June 3rd, 2010
This fall, the U.S. Supreme Court will once again hear the latest case (California's Schwarzenegger v. EMA) challenging the protected free speech status of video games. Like movies, music, books and other media, video games are currently protected under the First Amendment. But that could all change, says the Entertainment Consumers Association, given the interactive nature of the medium. Unless, of course, consumers help the industry protect the medium. Here's what you should know before the votes are cast:
Alienware Arena: What's so important about Schwarzenegger v. EMA?
Jason Andersen (director of public relations, ECA): While no case before the Supreme Court is simple, and this one is no exception, there are generally major themes under which the Court reviews a case. Here, the Supreme Court will basically be reviewing whether video games are to be protected as free speech under the First Amendment just like movies, music, books, comic books, magazines and other media art forms are. To be blunt, that’s important; it’s important to us and it’s important to you. It will affect how we do what we do in the industry, for publishers, for anyone working even tangentially for the industry, for retailers, and for consumers – all consumers of all ages,
The law in question makes the act of selling violent video games to minors a fine-able offense. It doesn’t rely on the current ESRB rating system to determine if a game is violent or not, but requires that the manufacturer itself label if a game meets the law's definition of being a violent video game or not; the definitions of violent are overly broad and confusing. The lower courts found that video games are protected; we hope the Supreme Court agrees.
What could happen if the court disagrees? Would it get kicked back to California? Will nationwide gamers be immediately impacted?
The bill’s sponsor, Senator Leland Yee, has vowed to create another piece of legislation, should this one not pass muster. His stance, generally, is that games should be treated differently from music and movies and all other forms of art and entertainment, because of the interactive nature of the medium. So he’d take what their legal team will learn from this case and try to apply it to a hypothetical next bill. Localities and states across the nation would do similarly. Every year there are approximately 30 such bills now, so should Yee’s position pass at the Supreme Court, we can anticipate as many, or more bills, of increasingly draconian regulations. But I’d think that the negative PR he would receive from wasting even more of the State of California’s much-needed funding would be a deterrent at that point.
Calling this case "the single most important moment for gamers in history" is pretty bold. Surely other topics and Mortal Kombat cases were equally pivotal, no?
The hearings on Capitol Hill regarding Mortal Kombat were the impetus for the creation – and eventual success – of the industry’s trade association and the Entertainment Software Ratings Board (ESRB). In the documentary, “Moral Kombat,” Senator Joe Lieberman stated that if the game publishers had not self-regulated and taken the subsequent steps, he and the other politicians who participated would have imposed regulation. So yes, that was a very important moment for us all. But a negative turn-out in this U.S. Supreme Court case could have negative consequences that span further than I’d like to consider. In short, losing would likely open the floodgates for more regulation, more legislation and – perhaps most importantly – remove games from being identified as digital entertainment and art, like music and movies, and instead have them viewed as harmful and dangerous substances like alcohol and tobacco, or even more stringently than firearms, which are protected under the Second Amendment. The ripple effects of losing could be staggering for us all.
What's an "amicus brief" and what will yours state this summer?
An amicus brief is a “friend of the court” document that, along with the petition, will be submitted by the ECA as official court documents for the hearing and will serve as a collective voice of game consumers. It essentially positions and frames the debate from our perspective, leveraging research and highlighting important facts and legal precedent that support our arguments. We are beginning work on the brief now and we will share the details after it has been submitted later this summer.
How many petitions have been signed so far?
We’re not releasing official numbers at this time, but the support has been very encouraging and is still going strong. We are also working with game publishing companies and development studios in urging them to help us get the word out to their family, friends, fans and consumers. The more support we get from the industry, the more successful the petition. In the next few months leading up to the submission, we will continue to build awareness for the petition and share the latest news and information with those who have already signed on.
Obviously you hope for as many signed petitions as possible, but what minimum number would send a compelling statement to the court?
We don’t have a specific goal in mind in terms of the number of sign-ups. Our plan is to continue to grow the list of signatories by reaching out to media outlets and partners, as well as publishers, developers, consumers, and anyone else who is associated with the video game industry, and even beyond the industry quite frankly. There’s a lot at stake here, and we can’t stress enough how important this ruling is and how vital it is for people to be aware and take action. The trade’s participation is really crucial here in that they have access to their customers (gamers) and can help drive awareness and the number of signatories. After years of asking gamers to help defend the art form, consumers have – and in a very meaningful and important way. I would be shocked if the major publishers, in particular, turned their backs on gamers. My sense is that they understand that this petition can’t fail, or even be perceived as unsuccessful, as it would be detrimental to us all.
For those who don't know, what exactly does ECA do? Why does it exist? Who started it?
The Entertainment Consumers Association (ECA) is a non-profit advocacy group that represents consumers of interactive entertainment. The organization was formed in 2006 by Hal Halpin, the former head of the retail trade association that represented all of the major merchants in the space. The ECA was created in response to a variety of anti-games and anti-gamer legislation and to ensure that game consumers were represented, which they hadn’t been before. We also handle advocacy efforts on a number of other issue areas important to gamers and gaming such as Net Neutrality, Universal Broadband, Digital Rights, DRM and EULA Disclosure, Taxation, and various First Amendment rights. The association is a membership organization and, similar to AAA and AARP, offers a variety of discounts on purchases and provides members substantial affinity benefits with additional educational and community resources. Membership dues fund the org and are pretty reasonable at just $19.99 a year ($14.99 for students and military). But membership isn’t required to sign the petition. Any American gamer, of any age, can participate free of charge. Just go to http://www.GamerPetition.org
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