Federal Anti-Game Legislation: Your Tax Dollars at Work

In a rather unsurprising turn of events, Hillary Clinton and Joseph Lieberman have just announced new legislation to help keep kids safe from those awful video games. Well, mostly from GTA it seems, as the press release explicitly mentions Rockstar and GTA repeatedly. To put it simply, The Family Entertainment Protection Act seeks to put the force of law behind the ESRB’s voluntary ratings system. In doing so, the new bill would avoid some of the constitutionally problematic areas of recent laws in California, Illinois, and Michigan which essentially allow for government censorship by attempting to legally define levels of acceptable content. However, by giving the ESRB “teeth”, as it were, the bill is not unlike laws in Indiana and Washington which were struck down by federal judges as being unconstitutional for doing just that. It seems that for some reason or another, the Founding Fathers didn’t much care for the idea of giving private, corporate entities such as the ESRB jurisdiction to decide what is and isn’t legal.

While the press release and its proposed bill highlight a number of topics and logistical details, the real core element of it is as follows:

The centerpiece of this bill is a prohibition against any business for selling or renting a Mature, Adults-Only, or Ratings Pending game to a person who is younger than seventeen. This provision is not aimed at punishing retailers who act in good faith to enforce the Entertainment Software Ratings Board (ESRB) system. That’s why retailers would have an affirmative defense if they were shown an identification they believed to be valid or have a system in place to display and enforce the ESRB system. Similar prohibitions have become law in the last several months in California, Michigan, and Illinois.

The first thing that really grabbed my attention there was the inclusion of games with a Rating Pending status, which I initially assumed meant any game which hasn’t been rated yet. Being rather worried that this could apply to independent games (OSS, homebrew, etc..) or perhaps even mods, I took it upon myself to call Senator Clinton’s office for clarification. The representative who took my call informed me that there are no provisions in the bill dealing with games which aren’t rated by the ESRB. Nor are there any provisions to “force” developers to submit their games for rating. Naturally, most retailers won’t touch a game that doesn’t have an ESRB rating, but it’s still good news for independent developers who cannot afford the $2,500USD submission fee for a rating and are afraid this new law could affect them. In other words, if you want to make your very own “Killographic” “Murder Simulator” and sell/give it away without checking ID’s, you’re good to go. With that in mind, I followed up with a nice pointy question.

illspirit: So this means Rockstar could make an end-run around the law just by skipping the ESRB, and selling GTA to kids on their website or wherever?

Clinton rep: *brief pause, faint sound of papers shuffling* Well, yes.

Yep, that’s right, Rockstar could get around the anti-GTA law simply by not submitting their games for rating. Granted, they’d be blacklisted from Wal Mart and such, but I hear there’s some crazy new business model called digital distribution which doesn’t require brick-and-mortar stores. Between ever-increasing broadband penetration and services such as Steam or the Xbox Live Marketplace, retail shelf-space- and this new law covering it -could soon become obsolete. Should this law somehow survive the floor vote, Presidential signing/veto, and court challenge gauntlet, it might be just the thing the industry needs to push it forward.

(Note, we’re not implying that Rockstar would intentionally sell games to kids. Just pointing out the big gaping hole in the law. And the route any developer might be forced to take should large retailers find it too risky to continue selling M rated games…)