[Heavy Ink] and any other party associated with the Comic Book does not have Ms. Munn’s permission to use or exploit her image and/or name in any manner whatsoever.  On behalf of our client we demand that you immediately cease and desist all further production, advertising, distribution and other exploitation of the Comic Book, remove all advertisements, and destroy all copies of the Comic Book.

In response, Heavy Ink President Travis Corcoran sent the following, excerpted in part:

[I]t is clear that [Olivia Munn] is a public figure. As a public figure, the use of her likeness meets the tests for the parody copyright exception set forth in both Campbell v. Acuff-Rose Music, Inc. and the more recent Suntrust v. Houghton Mifflin.

As such, we have no intention of taking down our webpage, destroying any inventory, or refusing to offer the comic for sale.

The full response can be found here.

After briefly reading these materials, a few things seem screwy.  First, it is odd that Munn’s attorneys addressed their letter to Heavy Ink’s “DMCA Agent” when they are asserting her exclusive right of publicity, not making a copyright claim.  The DMCA, as far as I can recall, is solely concerned with copyright law and does not contain any provisions regarding the right of publicity.

Second, Heavy Ink’s response is misguided because the parody exception to copyright does not apply to the right of publicity.  There is a parody exception to the right of publicity, but the cases cited by Mr. Corcoran do not apply.  It is impossible to determine whether the parody exception would apply to an unreleased comic, but the product description may provide some guidance:

Olivia Munn conquers the world in this hilarious spoof! Hollywood’s hottest geek girl, Olivia Munn, hosts G4′s Attack of the Show, but while at comic con, she is attacked by a swarm of fans. Unable to escape, her gamma-irradiated cells explode and unleash the fury of The 50-Foot Womunn. It’s the showdown of the century! Geeks vs Munn! Let’s get ready to rumble!!

Based on this brief description, it doesn’t appear that the parody exception will apply, as the comic seems to merely grant Munn superpowers and place her in a ridiculous scenario.  The comic does not appear to offer any sort of commentary or criticism regarding Munn, which is a necessary component of parody.

While there are many issues to consider, including First Amendment arguments, Heavy Ink was right to direct Munn’s complaints to the publisher.  As a mere retailer, it seems odd that Heavy Ink is the one being targeted.

Well, like nearly everything involving the laws of war (great name for a sister site), the answer is complicated.  You see, an agreement signed at the Hague Peace Conference in 1899 states:

The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions.

As a result of this provision, most Americans believe that the United States is barred from using hollow or soft point ammunition in the current war on terror–the main subject of Modern Warfare 2.  However, this notion is mistaken for several reasons.  First, most people fail to take into account the full text of the Hague Convention’s 1899 agreement, which states:

The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions.

The present Declaration is only binding for the Contracting Powers in the case of a war between two or more of them.

It shall cease to be binding from the time when, in a war between the Contracting Parties, one of the belligerents is joined by a non-Contracting Power.

When considering the full text of the agreement, the main problem becomes readily apparent: The terrorist organizations being engaged in the Modern Warfare series are not Contracting Parties and, therefore, this particular provision is inapplicable.  Second, the United States never officially ratified the 1899 agreement and, instead, signed on to the 1907 Hague Convention, which states:

In addition to the prohibitions provided by special Conventions, it is especially forbidden -

To employ arms, projectiles, or material calculated to cause unnecessary suffering;

In most cases, this provision has prevented the U.S. from employing expandable ammunition.  However, a 1985 opinion penned by W. Hays Parks, then Chief of the JAG’s International Law Branch, stated:

…expanding point ammunition is legally permissible in counterterrorist operations not involving the engagement of the armed forces of another State.

So, as far as Modern Warfare is concerned, this seems to be where the law stands.  Because the units involved in the game are engaged in counter-terrorist operations and not against the armed forces of another State, hollow and soft point ammunition is legally permissible.  Who ever said first person shooters aren’t learning tools?

