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Here, at the Hindquarter of Progress on Game and Player

Here, at the Hindquarter of Progress

Michael Ubaldi  //  July 29, 2008

New York gets gaming exactly wrong.


he law recently enacted by New York Governor David Paterson's signature differs from contemporaries in precisely how it curtails the First Amendment. Alongside electronics stuck inside consoles sold within the state by 2010, all video games sold from New York storefronts must have, "clearly displayed," a designative rating.

From which system? For the moment, the Entertainment Software Rating Board's, supported by the industry, including the Entertainment Software Association and Electronic Merchants Association. That can change, as an appointed "advisory council" reviews the private oversight of ESRB and sees fit to "make recommendations thereon."

Until this point, every state law attempting to regulate video games has been stillborn, overturns following injunctions. This one has aroused condemnation from advocates of civil liberties or the industry — but as yet no lawsuit.

The video game industry reserves a right to abandon ratings tomorrow.More curiously, the site GamePolitics reassured readers that "As long as a video game available at retail displays an ESRB rating and its associated content descriptors (and they already do), the retailer is in compliance." Whoa, there. That is uncharacteristically generous: on the order of defending another, hypothetical First Amendment violation by claiming the patrol officer isn't actually escorting you into 9:30 Mass because, after all, you're a good Catholic.

ESRB, ESA, EMA et al. aren't government agencies. Nor are video game ratings anything more than the product of negotiated agreements between developers and retailers. Granted, ratings and parental controls are conceived with state and federal powers in mind; but only to propitiate legislators hungry for regulation. ESRB ratings exist to ward off state intrusion, not invite it, and certainly not to fall into "compliance" with it. Such is a fact on which freedom of this particular expression depends — the video game industry reserves a right to abandon ratings tomorrow, never again to use any classification system or its damned, silly stickers.

Surely the last thing on anyone's mind, this is worth arguing — and more so every year, as media brings consumers closer to developers and their products. Busybody state aside, why are games rated? So parents and guardians are aware of contents that may be unsuitable for children and minors. Is this information a reasonable, private demand? Yes, of course. Why would parents be otherwise unaware? Fifteen years ago, news on unreleased video games was a) scanty and b) confined mostly to print. ESRB was established in 1994, Sierra On-Line's first website launched in 1995. Why self-regulation? About that time, Congress threatened the industry, Constitution-shmonstitution.

Where is the level of information today? Stratospheric. Dozens and dozens of websites keep tabs on games for years before release. Developers are more than happy to offer previews, in words or video footage. Coverage often focuses on combat — which is to say, violence. Local libraries can oblige the 30-odd percent of households without internet access. By opening day, not a soul who's read two articles should be surprised that Grand Theft Auto graphically celebrates antiheroes, Fallout 3 involves custom amputation of mutants, or that whatever Shigeru Miyamoto's been up to delights at any age.

Many of us will be surprised by the changing definition of parents, insofar as it now includes gamers.Effectiveness of this depends on whether it is parents doing the reading. Hue and cry holds that it isn't, though that is expected when the state declares itself conservator of innocence. But many of us will be surprised by the changing definition of parents, insofar as it includes us. Three of my coworkers have children. Two of the three own Wiis and one has been an avid gamer over the years. All three are consummately web-capable. If they wanted to know what a game might expose Junior to, they could, no sweat.

One step further — legislators broadly denigrate ESRB ratings for easy circumvention. Yet the law is silent on an adult acting as courier, purchasing a Mature-rated game for an unauthorized, bouncing baby sixteen-year-old. And with news of UK retailers sneaking titles to minors despite harsh penalties, one wonders how Albany will enforce the law but through dragnets with guns drawn.

One more step. Regulation by both the industry and the state fails its purpose; transparency and availability of information increases; and parents are more likely than ever to read that information, being regular gamers themselves. Ratings would be superfluous — no developer could hope to promote its game without divulging the type, the character, the intensity of the experience. The market would have corrected itself.

Seen in a distant future, when New York's manhandling of video game makers rests on this obtrusive pap from bill sponsor, state senator Andrew Lanza: "Our children are spending too much time watching television and playing video games without any adult supervision, and" — and, and, and — "we cannot just sit back and allow them to be exposed to this senseless violence." His house is your house, as the saying goes. Dear Lord.

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