ISS 210 Society, the Individual, & Video Games (W1)
ISS210 Society and the Individual: Video Games
Topic #2: Video Games and the Law
MSUVideoGames@gmail.com
Today’s Questions • What legal
protections do video games enjoy?
• How did we get there?
• Civil, constitutional, and commercial aspects
Types of Law • Criminal law
• Government (state/federal/local) decides to prosecute you for a crime (violating a law)
• You lose, you get sentenced (prison, probation, fine, etc.)
• Prosecution must establish guilt “beyond a reasonable doubt”
Types of Law • Civil Law
• Individual (person or corporation) decides to file suit against someone for an alleged harm
• You lose, you pay a fine (never go to jail)
• Liability determined by “preponderance of the evidence”
Canonical Example: OJ Simpson • October 1995:
Not guilty of murder
• February 1997: Liable for wrongful death of Ron Goldman ($33.5M damages)
Civil Law and Games • Watters v. TSR, Inc.
(1990): Manufacturer of Dungeons and Dragons did not violate a “duty of care” in publishing/ distributing the game
Liability and Video Games • James v. Meow Media, Inc. (2002) • Parents of students killed in a school
shooting sue companies who produced video games and websites
• Plaintiffs claim that these things desensitized the assailant and caused his violence
• Not liable: Companies could not foresee that this would happen, so no duty of care
Duty of Care • Foreseeability • Social utility of defendants’ actions • Magnitude of burden of guarding
against the injury or harm
• Consequences of placing burden on the defendants
Constitutional Law • First Amendment: “Congress shall
make no law…abridging the freedom of speech…”
• Supreme Court interprets the Constitution and exercises judicial review
• Gitlow v. New York (1925): First Amendment applies to laws passed by the states
Freedom of Speech • “No law” isn’t literal (for most) • Ginsberg v. New York (1968): A law prohibiting
the sale of obscene material to minors is constitutional
• What is obscenity? • Miller Test (three prongs):
• Community standards • Patently offensive conduct • Lacks any serious value
Brown v. Entm’t Merchs. Ass’n (2011) • California passes a Miller-style law
aimed at violent video games
• Must be 18 or older to buy/rent (or have a parent/guardian-esq person do it for you)
Brown v. Entm’t Merchs. Ass’n (2011) • Supreme Court say no dice (7-2 vote,
Justice Scalia writes opinion)
• Video games are considered protected speech under the First Amendment
• Regulation possible, but needs to be narrowly tailored to suit a compelling interest; CA law fails both of these
Commercial Aspects • Patent law: Protects
processes and machines that you invent
• Copyright law: Legal basis for protecting creative, artistic, and written works
Example: Pacman v. Munchkin
Example: Tetris v. Mino
Tetris Mino Dr. MarioDr. Mario (patented)
Example: Golden Tee vs. PGA Tour
Example: Crazy Taxi v. The Simpsons: Road Rage
More Commercial: Right of Publicity • Famous people have the right to
control commercial use of their likeness
• Significant disagreement among courts as to how much is allowed and what “test” to use
• Supreme Court has not resolved these legal conflicts and appears uninterested in doing so
Davis v. Electronic Arts • Sequel case to Keller v. EA (2013) • Keller = NCAA football players
have right to their likeness
• Davis = So do NFL players (historic players not licensed)
• Denied review by Supreme Court in March 2016
Other Examples
Ellen Page (The Last of Us)
Other Examples
Lindsay Lohan (Grand Theft Auto V)
Other Examples
Manuel Noriega (Call of Duty: Black Ops 2)
Summary • Today: Video games and law • Readings
• Assorted newspaper articles about Brown v. Entertainment Merchants
• Incredible Technologies v. Virtual Technologies
• Next Time: Good or bad for you?