As an additional note, I came across a very interesting study during my research.  Two Swiss organizations, Pro Juventute and Track Impunity Always (TRIAL), conducted a study to “raise public awareness among developers and publishers of [video] games, as well as among authorities, educators and the media about virtually committed crimes in computer and videogames.”  The study focused on identifying violations of international human rights law in nineteen games, including 24: The Game, Army of Two, Battlefield Bad Company, Call of Duty: Modern Warfare, Call of Duty: World at War, Far Cry 2, Metal Gear Solid 4, and Tom Clancy’s Rainbow 6 Vegas.

Violations included destruction of civilian property, torture (inevitable when Jack Bauer is involved), pillaging, and the use of cluster bombs.  While most games contained one or more violations, the study also showed that some titles–Modern Warfare and Rainbow 6 Vegas–actually impose limitations on players that require them to follow international human rights law.  You can read the full study, titled Playing by the Rule, here.

Spy Games (Privacy)
Not long ago, games existed in a sphere of their own. Whether on a disc or in a cartridge, games were self-contained experiences that never ventured outside the television or computer screen. Today, it’s nearly impossible to find a game that doesn’t incorporate some form of user account. Whether it’s Xbox Live, Steam, OpenFeint, or games built on social networking platforms, today’s games are hopelessly intertwined with our social lives.

Unfortunately, the more tangled games become with social networks, the more opportunities arise for developers to obtain consumers’ personal data.  Often times the data collected is completely innocuous and can even improve the performance of future applications, such as aggregate data regarding the configuration of gaming PCs.  However, with modern games obtaining access to photo galleries, friends lists, and sometimes even financial data, the risks associated with improperly kept data drastically increase.  While it is unlikely that any of this data will be abused by game developers (save for potentially undesired targeted advertising), it is possible that some developers may not secure access to this data as carefully as they should.

There has not yet been a significant breach of consumer data stored by a gaming company, but the likelihood of an incident occurring continues to increase as DRM schemes and online games collect more data on gamers.  Information privacy is an area of law that is still testing its boundaries and I wouldn’t be surprised to see online gaming targeted by legislators and scholars in the near future.

Digital Gold Rush (Rights to Virtual Goods)
Modern games have not only increased access to consumer information, but have also increased their reliance on user-generated content.  From the emergent narratives of MMOs to entirely new games built on existing engines, developers are relying on user-generated content to extend the life of their products.  However, in many cases, it is still unclear who owns the intellectual property rights to this creative content.

The legal landscape in this area is exceptionally tricky.  While there has been some guidance regarding map packs, the complex legal issues surrounding machinima, emergent narratives, and game modifications are ready for some long-overdue clarity.  While some developers are modification-friendly, others strongly discourage the practice.  Perhaps most confusingly, some developers enforce their Terms of Use agreements to promote or discourage user-generated content in a seemingly arbitrary manner.

While many issues related to virtual goods can be handled with existing contract and copyright law, the industry is at a point now where both gamers and developers could greatly benefit from clear, standardized EULA and TOS provisions.

Balkanizing the Internet (Net Neutrality)
Net neutrality is a hot topic with just about everyone these days, but gamers have taken particular notice for good reason: An estimated 65 million online gamers could be drastically affected by future regulation.  Interestingly, there are gamers on both sides of the net neutrality argument.

Pro-neutrality gamers argue that without net neutrality, ISPs will be free to charge gamers additional fees to play games online or even block access to some games and online services altogether.  The most commonly cited example is Comcast’s prior practice of throttling bittorrent bandwidth, which prompted a cease and desist order from the FCC.  Additionally, some developers in favor of net neutrality argue that it is the only way to ensure that ISPs do not bargain for gaming exclusivity deals, which were common on mobile networks prior to the iPhone and are currently seen on game consoles.

Gamers against net neutrality argue that excessive government regulation of ISPs will decrease competition and innovation, which could be more harmful for online gamers in the long run.  Furthermore, these gamers argue that latency (and not bandwidth) is the major concern for online gamers and ISPs have little incentive to throttle online gaming services when services like bittorrent are a much larger burden on networks.  In fact, limiting bittorrent traffic could even increase the performance of online gaming.

