What Jeff Green Is Missing (Potential Legally Affected Citizen Calls Jeff Green “A Hypocrite…Too”)

Jeff Green,  EA.com’s Editor in Chief issued an open letter / blog detailing his views on the recent events concerning California, ECA (Electronic Consumer Association), and ECM as well as why the landmark battle should be important. While well intended and generally just an opinion with merit, his post contains what I feel are flaws that really just get under my skin. Green, being the person he is at the position he’s in makes it doubly important to understand more than just the ‘made to be a victim’ industry argument he proposes that in all honesty isn’t really all that solid to begin with.

If this were a debate about legislating content or legislating exposure, Green would have a solid argument. Nevertheless, that is not the case here. Green uses James Joyce’s Ulysses as an example of trampled rights, but when Joyce had to fend off legislation, it was to determine whether he could actually publish the content of the book for public consumption, not whether he could sell it to someone of a certain age. People like Jack Thompson have tried this fight and his was a fight about exposure and content, asking for the legislation limiting what they can produce. I agree that limiting content and exposure is not the way to go because it strips the choice of people as to what they buy.

This is a very different fight – one of sales, which limits a retailer in who they can allow to buy a certain level of product (like Playboy or Hustler) and has nothing to do with legally enforcing what is in the games sold. It ultimately tampers with the bottom dollar of whom Green works for and if anything he of all people should be acutely aware of that, but Green would have people believe that the legislative actions would force the hand of developers in terms of content; and that’s just not true.

Green emphatically attempts at painting the picture as though the games industry as held to a different standard than other entertainment industries and he is right, but in their favor and not against. Green equivocates the games industry to the movie industry but the games industry has not been hit with many of the anti-trust laws that the movie industry has in regards to distribution of the games they produce. For example, EA has a digital storefront, and with it is able to develop, publish and sell their games and in that, own exclusive rights as to what they sell as well as discretion with who gets what deal (i.e. an exclusive “Game Stop” incentive vs. none for Walmart). Movie studios cannot do this (so simply), by law and in 1948 became forced to divest themselves over the Paramount v. United State anti-trust case ruling. Movie Studios can produce a movie and publish a movie but they may not own the theaters that show them, dictate to the theaters how many of what to show, force them to show a movie without screening or offer special incentive to some stores and not others (here again, all in simplistic paraphrased terms). This is because it eliminates free trade and fair business. To my knowledge EA does not engage in any specific things I can example comparatively to the Paramount v. United States anti-trust case, but they do engage in principally the same kinds of things as do all publishers who own development studios. With anything presented, the redeeming qualities and last straws in legal wording are linguistic semantics. So be it. This is neither the time nor place, and I lack the expertise to heavily debate the deep portions of where that can lead, not to mention that it is not part of my basic point.

Green writes:

The bill in question, banning the sale of violent videogames to minors,  was actually signed into law in California in October 2005 and was scheduled to go into effect on January 1, 2006.   But following its signing, the EMA (Entertainment Merchants Association) filed a lawsuit — EMA v Schwarzenegger – asserting that the law was unconstitutional because it violated plaintiffs’ rights under the First and Fourteenth Amendments to the Constitution to freedom of expression and equal protection of the laws. In 2007, a district court agreed with the EMA and barred enforcement of the law, and then in 2009, after an appeal by the State of California, the U.S. Court of Appeals for the Ninth Circuit agreed once again that the law was unconstitutional. That brings us to today, in which California is presenting its written argument in favor of this law to the United States Supreme Court, who will have the power to reinstate it as a law in California  if they so choose.

While this is inherently all true, something Green may be interested in knowing is that like movies and the MPAA, the ESRB is volunteer. In fact, we know Green knows this because he states so later in the post:

The MPAA movie ratings are a voluntary system not enforced by law. For the past 48 years, people have used the MPAA ratings to decide for themselves whether a movie was appropriate for themselves or their children.

However, it has already been found that there is no violation of the First Amendment towards movie studios, producers and directors because the MPAA is a volunteer process. So, if there’s an imbalance here Green is trying to create it by claiming that restrictive sales abridge rights they don’t have because they’re not given in principally same way by principally the process that movies undergo (which he’s comparing his industry to). Wait, what?

If Green alleges that the games industry is so much like the movie industry, and that the games industry is treated unfairly, then surely a balance would be a forfeiture of First Amendment rights by submitting voluntarily to ESRB just as movies.

Green moves on:

I mean, no one (well, no one with half a brain and any standard of decency or responsibility) wants to actually sell excessively violent videogames to children.

