The Childlike Novelty of Video Games, and Its Serious Progeny of Legal Challenges for Adults

By Jason Aylesworth and Megan Maxwell, Co-Chairs of the Digital Media Committee1

Twenty-five years ago, the concept of digital media law was fairly non-existent. Video games were present in some households, but most exposure to gaming came from arcades. Moreover, Web 2.0 had not taken hold and revolutionalized internet use. But in the past twenty-five years, advances in technology and an increase in consumer consumption have put digital media at the forefront of entertainment legal issues.

A significant part of this influx of digital media is due to gaming. During the period from 2005 to 2009, the growth rate for the game industry was 10.6%, while the growth rate for the U.S. economy as a whole was 1.4%.2 In 2011, consumers spent $24.75 billion on video games, hardware, and accessories.3 This popularity is partly due to the increased access to games. The arcade no longer has a foothold on gaming; 33% of gamers play games on their smartphones, and the average U.S. household has at least one gaming device (console, PC, or smartphone).4 In addition, gaming is no longer only for kids; the average gamer is thirty years old and has been playing games for twelve years.5 Moreover, it can no longer be thought that gaming is only for boys – women account for 47% of gamers, and women over the age of 18 represent 30% of gamers (compared to 18% for boys age 17 and younger).6 Because of this rising popularity of gaming and the industry’s importance in the digital media field, this retrospective will focus on the legal issues facing the game industry, specifically First Amendment and copyright issues.

I. First Amendment- Are video games a protected form of speech?

Like other forms of entertainment in its beginning stages, video games were not initially given the same regard and respect as other forms of media. Specifically, games were not given First Amendment protections. In 1983, the New York Supreme Court followed guidance from prior cases and found that video games are not a form of speech protected by the First Amendment because video games do not impart information to the user or communicate ideas.7 Therefore, the court used a lower standard when determining the validity of a regulation regarding licenses for commercial locations to have video games on the premises.8

In 2011, however, the Supreme Court definitively granted First Amendment protection to video games. In Brown v. Entertainment Merchants Association,9 the Court evaluated the constitutionality of a California law that restricted the sale and rental of violent video games to minors. During its analysis, the Court stated, “Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages— through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).”10 In addition, the Court stressed that the government cannot use a savings clause (e.g., clause exempting works of serious religious, political, scientific, educational, journalistic, historical, or artistic value) in legislation restricting non-obscene speech; the obscenity exception only applies to “sexual conduct.”11

Moreover, the Court specifically noted the significant First Amendment protection given to minors; government cannot regulate speech directed to children merely because it thinks the speech is inappropriate.12 The Court briefly discussed the lack of a long-standing history of restricting a child’s access to depictions of violence – other art forms targeted to children (such as Grimm’s Fairy Tales) contain similar depictions of violence.13 Arguing that all forms of art have varying degrees of interactivity, the Court also rejected the argument that video games should be treated differently because they are interactive.14 Noting the flawed methodologies and lack of direct evidence in the studies submitted by California, the Court also rejected the argument that there is a connection between video games and violent behavior.15 Even if the studies were accurate, the Court believed that there is nothing to distinguish the effect of video games from the effects of other forms of media containing violence, including media that is directed and intended for children (e.g., Bugs Bunny cartoons).16

Significantly, the Court also discussed (and praised) the current voluntary rating system used by the Entertainment Software Rating Board (ESRB).17 Citing a report from the Federal Trade Commission (FTC), the Court noted that the video game industry is more successful at restricting access of inappropriate material to children than the movie and music industries.18 Considering the above, the Court ultimately found California’s law to be unconstitutional.19

Brown notwithstanding, due to the number of mass shootings in 2012 (including the allegation that Newtown shooter Adam Lanza was a video game player), there has been a recent call for further study on the connection between video games and violent behavior. On December 19, 2012, Democratic Senator Jay Rockefeller introduced legislation to request the National Academy of Sciences to conduct a study on the impact of violent videogames on children and request that the FTC and the Federal Communications Commission (FCC) do more work in this area.20 Rockefeller specifically noted that the courts, unlike parents, pediatricians, and psychologists, do not properly understand the issue.21 In addition, Rockefeller distinguished this new study from prior studies because it would consider whether the effect of videogames is different from the effect of other media and look at possible long-lasting effects.22 He believes that the FCC and FTC need to become more involved because of advances in technology that have increased the accessibility of games. ESA responded to this new proposed legislation by requesting that any future study take into account the multiple other factors that contribute to violent behavior and include the research that shows no connection between video games and violent behavior.23 Other factors include the level of parental engagement with their children’s gameplay. Many children have questions about what they see in video games and could benefit with adult interaction. Moreover, children can also educate adults about this popular form of entertainment, establishing a harmonious gaming relationship together.