Aside from gamers, some developers argue that ISPs will be better equipped to reduce or eliminate piracy with no or limited FCC interference.  By monitoring network traffic, ISPs would be able to stop the illegal transfer of games.  In theory, reducing losses due to theft would enable developers to charge a lower price for games–a benefit for both developers and gamers.

Ultimately, there are valid arguments for gamers on both sides of the debate and it will be interesting to see what the future holds.

The Digital Seven Seas (Piracy)
Piracy is a perennial issue that concerns nearly all digital media producers.  Although recent litigation has delivered serious blows to some of the worst offenders (The Pirate Bay), the illegal transfer of games still occurs regularly on bittorrent, peer to peer networks, and usenet.  As the cat-and-mouse game between developers and pirates continues, gamers will be forced to deal with increasingly complex DRM schemes, more tightly controlled gaming platforms, and potential deep packet inspection.

The online trade of grey market games is also increasing at a staggering rate.  While many of these transactions are carried out successfully, others have caused serious headaches for gamers and developers.  For a better understanding of the grey market game trade, read this prior Laws of Play post.

Ballet Hero (Choreographic Works)
It is no secret that both Sony and Microsoft are eager to introduce products that compete with the family-friendly Nintendo Wii. While Sony and Microsoft’s console offerings are targeted at the traditional gamer, Nintendo tapped into a much larger market by eliminating the largest barrier to entry for most would-be gamers: the controller.  Eager to keep up, Microsoft has announced Project Natal, an interactive body-tracking device for the Xbox 360, and Sony has announced some sort of odd motion-tracking-wand-thing.

In what may be the oddest prediction of this post, it is feasible that gamers and developers may have to begin considering copyrights in choreographic works.  Soon, game developers wanting to produce dancing or wrestling games–among others–may have to consider licensing choreographic works.  Could Ballet Hero be the next big hit?  How about a Macarena-inspired party game?  Perhaps a new dance craze will sweep the nation based on a series of moves found in Nintendo’s Wii Dance.

It’s too soon to tell whether games featuring choreographic works will gain traction, but developers may have an all new class of works to both license and protect.

Traditionally, grey markets were uncommon because they were limited to goods that had substantially lower prices in foreign market segments as well as low importation costs.  This is because the importation of grey market goods into the United States can become so costly that grey market distributors cannot sell at a substantial discount, thereby eliminating any incentives to engage in grey market activity.  In the case of computer software, dealing with high importation costs is no longer an issue.

With the rising popularity of digital distribution, grey market software can now be sold over the Internet in a matter of seconds with nearly zero overhead.  Grey market distributors purchase bulk licenses for Asian-region software at a substantial discount and then resell these licenses to Western gamers for prices much lower than retail.  This is exactly what happened with Activision’s latest hit, Call of Duty: Modern Warfare 2.

After a few days of play, the purchasers of grey market licenses are now being banned from accessing Valve’s servers in order to play the game online.  Valve’s official line is that anyone who purchased only a CD key transacted with an illegitimate seller and he or she will need to purchase a valid license through Steam or a brick and mortar retailer.  Gamers, to say the very least, are not pleased.  Their anger seems to be directed at anyone who had any involvement with Modern Warfare 2–be it Valve, Activision, or Infinity Ward.  But who is really at fault?  And how can developers, distributors, and publishers avoid angering their customers in the future?

The heart of the problem seems to stem from consumer confusion over just what they are getting when they conduct a transaction for computer software.  While traditional media sales (books, movies, CDs, etc.) tend to involve an actual purchase of a good, nearly all computer software transactions employ an End User License Agreement (“EULA”) in order to characterize the transaction as the transfer of a license to use the software rather than an outright sale.  This legal technicality effectively eliminates the software from being covered by the first sale doctrine and gives software publishers immense post-sale control over their products.  Whether or not these types of agreements are good for consumers is still up for debate and certainly beyond the scope of this post, but one simple fact remains:  Modern Warfare 2 players are not purchasing a copy of the game–they are acquiring a limited license to play the game.