R.J. Reynolds claimed a similar stance when questioned in several court cases involving whether Joe Camel made an appeal to kids, and studies found that ages smokes age 12-17 quadrupled in numbers of the course of that particular ad campaign and decreased when pulled. Of course there is always the trusty, “the road to hell is paved with good intentions“, and it’s easy to say that the intent wasn’t there, but hard to say the impact isn’t irrespective of intent. Conversely, if I break an antique vase and reply, “I didn’t mean to break that lamp,” the lamp is not going to magically be unbroken and someone still has to pick up the pieces and deal with a broken lamp.

But by making it illegal to do so–especially given the vagaries of what constitutes “excessive”,  it could have a chilling effect on the gaming industry as a whole–both the makers and sellers of the games,

In his post Green talks about semantic ambiguity, specifically with the word “excessive”, but laws when written and put to code are such that the law itself is preceded by several pages of words used and how the law defines them. It becomes then strange to read that no one wants to sell ‘excessive’ violence and then in the same sentence question what excessive is when that would be something later defined to fit the law within reason. With a legal ‘word tailor’, that can be simplified into something just as vague but more accepted: “strong”; Strong Sexual Content… what does that mean? A number of things, but each version of the answer is universal in that they’re all ‘strong’.

…who will have to seriously think twice about the kind of product they can and want to sell, out of fear of ending up in jail. And therein lays the bigger question at hand. Because if you substitute books or movies or music in the previous couple sentences, you can see just how wrong this is.

Green fears that developers, should this law come into reality, would have to think twice about their content. Developers, like movie directors, already think twice about what they put in a game. If a developer makes a game that will not sit well with the audience, they probably won’t make the game or if they do, later regret it when the less than expected NPD numbers come rolling back in. It’s a decision of business, not morals. Therefore, they think twice not because they don’t want to disturb the populace, but because they do want to make money (Modern Warfare 2 and the airport scene as an example). This is neither commendable nor deplorable; it’s simply the blunt nature of business.

When we take this in context of an ‘adult vs. minor, we can say that minors shouldn’t be getting their hands on these games and Green states a similar belief, but there’s another popular argument which Green doesn’t touch on: Developers aren’t making the games for kids so it’s not a problem that publishers and developers need to worry about, only retailers. This is just a way for Green to “pass the buck” to parents since parents are the ones that supply the funds for kids to purchase games.

The fear becomes if retailers are limited to what they sell to their broad audience, they will limit what they buy to sell from publishers who in turn will tell developers to tone down the game for a softer rating and thus limit the original integrity and expression of the creative process. Again, the law would not limit the developers and publishers directly, only what the retailers are selling to the public.

Moving back to the top of Green’s argument:

So when you see young teenagers or little kids sitting with their parents at The Expendables next month for two hours of bloody carnage, this is why. It’s not illegal. And it’s not news.

Attending the movies with a minor, as a parent is not illegal, he is right. However, that is not what he is trying to point out. He is pointing out that it is not illegal to expose them to the material. While this is true, and I agree on the ethics of the motion, the law actually does enforces parental stewardship, sale, and exhibition and has nothing to do with one’s ability to create; it dictates rules for participation making this a semantic debate by way of sales v. exposure and nothing more. On the other hand, when Green states that no law prohibits sales of an “R” rated movie ticket to minors, he is not being wholly accurate (I’m not implying he’s lying and I believe he believes what he’s saying, but I don’t believe he’s done any deep fact checking).

I am not familiar with what is and is not legal in California, but I do hear that things in California can be either strict or lax. In this case, it seems they are about to become strict, but when GReen implies that on a national level movie ticket sales to minors are ‘not illegal’ he is partly wrong. Is it federal law? No. Is it illegal in some (read: more than one state) states? I am not entirely sure. Is it illegal in at least one state? Yes, Tennessee. In Tennessee, there is a set of codes, each with laws regarding sales, display, and (what can be considered) ethical actions towards movies and video games:

Tennessee Code 39-17-911:

(a) It is unlawful for any person to knowingly sell or loan for monetary consideration or otherwise exhibit or make available to a minor:

(1) Any picture, photograph, drawing, sculpture, motion picture film, video game, computer software game, or similar visual representation or image of a person or portion of the human body, that depicts nudity, sexual conduct, excess violence, or sado-masochistic abuse, and that is harmful to minors; or

(2) Any book, pamphlet, magazine, printed matter, however reproduced, or sound recording, which contains any matter enumerated in subdivision (a)(1), or that contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, excess violence, or sado-masochistic abuse, and that is harmful to minors.

