for copyright holders than are the courts. Thus, the Supremes might have been scared to apply Sony and refuse to impugn the P2P operators. That would have better upheld the previous precedent; Sony explicitly invited infringing uses of the VCR in its early ads, and all P2P networks were and are used for noninfringing purposes.

Nobody who could do so would ever confirm this, but I’ve long suspected the Grokster decision was motivated at least in part by the fear that we might have gotten something far worse. Which says something about the state of copyright politics.

The case, Doe v. Bates (pdf), involves a man who moderated a Yahoo! group that traded in the illegal content. In addition to going after the moderator, (Mark Bates, who is already in prison for his behavior), the plaintiff went after Yahoo! with allegations such as conspiracy and negligence.

District Judge David Folsom shot back with 47 USC § 230, which explicitly states:

(c)(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The amount of content that goes through the email server at my school in one day is staggering, despite serving just a few hundred employees and grad students. It’s impractical to hold ISPs legally liable for the content posted by others, so the law states clearly that they’re not publishers.

This matters in the net neutrality debate. Some have tried to claim that net neutrality is a violation of ISPs’ First Amendment rights. As neutrality opponent Christopher Yoo claims, “Mandating content nondiscrimination would represent an ill-advised interference with the exercise of editorial discretion that is playing an increasingly important role on the Internet”(p. 1905).

It only seems fair that the legal right of editorial discretion would have to come with its responsibilities, which ISPs don’t want. They want the ability to stop any content they choose for any reason, financial or otherwise, but to have no liability whatsoever for the content they permit.

Newspapers have the rights and responsibilities of editors, as do TV stations, book publishers, and website publishers. They can cut or keep anything they want, but if it’s illegal, they’re responsible.

If you’re an editor, you’re legally responsible for the content. Hence, modus tolens, if you’re not legally responsible for the content, you’re not an editor. In other words, Comcast’s First Amendment claim over the content coming into your home is pure bunk. They aren’t really editors and never wanted to be.

The games left among the finalists included some fun-looking stuff, but none offered an implicit or explicit political statement like SCMRPG! Since the game was dropped, several other finalists and one sponsor have withdrawn from the event, and some remaining finalists have drafted a letter of protest urging Slamdance to readmit the game.

The question among newcomers to this issue, I imagine, is why one would support a game about the Columbine High School tragedy. Aside from the obvious rhetoric about defending the free speech even of those with whom we disagree, several prominent game critics have made a good case that the game is not what it sounds like. Game designer and founder of Manifesto Games, an online indie games distribution service, has made an about-face on his earlier decision not to host the game, and has written a detailed piece on why the game has merit. An interview with the game’s creator suggests that the game is actually supposed to cause unease, to make players question the conventional mechanics of violent game play in general. Plus, this is no graphic shoot-em-up: it is more like the old Final Fantasy role-playing games on the 8-bit Nintendo, with simple graphics, repetitive tasks, and slow combat sequences built on selecting options from menus rather than fast-paced button mashing.

Slamdance founder Peter Baxter has said that it was a “personal decision” to drop the game, though there has been some speculation that this comes at the urging of one or more sponsors. Game designer Ian Bogost has been following and commenting on the story. Slamdance recently changed its web site to offer an expanded official statement on dropping the game. (I link to Kotaku rather than Slamdance’s statement itself in case the festival’s page changes again.) The long and the short of it is that the organizers are afraid that displaying the game publicly would open them up to a law suit so costly that they’d be forced to shut down the entire festival forever.

My courtroom knowledge pretty much just extends to statutory law for academic papers, some discussion of IP law from conversations around the office with Bill, and the bare minimum knowledge of criminal law required to watch reruns of Law and Order. I can’t really say how likely Slamdance would be to get sued here, so I’m not sure how to evaluate this new statement.

On the one hand, Slamdance shows plenty of movies that are more graphic and potentially offensive than this game. I’m not sure what complaint you could possibly bring forth about going to a festival of this kind and being shocked and disturbed by, of all things, a relatively primitive-looking game.

On the other hand, people like to sue when it comes to media they don’t understand. Video games have been at the center of not just unconstitutional legislation, but also a number of civil suits alleging that games made kids commit crimes, came packaged with inappropriate and unrated hidden content, and so on. If someone were to sue Slamdance, I’m inclined to believe it would not go far, and at worst Slamdance would win in appeals, but perhaps that could be enough to shut down a small outfit.