In an effort to create distinct market segments and effectively engage in price discrimination, the Modern Warfare 2 EULAs contain region-specific licensing terms.  As a result, the licenses sold in bulk (and at a substantial discount) in foreign markets are only authorized to be used in those markets.  So, when Valve discovered that distributors of Thai Modern Warfare 2 licenses were selling them to players in the United States, Valve enforced the terms of the EULA by banning owners of these grey market copies from their servers.  Gamers who purchased these Thai CD keys were enraged that their “legitimate purchases” were being banned when, in fact, they were not legitimate purchasers at all, but illegitimate licensees.  While I can easily understand why these gamers are upset–no one likes feeling ripped off, this is not a new phenomenon for grey market goods.

Past purchasers of tangible grey market goods (think Japanese-manufactured cameras and watches) were well aware that the substantial savings one could receive from purchasing grey market goods were not without certain inherent risks.  The most common risk associated with grey market goods was the lack of post-sale support.  If a consumer’s grey market camera breaks, they may be able to ship it to an overseas warranty repair center at substantial cost, but more than likely they will simply have to purchase a new camera.  The premium paid for a camera at a legitimate domestic retailer came with the added benefit of warranty support and/or other services.  Grey market consumers of old were well-aware of this trade off and it seems to me that the sale of grey market Modern Warfare 2 licenses should be treated the same way.

Gamers that purchase grey market licenses are simply given a CD key for the game.  These gamers then type this code into their Steam client (also subject to a separate EULA containing region-specific language) and download the game from Valve’s servers.  Then, in order to play the game online, gamers must again connect to Valve’s servers and communicate with Infinity Ward’s proprietary match-making service, IWNet.  Each of these occurrences (downloading the game and playing online) require additional post-sale services from the game’s manufacturer and/or developer.  Post-sale service was not expected by purchasers of tangible grey market goods, so why should purchasers of grey market computer software expect this service when they run a program in violation of their EULA?

Initially, it may seem difficult to understand why it is fair for the developers of Modern Warfare 2 to ban grey market licensees, but it makes more sense when you consider the effects of these players in the aggregate.  Distributing a game as complex as Modern Warfare 2 can be a costly endeavor–bandwidth, development, and server maintenance is not free.  In order to cover these costs, Activision and Valve have to decide on a pricing scheme for their software.  An integral part of this scheme is price discrimination.  Price discrimination allows Valve and Activision to cover the substantial costs of developing and maintaining a game like Modern Warfare 2 by making the software available at a profit-maximizing price in different market segments.  With $50 million in development costs and $200 million in advertising for Modern Warfare 2 alone, not to mention the ongoing maintenance costs, it is easy to see why this profit maximization is important.  Unfortunately for gray market licensees, this can only be done when market segments remain segmented, which means banning Thai-market CD keys from being used in the US.

The real bad guys in this scenario seem to be the individuals that gamers are praising as heroes–the modern day Robin Hoods bringing cheap gaming to all, grey market distributors.  These merchants are well-aware of Modern Warfare 2‘s licensing terms and should be held accountable for selling these licenses to players outside of their region.  While one could easily claim that these online merchants are unaware of their customers’ locations, this argument tends to fall apart when you view their websites.  Maybe it’s just me, but I find it peculiar that a website selling Thai-market CD keys is entirely in English, has an American flag in the upper left corner, and lists their prices in US dollars by default.

So, what can be done?

First, gamers that have purchased a now-banned CD key should demand their money back from these grey market merchants.  Second, Valve should hold these distributors accountable for their actions.  If Valve can track what region a CD key is intended for, they can also find a way to track which merchants purchase these keys in bulk.  Those caught selling their keys to out-of-market gamers with regularity should be denied the ability to purchase keys for future games.  Had this been done before (Valve’s Team Fortress 2 also had a series of grey market bannings), perhaps we would not be running into this issue now.  As it stands, gamers are losing money to shady overseas merchants and game developers are forced to deal with the aftermath.  While it may take some time for any real change, I can only hope that the public outcry will at least create more savvy shoppers.  Heck, we may even catch a person actually reading an EULA or two in the future.