Gaming has many facets, and it should be noted that the game industry does not generally consist of violence. In 2011, 73% of all games sold were rated “E” for Everyone, “T” for Teen, and “E10+” for Everyone 10 and older.24 Due to Senator Rockefeller’s proposed legislation, the future of gaming content is unclear, but the industry has survived these studies and allegations before and Brown still provides guidance on how courts will handle any future content restrictions placed on the industry or its retailers.

II. Copyright – to what extent is there protection within video games?

Besides testing the bounds of First Amendment protection, videogame developers, manufacturers and distributors found themselves in the courtroom concerning legal issues on copyright. New technology was developed which enabled gamers to play their videogames in a different manner, including cheating. Codemasters, a British videogame developer, created a device in 1990 which empowered gamers to adjust certain default settings on a video game cartridge so players could quickly finish a game by avoiding the digital obstacles created by the game programmers. Consumers were able to increase the number of lives of the game character, as well as equip such character with all powers and equipment to overcome the challenging difficulty of completing all of the levels of a game in a short period of time. This revolutionary device was known as Game Genie, which was manufactured and distributed in the United States by Galoob Toys. While one of the leaders of home consoles during this period, Sega, welcomed the technology, Nintendo felt that such a device interfered with their copyrighted game cartridges.

In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,25 the United States Court of Appeals in the Ninth Circuit had to determine whether the Game Genie infringed on Nintendo’s copyright in their video games. Nintendo’s argument was that the technology created unauthorized derivative works in its copyrighted videogames, violating their exclusive right to prepare and authorize authors to prepare derivative works.26 The Court of Appeals disagreed, holding that the Game Genie “merely enhances the audiovisual displays (or underlying data bytes) that originate in Nintendo game cartridges”27 and “cannot duplicate or recaste, a Nintendo game’s output,”28 therefore concluding that the Game Genie did not create infringing derivative works.29 This decision allowed other companies to manufacture and market devices to satisfy gamers’ demands of completing lengthy journeys with a bundle of superpowers in an expedited period of time, perhaps to allow the consumers’ need to purchase and play another videogame. While the Court of Appeals held that the audiovisual displays in Galoob were not infringing derivative works, they would later examine a dispute finding that another type of audiovisual display was in fact an infringing derivative work.

Six years after Galoob, the Court of Appeals held in Micro Star v. FormGen, Inc.30 that game levels created by players were derivative works.31 FormGen, Inc. was the copyright owner of the Duke Nukem 3D, a first-person shooter game popular in the nineties.32 The game included a feature allowing players to create custom levels within the Duke Nukem universe, and a license to post such levels on the Internet for others to download for personal use.33 Micro Star downloaded 300 user-created levels onto a CD, and sold it commercially as Nuke It.34 The question before the Court of Appeals was whether the audiovisual displays generated when FormGen’s game ran in conjunction with Micro Star’s CD MAP files were considered derivative works that infringed on FormGen’s exclusive right to create derivative works.35 After navigating through the technical minutiae of what makes up the user-created audiovisual display fixed in the MAP file, the Court of Appeals distinguished Micro Star from Galoob.36 The Court of Appeals noted that in Galoob, “the audiovisual display was defined by the original game cartridge, not by the Game Genie,37” while the audiovisual displays in the present case were defined by the MAP files on Micro Star’s CD.38 Specifically, the “MAP files describe the audiovisual display that is to be generated when the player chooses to play Duke Nukem 3D using the Micro Star levels.39” Besides the victory for the creators of Duke Nukem 3D, this case brought to light the greedy nature of noncreative parties attempting to ride on the coattails of imaginative people. Not only did Micro Star infringe FormGen’s copyrighted works, but they essentially stole from the players who built new levels within the Duke Nukem universe. Notwithstanding this lazy effort to commercially exploit an underlying property, it does not compare to the blatant copying done by another selfish company trying to capitalize on another gaming pioneer’s innovation.