(b) It is unlawful for any person to knowingly exhibit to a minor for monetary consideration, or to knowingly sell to a minor an admission ticket or pass or otherwise admit a minor to premises whereon there is exhibited a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct, excess violence, or sado-masochistic abuse, and which is harmful to minors.

c) A violation of this section is a Class A misdemeanor.

(d) It is an affirmative defense to prosecution under this section that the minor to whom the material or show was made available or exhibited was, at the time, accompanied by the person’s parent or legal guardian, or by an adult with the written permission of the parent or legal guardian.

[Acts 1989, ch. 591, § 1; 2000, ch. 763, § 1.]

Tennessee Code 39-17-914:

(a) It is unlawful for a person to display for sale or rental a visual depiction, including a videocassette tape or film, video game, computer software game, or a written representation, including a book, magazine or pamphlet, that contains material harmful to minors anywhere minors are lawfully admitted.

(b) The state has the burden of proving that the material is displayed. Material is not considered displayed under this section if:

(1) The material is:

(A) Placed in “binder racks” that cover the lower two thirds (2/3) of the material and the viewable one third (1/3) is not harmful to minors;

(B) Located at a height of not less than five and one half feet (5½¢) from the floor; and

(C) Reasonable steps are taken to prevent minors from perusing the material;

(2) The material is sealed, and, if it contains material on its cover that is harmful to minors, it must also be opaquely wrapped;

(3) The material is placed out of sight underneath the counter; or

(4) The material is located so that the material is not open to view by minors and is located in an area restricted to adults;

(5) Unless its cover contains material which is harmful to minors, a video cassette tape or film is not considered displayed if it is in a form that cannot be viewed without electrical or mechanical equipment and the equipment is not being used to produce a visual depiction; or

(6) In a situation if the minor is accompanied by the minor’s parent or guardian, unless the area is restricted to adults as provided for in subdivision (b)(4).

(c) A violation of this section is a Class C misdemeanor for each day the person is in violation of this section.

[Acts 1989, ch. 591, § 1; 1990, ch. 1092, § 5; 2000, ch. 763, § 2.]

What is the penalty for a Class A misdemeanor? It is punishable by a $2,500 fine and/or 11 months and 29 days in jail.

What is the penalty for a Class C misdemeanor? It is not greater than thirty (30) days in jail and / or a fine not to exceed fifty dollars ($50.00).

Again, this is not a federal law, nor is every state in the US with the same or similar law, but the Theater Association has universally supported and identical practice since… I think the late sixties to early 70s? – long ago enough for what Green goes on to believe “a certain number of years”, where “all those fussing about all this will be gone, and the only people left will be those who grew up with games [movies] their entire lives, and know how harmless and not scary and not worthy of reactive legislation they really are.” – I’m 33, born in 1977… I’d say that’s enough time, or is ‘enough time’ one of those ‘excessive’ vagaries Green was talking about?

Do these Tennessee state codes put movie directors in fear of their livelihoods? No, and it does not cut profits either. Green has a useless non-point based on the hysteria and hyperbole equal to what he is combating when he claims that the new law would put developers at risk of their livelihood.

To be fair, the law does state that the content must also be harmful to minors and since currently, all findings have been, in my opinion, inconclusive on the affect of violence in video games on minors, it is a stretch of either proponent (Green or Supreme Court) to rule in favor of either harmful or not harmful. As “evidence” stacks up towards games showing signs as considered harmful it may not be a huge stretch in the near future and on that front Green makes no reference and his slippery slope argument can go either way – he just hopes it goes his way instead of what can be seen as a rather innocuous reality.

That aside, there’s a really good chance that parents aren’t going to drag their little kids to such films as Expendables, the film Green uses as an example – so for Mr. Green, it’s an off target statement, but we get the point, as moot as it really is. But, what it does say is that the retailer violating the law is fined, if the parent deems it acceptable to take kids in the theater and watch whatever “R” movie is there, then it’s all gravy just as with this law parent who find the material acceptable would be able to purchase and distribute the game to their children.

One thing he writes is possibly the most ‘wrong’ in his argument:

If your 12-year-old comes home with a copy of Extreme NaziKiller 12 and is playing it in your living room, this is not the publisher’s fault. Nor is it GameStop’s fault. This is your fault, as a parent. That’s all it’s ever been.