The similarities between the two men are definitely apparent: They both have a similar look, a staunch ignore-the-facts attitude, and an inexplicable need to limit free speech.  Oh, and did I mention the children?  They are both adamant that their attempts to quash free expression for the good of the children.  How can anyone argue with that?

However, there is one major difference between Thompson and Atkinson: Michael Atkinson is winning.

While Jack Thompson’s attempts to pass laws censoring or limiting the availability of violent video games were consistently foiled by U.S. courts, Atkinson is winning the fight against violent video games by simply refusing to do anything.

You see, Australia currently has a video game rating system that tops out at “MA15+,” which is material classified as not being “suitable for people under 15.”  Anything beyond the MA15+ rating is refused classification by Australia’s Office of Film and Literature Classification (“OFLC”) and, because classification is mandatory, games warranting a rating beyond MA15+ are banned from sale and public exhibition.  In essence, this means that Australian gamers are unable to purchase any games that contain content that would be unsuitable for a 15 year old.  This holds true despite the fact that the average age of Australian gamers is 30.

So, what do shortcomings with the OFLC’s rating system have to do with Atkinson?  Well, Australian gamers and politicians have realized for a long time now that an R18+ rating for video games would allow adult gamers in Australia access to the same mature content that gamers around the world are able to enjoy.  However, in order to make any changes to the OFLC’s rating system, there must be unanimous agreement by the Commonwealth and all state and territory attorneys-general.  Atkinson, Attorney-General of South Australia, is now the sole Attorney-General who opposes the addition of an R18+ classification for video games.  Additionally, Atkinson has blocked the release of a government-sponsored paper that canvasses the opinion of the Australian public on whether or not an R18+ classification should be introduced.  He shows no signs of changing his mind and has even directly challenged gamers:

I am next up for election in March 2010. The state district I represent is called Croydon. I would welcome advocates of R18+ computer games testing public acceptance of my policy by standing a candidate against me.  I think you will find this issue has little traction with my constituents who are more concerned with real-life issues than home entertainment in imaginary worlds.

While I can understand the desire to keep certain materials out of the hands of children, the complete censorship of adult-oriented material is inexcusable.  Worse yet, some more popular franchises seem to “slip in” to Australia’s MA15+ rating despite being universally rated 18+ around the world.  In these circumstances not only does it become easier for children to get their hands on violent material, but it would also seem that large publishing companies are given special consideration beyond what is afforded to smaller developers.

The R18+ debate is sure to rage on, but for now Mr. Atkinson can sleep soundly knowing he is the new villain du jour.

Joseph Anzalone, a DC Metro-rider, recently sent a letter to the editor of the Washington Post criticizing the judgment of WMATA officials for allowing advertisements for the post-apocolyptic game Fallout 3 to be posted in Metro Center:

Metrorail riders who have passed through Metro Center over the past several weeks may have noticed signs throughout the station advertising a video game called “Fallout 3.” A heavily armored enemy soldier appears in the foreground of the ads, and the background includes images of seemingly war-ravaged national landmarks.

* * *

The people of our city do not need a daily reminder that Washington is a prime target for an attack. We do not need a daily reminder of what our worst fears look like. Since any First Amendment objection would be irrelevant (the ads do not present a true viewpoint or political message and would therefore not be protected), there is no reason for these ads to be part of our daily panorama.

The ads should be removed, and the appropriate office at Washington Metropolitan Area Transit Authority should be directed to exercise better judgment regarding what can be displayed in our transportation system.

For those unfamiliar with the ads, BlindsideDork at Destructoid.com has a good collection of images and videos.

I have a few problems with Mr. Anzalone’s letter:

First, his First Amendment argument is fatally flawed. Nowhere in the Article I does it say that only “true viewpoints” and “political messages” are protected. Sure, the government must overcome an exceptionally high burden to ban this type of speech, but it’s not the only speech that is protected.

