By Dennis Scimeca
This session at PAX East consisted mostly of Q&A from the audience, but IGDA Director Tom Buscaglia wanted to open up with a discussion of Schwarzenegger v. Entertainment Merchants Association, the court case that centers around fines for sales of violent video games to minors. Seth Krauss, Executive VP and General Counsel for Take-Two interactive, said, “The Supreme Court case is indicative of the challenges we face in this industry.”
Political figures, said Krauss, use the video game industry as an easy target due to misrepresentation of the industry and who it represents. Take-Two is based in 22 countries and according to Krauss, “We face these sorts of issues of 'opportunistic individuals' everywhere.” And there's more. Keep reading to see what legal issues in gaming still loom large.
Dan Rosenthal, Contributing Editor at GamePolitics.com, said “We're talking about a set of protections that apply to everyone,” citing a recent Supreme Court decision that validated the right of the Westboro Baptist Church to continue protesting at military funerals. Krauss noted that these sorts of issues often stem from local politics, not Federal politics. To wit, Schwarzenegger v. Entertainment Merchants Association is the final leg of a court process that began in California through State legislation sponsored by California State Senator Leland Yee. “If you want to be heard, vote,” said Krauss.
“What drives this on a political level is that this is a new media,” said Buscaglia, noting that the apprehensions of “old people” to a new technology plays heavily into these sorts of issues. “People who don't use computers can easily be scared by video games, and fear is a powerful way to motivate voters,” he said.
Highlights of the more interesting queries from the audience:
- Would the Vernor v. Autodesk Inc. decision last September by the 9th District Court, which ruled that Vernor could not re-sell copies of the software due to the End User License Agreement (EULA) he agreed to, have an effect on used game sales? Greg Boyd, an attorney at law firm Davis & Gilbert, felt that the games industry would effectively settle the issue on a technical level, with initiatives like EA's Online Pass, long before the courts ever decided the question.
- Will we ever see legal involvement in the question of merchants pushing microtransactions versus groups who want things like parental rights to control one-click online sales? Buscaglia suggested that companies like Zynga know the demographics of the people who spend lots of money on their games in an addictive fashion, and that many of them probably can't afford it. Buscaglia said that he wouldn’t be surprised if the Federal Trade Commission didn't look into it at some point. Rosenthal added that there needed to be smoother transaction between virtual currencies and protections you get from credit card payments when you make those purchases. Krauss spent the first eight-and-a-half years of his legal career as a prosecutor, and said that he thinks we'll see greater scrutiny by the government.
- Will we ever see tort law applied to the destruction of virtual items? “You can never underestimate the ingenuity of plaintiff's lawyers,” Krauss said. “You can't have a tort without economic harm,” Boyd said, adding that the ability to “cash out” is important in these sorts of potential cases.
- Have EULA's become too complicated to be enforceable? Buscaglia asked the questioner if they read the lease on where they lived. “Do you think that's any less complex than an EULA?” he asked. Krauss argued that developers really care about the crafting of the EULA. “There's a reason for the EULA. We have to protect intellectual property,” he said. “Practically speaking...EULA matters.”
- Buscaglia told a story of enforcing the EULA for Red Orchestra, which he wrote. Buscaglia included a clause that said if someone was in breech of the EULA that the developer could suspend an account, ban a player, or call their mother. Someone was ping-bombing the Red Orchestra servers, making numerous free accounts after bans, and generally violating the agreement repeatedly. Through their internal system, Tripwire Entertainment was able to locate the person's IP address and his name...and so Buscaglia called his house, and actually spoke to his mother. Tripwire also had the player's internet service provider close his account for six months which “chilled the player out.”