Maybe… I think that it is the responsibility of the parents to monitor their children and what they take in, I whole-heatedly agree with the sentiment. However, the reality is far direr than the idealistic statement Green makes. Parents cannot be there all the time for everything, but should at least rely on the manufacturers of the products our children use and want parents to purchase. The game industry should lend a little support in providing information. It is also the responsibility of those around to take care of potential problems that we see building, and in that we have all failed to some degree. Passing the blame on to only parents does little more than disown any responsibility. If Green is not willing to share the failure, he cannot share the success.

Now, I am not advocating the mindset that games are the great Satan of today. They are not, or at least, I do not believe them to be. They have potential to be great tools and wonderful devices, but potential can go equally in either direction unless everyone involved takes responsibility, not just one side. Games are too big for a single unit responsibility measure.

Thankfully, retailers have printed material in the stores and there are several websites with their number growing to give this information to parents so that they may be informed. But this does not alter the fact that no matter how upset people may be with a lazy parent, placing blame on them is a divertive to taking equal responsibility for what goes into mainstream public without regard to potential damage. This is especially true when retail industry leaders have professed to the financial benefits of using a rating system for the sake of consumer comfort. This overlooks the idea that disregarding potential in either direction is irresponsible of parties involved. BP not taking care of a ‘potential’ problem, proved irresponsible. Likewise, Yahoo not recognizing the potential of Google when it had the opportunity was equally ‘irresponsible’.

Having a philanthropic presentation of actions with the gains already admitted within the gaming industry deflates the honorable image. The aforementioned examples are ‘real life’ things that have large and immediate effect and affect that extend in principle and manifest in action,  far beyond the comparatively trivial area of gaming that Mr. Green is operating. So, forgive me at my detraction and dissent towards the overall tone of Mr. Green’s “appeal” as I feel he’s attempting to pass a buck to shirk responsibility for the gaming industry’s hand in operating the ‘great machine’.

Findings on whether violence in games is detrimental to children is still relatively inconclusive, but both sides of that fence like to try and one up one another with a new, half assed study in hopes of winning a subjective war instead of admitting the objective lack of solid fact.  And through all of that if developers, publishers and retailers really felt as Green states, “no one (well, no one with half a brain and any standard of decency or responsibility) wants to actually sell excessively violent videogames to children.”, then they can’t on one hand say that they don’t want to hurt kids while on the other, whine about not wanting to not sell them to anyone freely. They can’t claim ‘the industry is responsible enough to be free from legislation with a volunteer system like the ESRB’ and then say ‘it’s not our responsibility’ because what it really communicates is the idea that as long as someone else assumes responsibility, there’s no need for content providers to be responsible.

AUTHORS NOTE:

I’m not, nor will I ever, advocate legislating content within a game in such a manner that I feel would be a true abridgment of out First Amendment right to free speech and expression. I believe, as do many others, what is contained within a game should be the free will and unbound expression of the content creator so long as it does not violate the rights of another. However, to listen to politicians and personally vested individuals argue that there shouldn’t be a means by which the common citizen can rest assured content deemed objectionable judged by a socially accepted metric is withheld unless said consent is undoubtedly given by someone of personal authority, namely parents. If anyone is the proper person to ask on the issue, it isn’t Green or his affiliated industry, but the parents.

Repeatedly, the counter arguments highlight the effects of this legislature on the industry and business, with little to no regard to the possibility of an affect on society. This is irresponsible. In addition, while the industry is responsible for one of the largest economic booms in this nation’s history, employs innumerable people the world over and has a major impact on other aspects of society and commerce, it becomes more important, not less important to keep them honest.

Yes, they follow certain guidelines, but not out of being upright and ethical but because it fills the wallet. The moment being ethical does not fit the need, ethical behaviors cease. Clear examples of this are found in history the world over. Are the existing measures enough? That’s not for the industry to decide – that is for the people to decide and if the people decide that no, it isn’t enough then what the industry has to say is irrelevant because at the end of the day, it is our money they thrive one. This, in essence is merely legislating ethics not morals.

When an industry claims they have ethics it simply means that they know what is right, but doesn’t guarantee they’ll do it. Would we not want them to do right by the consumer? How is it better to be reactionary and wait for businesses to make a bad choice by selling as they see fit, when the chance to be proactive and instill forced honesty is at hand? Please, take this rare opportunity to legislate the concept of personal responsibility and individual choice by limiting what can be sold to a particular body without the presence of the responsible party who is paying for it financially and socially.

This is only my take and opinion on a topic in which I ask myself: What is the point of having a system if we are not willing to protect the integrity of that system?

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The What Jeff Green Is Missing (Potential Legally Affected Citizen Calls Jeff Green “A Hypocrite…Too”) by Shawn Gordon, unless otherwise expressly stated, is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License.

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