Second, I think the images are intentionally evocative — that’s just good advertising. Fallout 3 takes place in a post-apocolyptic Washington, DC; the images displayed in Metro Center center simply depict the game’s setting and are meant to be powerful enough to stir up interest in the product. The developer of Fallout 3, Bethesda Softworks, happens to be located just outside of DC in Bethesda, MD — I sincerely doubt they’re trying to cause a panic in the area. Besides, the notion to decorate Metro Center to look like one of the famed “vaults” in the game is just damned clever ad-wizardry.

To be honest, I pass through Metro Center at least 10 times a week and I don’t even notice the ads anymore. As a gamer, I was really interested to see them go up, but they quickly faded into the background of the chaos that overtakes the DC Metro around rush hour, which, if you ask me, is a much more telling portent of the chaos that would consume DC following any sort of terrorist attack.

[via GamePolitics]

PC World‘s Darren Gladstone posted a story today about “the Nintendo DS’s dirty little secret” — the R4 and its progeny. Gladstone discusses the clandestine, Hammettesque process of purchasing an R4 in San Francisco’s Chinatown and then launches into a discussion about the merits of such a device:

When I first heard about the hard-to-find R4–a device that resembles a Nintendo DS cartridge but has a microSD card slot–I was intrigued. But I heard the buzz, too: “It allows you to play pirated Nintendo DS games. Just copy files from a PC to the microSD card, and pop that into the R4.” I’m no pirate! I support the guys who make my games! So at the time I decided to steer clear.

But the R4 isn’t just the key to pirate booty. The homebrew community has latched onto this elusive, illicit device too. Yes, some unsavory sorts pirate software, but indie game designers are crafting their own DS software and sharing it freely with the world. Sudoku puzzles. “Choose Your Own Adventure”-type “books.” Legal emulators for freeware adventure games, such as ScummVM. Arcade-worthy shooting games. Heck, folks have even made Web browsers, photo viewers, MP3 players, and e-book readers.

While the ability to run indie-developed homebrew applications is cool, there is little doubt that the R4 is primarily used for pirating retail Nintendo DS games. Additionally, Gladstone’s discussion of the R4′s ability to run emulators and media players is a bit dubious considering that the media and games played in these programs are typically pirated.

Hopefully Nintendo will offer indie developers the chance to publish games on the new download service launching with the Nintendo DSi. Creating a market similar to the iPhone’s App Store would eliminate nearly every argument in favor of R4-like devices.

Personally, I have mixed feelings on the issue. I’ve always been a tinkerer and closet programmer, so I strongly support a consumer’s ability to modify or otherwise augment his electronic devices to find more uses for them. However, there is little doubt in my mind that the stunning majority of R4 sales are used for nothing but piracy. Ideally, I think that law enforcement agencies should target distributors and “release groups” to stop piracy at it’s most basic level; however, I can appreciate how that task is nearly futile as these groups become more organized and stay abreast of the latest technology in online distribution.

[via PC World]

Eugene Volokh, UCLA’s Gary T. Schwartz Professor of Law, just posted some interesting commentary concerning a recent Dutch court conviction of two youths for stealing virtual items in Runescape. Under Dutch law, the virtual goods are considered goods, so their theft constitutes a criminal act. However, the goods were not “virtually stolen.” Instead, the two boys committed physical violence against a classmate who eventually transferred his items to the attackers.

I would recommend heading over to The Volokh Conspiracy and reading Prof. Volokh’s comments concerning the difference between “virtual theft” and “real-world theft of virtual goods.” The difference between the two is significant and worth considering. As virtual worlds tend to more realistically parallel real-life, it is not improbable to believe that individuals will attempt to enforce virtual crimes in real courts. I agree that the law should not prohibit virtual crimes; however, I’m not sure what games Prof. Volokh has seen that feature virtual rape.

[via The Volokh Conspiracy]

Ben Croshaw, of PC Gamer and Zero Punctuation fame, recently posted an opinion piece discussing Australian video game censorship over at news.com.au. Ben examines the Australian game rating system, which ranges from “E” — for everyone — to “MA15+” — for gamers 15 and older. Because Australia does not feature an 18+ rating, all games that are inappropriate for an “MA15+” rating are effectively banned.