In Tetris Holding, LLC v. Xio Interactive, Inc.,40 the United States District Court of New Jersey evaluated whether the defendant’s videogame Mino infringed on the plaintiff’s videogame Tetris.41 Tetris’s claim was that Mimo infringed on their copyrightable elements including but not limited to “playing pieces (‘Tetriminos’) made up of four equally-sized squares joined at their sides; bright, distinct colors used for each of the Tetrimino pieces; and a tall, rectangular playfield (or matrix), 10 blocks wide and 20 blocks tall.42 Xio’s position was that these elements were not original expression, but rather the rules and function of an idea which was not protected by copyright.43 The District Court vehemently disagreed with Xio’s ill-advised stance, confirming that the elements of the videogame Tetris were expressions Tetris Holding’s “specific and deliberate design choices,44” and “to allow Xio to profit off that expression…by blatant copying, without offering any originality or ingenuity of its own, defies the very purpose of copyright law.45” This case does not mean that companies cannot create videogames with the same rules as Tetris. For example, Nintendo’s Dr. Mario used the unprotected rules of Tetris, but not the copyrighted elements of expression. Rather than “using bricks to form complete rows”, the user aligns pills and viruses of different colors to form patterns and eliminate the viruses as part of the pattern based on the color of the objects.”46 Mimo, on the other hand, copied the colors and dimensions of the Tetriminos, and mimicked the 10 x 20 rectangular playfield.47 The ruling of this case not only discourages individuals and companies from stealing digitally-created works, but it also reaffirms the purpose of copyright law protection: to stimulate cultural and economic development.

 The gaming industry has greatly advanced in the past 25 years. This escalation of the industry’s importance is reflected in its role in legal issues facing the entertainment, arts, and sports field, and this importance will only increase as the industry experiences future growth. As the industry grows, however, it will continue to face the same prominent legal issues that it has faced for the past 25 years – First Amendment and copyright issues.

As games continue to be blamed for real-life tragedies, the concern over games having a bad influence on children will persist. It is debatable whether there is a correlation between a game’s graphic depictions of violence and a person having a false sense of morals and reality. But after Brown, it would be difficult for government to pass legislation restricting the content of games and the ability of the game industry to sell its product. Rather than looking to the industry to create safety measures beyond ESRB ratings and procedures, it may be more beneficial for future studies to consider external factors influencing levels of violent (e.g., parental involvement). In order to further advance gaming, it is imperative for game developers to let their creative juices flow without unreasonable censorship, and hopefully future First Amendment cases will continue to protect this necessity.

Copyright protection is also a necessity for these innovative creators. In order to reap the financial benefits of a successful videogame product, copyright law must keep up with the speed of technology that makes infringement much easier. Furthermore, designers need to be confident that their rights of ownership will remain strong when their games inspire the creation of derivative works which needs their consent. As with the First Amendment, the recent cases in this area have protected the creators. This protection in both of these legal issues is important as technological advances continue in the evolution of the fun (yet legally complex) video game industry.

1 We would like to thank our fellow co-chair Andrew Seiden for his assistance in preparing this article. We would also like to thank Holly Sawyer for conducting the initial research.
2 Siwek, Stephen. Video Games in the 21st Century: The 2010 Report, Entertainment Software Association (2010).
3 Entertainment Software Association, Industry Facts, available at http://www.theesa.com/facts/index.asp (last visited December 26, 2012).
4 Id.
5 Id.
6 Id.
7 In the Matter of Tommy and Tina, Inc. v. Dept. of Consumer Affairs of City of N.Y., 117 Misc.2d 415, 424 (N.Y. Sup. Ct. 1983) (relying on America’s Best Family Showplace Corp. v. City of New York, Dept. of Bldgs, 536 F. Supp 170 (E.D.N.Y. 1982) and City of New York v Rambling Ram Realty Corp. NYLJ, June 29, 1982).
8 Id. at 424.
9 131 S.Ct. 2729.
10 Id.
11 Id. at 2734.
12 Id. at 2736.
13 Id. at 2736-37.
14 Id. at 2738.
15 Id. at 2739.
16 Id.
17 It should be noted that New York passed N.Y. GBS. LAW §§ 611-612 in 2008 which requires that video game packaging displays the ESRB rating and new console units to have parental controls.
18 Brown, 131 S.Ct. at 2741.
19 Id. at 2742.
20 Johnson, Ted. Pols Call for Study on Violent Videogames, Variety (December 19, 2012), available at http://www.variety.com/article/VR1118063833/ (last accessed December 26, 2012). The study would also look at violent programming, but it is not clear how violent programming would be defined. Id.
21 Id.
22 Id.
23 Id.
24 Entertainment Software Association, supra note 3.
25 964 F.2d 965 (9th Cir. 1992).
26 Id. at 967.
27 Id. at 968.
28 Id. at 969.
29 Id.
30 154 F.3d 1007 (9th Cir. 1998).
31 Id.
32 Id.
33 Id.
34 Id.
35 Id. at 1110.
36 Id. at 1111.
37 Id.
38 Id. at 1111, 1112.
39 Id. at 1112
40 863 F.Supp.2d 394 (D.N.J. 2012).
41 Id.
42 Id. at 397-398.
43 Id. at 399.
44 Id. at 411.
45 Id.
46 Id. at 412.
47 Id. at 413.

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