The comic book community—not the industry per se, mind you—has a sort of solution to address issues like this. It is a First Amendmen watchdog group called the Comic Book Legal Defense Fund. The CBLDF has defended at least one retailer charged with distributing obscene material to minors (who sold a Japanese “tentacle-porn” comic to an undercover cop, not to any kids), at least two cartoonist charged with trademark infringement (one who made a parody of the Starbucks logo and another who went by the name “King Velveeda”), and famously, the first artist convicted of obscenity in the U.S., Mike Diana. The CBLDF has a decent track record for picking up worthwhile cases, though a somewhat less impressive record for winning them. Its fundraising efforts are supported by fans and industry pros alike. It’s the kind of service that would only be needed for a medium that comes under unusually high scrutiny because of its associations with childhood, and its funding model could only work in an industry with such a hardcore fan base, built at least in part around feelings of marginalization.

The video game community, then, could potentially support such an endeavor. It’s got to be larger than comic book fandom by now, I imagine, and the need is clearly there. The Video Game Voters Network was formed in response to higher-profile legislative efforts, but civil suits may be just as numerous. Slamdance’s most recent explanation could just be a cheap cop-out, but the possibility of litigation may be valid. Perhaps the courtroom front seems covered well enough by the ESA, which challenges the unconstitutional game regulation laws as they are passed (and is also the major sponsor of the Video Game Voters Network). The ESA, however, only fights the battles that directly affect its affiliated companies, and amateur developers posting games to the internet are left to fend for themselves. It would be interesting and a little touching, I think, to see gamers and game developers come together to form a Video Game Legal Defense fund, but for the foreseeable future, it looks like Slamdance would be on its own if anything were to come of a public demonstration of SCMRPG!

It’s hard to say how the Slamdance situation will play out at this point. If the organizers’ fear of litigation is genuine, the competition may just continue on its dreadful course at this point. Slamdance is also hosting a panel about SCMRPG! which may be accepted as something of a compromise. If this new response appeases no one, perhaps the game will be readmitted (probably without legal incident), but it looks like Slamdance may have gone too far to turn around now. Either way, this may mark the final year of the painfully ironically named “Guerilla Gamemaker Competition.” (Or perhaps it’s just ironically conceived—the gamemakers themselves have certainly demonstrated their independent spirit and political mettle.)

I find it hard to believe that events would have transpired this way if the product in question had been an independent film. Not to say that film has exhausted its avant-garde, political potential, but this whole incident helps illustrate what an interesting position video games currently occupy in our culture. This medium is balanced between being established enough to provoke such reasoned response and principled action from people committed to the form’s artistic potential, and marginalized enough to keep businesspeople skittish and judges busy. I find Slamdance’s response disappointing, but the press for SCMRPG! and its supporters seems pretty positive. Having never played the game in question, I can’t say if it’s any good in itself. Perhaps the lesson to take away from all this, however, is that if you really want to make some ripples with your art, it may be a good time to be a game designer.

Why do I call this legislation “doomed”? Well, it has all been repeatedly deemed unconstitutional in court, and even the people charged with defending it know it won’t pass. Jack Thompson has also drafted bills for Louisiana and Utah; Lousiana put forth no defense when the bill was challenged in court, and Utah’s Attorney General has recently stated that it’s pretty clear the bill he would end up defending can’t actually stand as law.

According to my records, more than half the states in the country (30 plus the District of Columbia) have proposed some sort of bill regulating the sale of console and computer game sale and rental. Six of these states have passed laws restricting the sale and rental of video games based (at least in part) on violent content. Last I checked, California’s was still in court, and the rest had been overturned. For a pretty good overview of what’s been proposed, take a look at MediaLegislation.org. (We differ somewhat in our political orientations on this matter, but the site and its owners have been very helpful in compiling my own records.) In each case that such a law has been overturned, the defendants (i.e., taxpayers) have had to pay hundreds of thousands of dollars in legal fees to the Entertainment Software Association.

Legal experts seem to agree that there are two ways to potentially restrict minors’ access to violent games, but as of yet, neither of these approaches has been successful. At the rate legislators are going, neither approach will be successful before some other new medium comes along to induce a new moral panic. Here, I’ll explain what’s not working with each approach.

Violence as Obscenity

The bills Thompson has drafted attempt to include violent content in each state’s already-written laws on obscenity, and this has repeatedly proven insufficient to stand up in court. This approach would essentially classify video games as the violent equivalent of pornography, restricting the sale of certain violent games to minors. For examples of how such laws are worded, compare Utah’s current law on obscenity with the proposed amendment.