Ben argues that while there are plenty of mature games that he believes lack any “worthwhile” mature speech, there is no reason that adults should be denied access to these titles. Furthermore, Ben points out that as the gaming medium matures as an art form, many developers find themselves experimenting with more mature themes. As Germany and some other European nations effectively ban games on occasion by refusing to rate them, Ben’s arguments prove interesting on an international level.

Read the full article here.

Recently, the Internet has been abuzz with discussion surrounding Activision and Vivendi’s decision not to continue their membership with the Entertainment Software Association (“ESA”). Coupled with a rumored defection by LucasArts, gamers have begun to wonder if this is a portent of troubled times for the gaming industry’s premier trade association. While it is too early to declare that the ESA is “rapidly taking on water,” a continued decline in membership over the next year could signal trouble.

Overall, news of the Activision/Vivendi departure was met with a predominantly favorable response from gamers. While there was an occasional expression of concern for the future of the organization, the majority of gamers seemed to be bewildered with what the ESA actually does. As a result, many were proud of Activision and Vivendi for pulling out of an organization they viewed as being largely irrelevant.

Interestingly, complaints went beyond anonymous remarks from Internet users. Wedbush Morgan’s Michael Pachter chastised the ESA for being too passive since the departure of former president Doug Lowenstein. And, perhaps strangest of all, Mike Wilson, CEO of Gamecock Studios, recently released a snarky video announcing that he is running for ESA President.

Despite these complaints, the vast majority of hostility towards the ESA has come from gamers and journalists. The gaming industry, on the other had, has been largely supportive of the ESA’s efforts. Industry heavy-weights Capcom and Electronic Arts have come forth and shown their support for the ESA and Take-Two, a company in perhaps the best position to judge the ESA’s performance, has stated that it “supports the Entertainment Software Association, its leadership and its efforts on behalf of the industry” and that “Mike Gallagher has done an outstanding job as president of the ESA…” (hyperlink added).

The reason for the ESA having a fair number of opponents among gamers is not hard to cognize and was well put by Mike Musgrove of the Washington Post:

The [ESA] makes headlines on game news sites only when there’s been an anti-piracy crackdown or a new uproar over a game’s rating. Neither of those types of story tends to win the organization fans in the gamer community.

However, it is time for the ESA make headlines for entirely new reasons. It’s time for gamers to discuss what the ESA does and why it is so imperative that this organization continue to defend the interests of the gaming industry.

What is the ESA and what does it do?

Perhaps the most fundamental problem with public perception of the ESA is that most gamers do not understand the nature or intent of the organization. Prior to writing this article, I conducted an unscientific poll and found that gamers typically believed one of three things about the ESA: (1) the ESA is the group that “is supposed to sue all those people making video game laws,” (2) the ESA “arrests all of those people selling modhcips,” or (3) “the ESA doesn’t do anything.” Granted, the majority of gamers have never heard of the ESA, but this sampling was taken from gamers informed enough to know what the ESA is, but decidedly less informed than the extremely “hardcore” gaming community. (Disclosure: Those polled were GameStop employees.)

To a certain extent, answers (1) and (2) are both correct. The ESA does involve itself with defending against anti-game legislation and it also helps organizations, such as Immigration and Customs Enforcement, arrest and prosecute game pirates. However, the true intent of the ESA is far more expansive. According to the ESA website, the organization is “dedicated to serving the business and public affairs needs of companies that publish video and computer games for video game consoles, personal computers, and the Internet.” What does this mean? Well, it means that the ESA is the video game industry’s trade association.

In the most basic sense, a trade association is a public relations organization that is funded by corporations in a common industry. Trade associations typically promote an industry by lobbying, advertising, making political donations, and educating the public about the relevant industry. More specifically, the ESA actively combats copyright infringement, censorship, and government regulation of video games and regularly publishes business and consumer research concerning the video game industry. Additionally, the ESA is responsible for founding the Electronic Entertainment Expo (“E3″), the Entertainment Software Rating Board (“ESRB”), and the Video Game Voters Network (“VGVN”). Put in this framework, it is clear that the ESA has a fair number of projects, but one important question remains:

Why should gamers care?

