FTC gathers videogame rating info

Entertainment Merchants Assn. legislative update for September, August

-- Video Business, 10/4/2006

The following summarizes key government affairs activities during September of the Entertainment Merchants Assn. (formerly the Interactive Entertainment Merchants Assn. and the Video Software Dealers Assn.).

• Federal Trade Commission: The Federal Trade Commission is gathering information on retailer rating education and enforcement programs for its upcoming report on the marketing of violent entertainment to children. The report, which will be the sixth since September 2000, is expected to be issued in December.

EMA provided the FTC with information about its “Pledge To Parents” model ratings education and enforcement program and “Entertainment Ratings & Labeling Awareness Month” initiative and various retailer commitments to ratings education and enforcement.

• “Video Game Decency Act”: On Sept. 20, U.S. Representative Fred Upton introduced the “Video Game Decency Act” (H.R. 6120). The bill would make it an “unfair or deceptive” trade practice for a videogame publisher to distribute a video or computer game rated by the Entertainment Software Rating Board if the publisher failed to disclose relevant content of the game to the ESRB with the intent of obtaining a less-restrictive rating.

The bill also would preempt state and local laws regulating videogame ratings or regulating the sale, rental or display of a videogame based on its “constitutionally protected content.” Although this provision seeks to prohibit state legislation attempting to regulate violent videogames, it is unclear whether it would be an effective bar to all such laws.

• Utah Video Game Bill: The Interim Judiciary Committee of the Utah legislature held a hearing on the Utah videogame bill (House Bill 257) on Sept. 20. Although the sponsor of the bill is retiring from the legislature at the end of 2006, he has recruited another member to sponsor the bill next year. The current and future sponsor indicated they would seek to have the bill amended to track the language of the videogame restriction bill enacted in Louisiana earlier this year (which has been preliminarily enjoined).

The committee adjourned without taking action on the measure, but indicated that it may be voted on in October.

• EMA v. Henry (Oklahoma Video Game Law): EMA and the Entertainment Software Assn. renewed the request for a preliminary injunction barring enforcement of the Oklahoma videogame law while the legal challenge to the statute is pending. Absent an injunction by the court, the law will go into effect on Nov. 1.

The Oklahoma videogame law would ban the dissemination to minors of any computer or videogame that contains any depiction of “inappropriate violence.”

• ESA v. Hatch (Minnesota Video Game Law): The state of Minnesota formally filed an appeal of the July federal district court ruling that permanently enjoined enforcement of the Minnesota videogame law. The appeal is in the U.S. Court of Appeals for the Eighth Circuit. All the briefs in the case will have to be filed with the court by early December.

The Minnesota law would have imposed a civil penalty on minors under age of the 17 who rent or purchase videogames rated “M” (“Mature”) or “AO” (“Adults Only”) by the ESRB. The effective date of the act was Aug. 1, 2006.

The following summarizes key government affairs activities during August of the EMA (formerly the IEMA and the VSDA).

• ESA v. Foti (Louisiana Video Game Law): On Aug. 24, U.S. District Judge James J. Brady issued a preliminary injunction against enforcement of the Louisiana videogame law enacted in June. The law would ban the sale to minors of any computer or videogame that contains depictions of violence that meet a three-part test for “offensiveness.”

In blocking the law, Judge Brady stated, “The State’s argument [in defense of the law] overlooks a line of cases holding that videogames are protected free speech... It appears that much of the same evidence has been considered by numerous courts and in each case the connection was found to be tenuous and speculative... The evidence that was submitted to the Legislature in connection with the bill that became the Statute is sparse and could hardly be called in any sense reliable.”

Judge Brady found that “there are less restrictive alternatives which would achieve the State’s goals ... including encouraging awareness of the ESRB videogame rating system.”

Following the judge’s ruling, EMA and ESA filed a motion for summary judgment, requesting that the judge make the injunction permanent.

For procedural reasons, the preliminary injunction is technically effective only in East Baton Rouge Parish. EMA and ESA have requested the judge to extend the injunction statewide.

• ESA v. Blagojevich (Illinois Video Game Law): On Aug. 9, the federal judge who oversaw the successful challenge by EMA and the ESA to the videogame restriction law passed by the state of Illinois in 2005 ordered the state to reimburse the plaintiffs $510,000 for legal fees and costs associated with the case.