ESA’s Legal Counsel Breaks Down Gaming Regulation

During his DICE presentation, Ken Doroshow, the Electronic Software Association’s senior vice president and general counsel, took the opportunity to talk about some of the legal challenges facing some of the gaming industry. In addition to obvious problems such as the courtroom battles focused on violent video games, he discussed some of the other issues developers and publishers should know about. He gave the caveat that he’s a bit of a “legal nerd,” and that some of his presentation might get a bit dry, but that the information was important nonetheless.

The ESA has been involved in 10 regulatory cases nationwide, and Doroshow was happy to report that the industry has won in each case. Laws restricting the content of speech and free expression (the banner in which video games fall under in courts) require an exceptionally high burden from would-be regulators to enforce. The argument that games incite violence require regulators to prove that there is an immediate threat of lawless action, which has never been met. The lack of a proven causal relationship between games and violence has also helped the ESA’s case. The ESRB’s rating system has also been a persuasive buffer from legal restrictions, since parents have easy access to tools that would help them protect their children from content they deem inappropriate.

Another issue centers on obscenity, and whether or not so-called violent video games can be restricted based on their content. Some argue that because gaming violence can be so over the top that they border on obscenity or that video games exist in an area that puts them outside the realm of protected speech. A case based on that argument is pending in California. In a seemingly unrelated case before the U.S. Supreme Court, the issue of whether simulated acts of violence against animals are outside the realm of protected speech is being considered. A filmmaker who has created films that simulate fights between pitbulls has been prosecuted and convicted for cruelty to animals, and the Supreme Court may consider the validity of the law. The ESA is following the case, because, as you might imagine, restrictions on simulated violence could be expanded to include games at some point.

A case between the Chicago Transit Authority and the ESA is based on the hypocrisy of not allowing M rated game advertisements on buses while allowing ads for R rated films. So far, the court seems to be agreeing with the ESA.

Doroshow ended his speech with an eye toward other recent legislation, such as a Utah bill that would have made it a deceptive trade practice to sell “goods or service in contravention of age restriction,” which was presumably drafted to specifically target games. In Rhode Island, a bill was introduced last week that would criminalize the sale of M rated games to minors. Doroshow pointed out that games have ultimately been battling efforts to make the expression in games somehow less entitled as other forms of protected media. Despite a 10-0 record, it seems as though this is an issue that the ESA will continue to face in years to come.