First, despite impressive sales, video games continue to lack political credibility. While generally under the radar of most gamers, the ESA has taken giant strides toward legitimizing video games as a valid concern for leaders on Capitol Hill. Even with $17.9 billion in sales across 2007, most political leaders did not view video games as a legitimate concern of their constituents. Instead, the few times games were brought up in congress, it was usually part of a bill designed to limit the “negative effects of gaming on children.”

As of this writing, the ESA is the only organization that has attempted to buck this pernicious trend. Between the announcement of a new political action committee dedicated to supporting politicians who are friends of the gaming industry and the creation of the Video Game Voters Network, the ESA has taken steps to influence politicians in the two areas that matter most: money and votes. The ESA’s attempts to organize both contributers and voters into a unified, grass-roots movement has been immensely important to the political maturation of the gaming industry. Despite the relatively low-profile of many of these efforts, these activities form the absolutely essential foundation required to ensure that gamers have a significant voice in the political process.

Second, gamers should care about the ESA because it is the gaming industry’s only form of organized political influence in Washington. Whether another, more effective organization could be formed would provide enough discussion for an entirely new post, but, as it currently stands, the ESA is the only organized group continuously lobbying for the gaming industry in Washington. The importance of effective lobbying cannot be understated, particularly for an industry still clamoring to gain political and cultural credibility. From frozen pizza to healthcare consultants, the number of trade associations lobbying the US government in some form is staggering. The importance of lobbying is no mere hyperbole, the mass assemblage of lobby groups across numerous industries makes two things clear: (1) lobbying works and (2) without an effective lobby, even the most noble causes will be lost among the thousands of groups bellowing for their constituents.

Aside from lobbying efforts, the ESA has created an organization that would be nigh impossible to sustain without the backing of the gaming industry at large: the Video Game Voters Network. While still in relative infancy, the VGVN has already proven an effective tool for organizing voting-age gamers into a common collective. Within the span of a week, the VGVN surpassed a membership of 10,000 voters and now boasts membership well over 100,000. Through their website, the VGVN has successfully informed both voters and politicians about issues in the video game industry and further launched several state-wide campaigns to battle video game legislation.

Third, the ESA is responsible for supporting the successful litigation of numerous anti-video game bills. While many gamers criticize the ESA by claiming that the organization is too hands-off with its litigation efforts, the people fail to recognize the work that the ESA has done in numerous states. First, it is important to recognize that the ESA’s job is not to serve as private council for every game publisher that is brought to court. Such involvement is impossible from a practical standpoint; litigation is expensive and the ESA cannot provide support in every case. Instead, the ESA picks its court battles carefully and only takes action when the outcome of a decision is critical for the industry as a whole. The ESA has been a key player in industry victories against state legislation seeking to regulate or censor games. Among these victories are decisions against the Minnesota Video Games Act, Michigan’s bill regulating the sale of violent video games, the Illinois regulation on video game sales, and the St. Louis violent video game bill. Each of these decisions has proven to be an important victory for First Amendment protection of video games and has often resulted in damage awards for game publishers.

Conclusion

Despite my seemingly lavish praise for the ESA, I will impart one caveat emptor: the ESA is still a publisher-owned organization. While the political aims of publishers have so far been in line with the concerns of the average gamer, there is always a point where the interests of consumers and publishers will diverge. The clearest example of this was in the scaling back of E3. Gamers came to love the glitz and glamour of the industry’s largest trade show, but the ESA decided to scale back the event when it became little more than a massive pissing contest between publishers. While this move was not favored by the press, the ESA hoped it would better serve the interests of its constituent publishers — whether this is true has yet to be seen.

In sum, the ESA is an organization that is largely misunderstood by the gaming community and extremely important to health of our hobby as a whole. While seemingly opaque at first blush, the ESA is surprisingly frank and upfront with its policy and goals. While I don’t expect everyone to agree with the methods or policy behind every ESA decision, I hope that everyone reading this is now in a position to answer to oft-posed question, “What does the ESA actually do, anyway?”