As Judge Kennelly noted in his statement overturning a video game sales restriction law in Illinois, violent content has never been included in the definition of obscenity because it has been used for expressive purposes throughout the history of narrative; and, while pornographic content is specifically designed to sexually titillate, violent content does not aim to encourage real acts of violence. Lower standards for regulating non-obscene materials have been approved only in the case of broadcast media because of their “uniquely pervasive” quality. The judge who overturned Washington’s video game law even agreed that some violent games qualify as “filth” in his eyes, though fail to meet the legal definition of obscenity as applied to sexual content (Video Software Ass’n v. Norm Maleng, 2005, p. 5). Mind you, some states have succeeded in amending their laws on sexually obscene material to cover sexually obscene games, so long as they don’t mention violence.

Preventing the Effects of Violent Content

Not all bills attempt (or only attempt) to classify violent content as obscenity. Some take another approach, or even write both rationales into one bill. This other approach is to claim that the state has a compelling interest to protect minors from some negative effect. To be constitutional, the legislature must demonstrate (a) that the games are certainly having some ill effect on children, (b) that regulating the sale of such games will prevent that effect from occurring, and (c) that this regulation will not hinder adults’ access to such games. At present, this approach is practically impossible on all levels.

To satisfy the first condition, legislators would have to demonstrate that research on the effects of violent games confidently demonstrates that such games cause children to act violently or become emotionally disturbed. That may be difficult enough to demonstrate, considering that the bills as proposed restrict sale for minors more generally, while the effects in question may be quite different for small children versus teenagers. Even if researchers were in agreement that the effects were predominantly negative—and they are certainly not so unified in their opinion—there would still be significant disagreement about what those effects mean. Is honking an air horn at your opponent for a few extra milliseconds an appropriate measure of intent to commit violence, or a measure of something else entirely? The “aggression” encouraged by playing games might not necessarily be a bad thing. A member of the Quake Grrlz movement (as quoted by Henry Jenkins in his Senate testimony) once suggested, “Maybe it’s a problem…that little girls DON’T like to play games that slaughter entire planets. Maybe that’s why we are still underpaid, still struggling, still fighting for our rights. Maybe if we had the mettle to take on an entire planet, we could fight some of the smaller battles we face everyday.” These are only a few of the many issues complicating the interpretation of violent games research.

To satisfy the second condition, legislators would have to make a case that the law as written would actually prevent the negative effects on children. This, too, seems unlikely, considering that an FTC report (2000) found that the majority of violent game purchases were made by or in the presence of adults, and that the music and movie industries were even worse about selling adult-rated material to minors. Kennelly’s aforementioned statement notes, “the underinclusiveness of this statute—given that violent images appear more accessible to unaccompanied minors in other media—indicates that regulating violent video games is not really intended to serve the proffered purpose” (p. 39). If parents are going to buy these games for kids anyway, the law wouldn’t actually do what it is ostensibly designed to do.

As for the third condition noted above, even the most seemingly specific bills are so broad as to have a negative impact on what material is even created in the first place. If game publishers are too nervous about whether WalMart would carry their violent games, that hurts the chances of those games even being, which potentially restricting adult access. A recently-proposed bill in New York, for example, attempts to restrict games depicting hate violence based on race or religion. If this bill targeted movies, movies like American History X would have basically been stigmatized as “rated X.” As a hypothetical example, consider that this bill would restrict the sale of a game about the Crusades, even one developed that attempts to make the player question history and the purpose of violence. Many bills attempt to restrict the sale of games depicting violence against humans or human-like characters, but where do you draw the line in a medium with so much fantasy and science-fiction content? Some of the goriest games include killing zombies—do those count as “humans,” or are they exempt because they’re already dead?

Conclusion

Overall, the legislative attempts to regulate violent games have been marked by ignorance of how games actually work and disregard for existing legal precedent. No distinction has been made in any bill between committing acts of violence as the player or simply depicting acts of violence as you might in a movie. Future legislation may take such distinctions into account, but that would require that lawmakers educate themselves more extensively on what video games are actually like, and not just the scary tidbits that make it to the news.

As of the end of 2005 (when I last traced who was proposing which bills), most of these bills had been proposed or predominantly championed by Democrats, presumably looking to secure certain voters. It’s interesting to note that some politicians have more recently changed their tune on this debate. Hillary Clinton and Joe Lieberman, for example, went from proposing federal-level legislation to cooperating with the video game industry’s ratings body for an awareness campaign.

My take on this move is that the politically savvy will find other ways to capitalize on the video game violence issue, and the rest will keep on wasting our money until something scarier comes along. Consider checking out MediaLegislation.org’s and Game Politics’ legislation tracking pages to see what your state has been up to lately.