Video Games and Regulation

Then

The history of the regulation of the video or electronic gaming industry starts very early with attempts to regulate youth and children’s access to video game arcades in the 1980s.  With curfew rules being still in effect in most communities, a logical extension was to limit the access to certain areas and buildings in the communities.  There was some concern for the content of some games but the concern was largely limited as graphic quality was very primitive so most concerns were quickly dismissed.  This changed and grew as the quality of graphics and the nature of games improved and changed.

The immediate concern as things improved was along the lines of sexual content, nudity and violence.  Graphic quality had improved into the 1990s and some content became more closely scrutinized. As much as there was a call to have government regulation, the gaming industry was growing at such a rapid rate the industry itself began to promote their own ideas of self-regulation with rating systems.  Such systems were initially placed by the Entertainment Software Rating Board (ESRB).  The rating had a basic component of E for Everyone, T for Teen and M for Mature.  In addition, it had over 30 different letter designations to give more specific indications of what the content of the software or game had so parents could see whether to not they wanted their child to own and play.

The video game industry because of this avoided most scrutiny until the mass shooting at Columbine which brought attention back to video games because of their supposed connection to the shooters.  The theory was that the games created the violence in the shooters but opposition voices stated that the shooters were already predisposed to violence so they were attracted to the games.  The research later supports the second theory but regulation was passed to make it crimes to sell games with adult or mature ratings to minors a crime although enforcement of these laws is nearly impossible. 

The battle at this point began as to whether video games are entitled to free speech rights or not.  Early efforts were designed to restrict sales of games but as the medium of gaming has evolved and changed it is nearly impossible to control the copying and distribution of games.   There still was some call to regulate content however as some games attempted to sneak adult content into mature rated games in the early millennium (notably Grand Theft Auto: San Andreas which snuck and sex orient mini game into its code).  The backlash caused a renewed effort at self-regulations of the industry which for a while seemed to stem the tide.

Now

The thing about rating systems is that each different medium seems to use a different one and the video gaming industry is no exception.  Unlike the Motion Picture Associations rating board which is independent of the film industry itself, the ESRB ratings board is a self-regulation body which is not independent. The free speech issue continues and so things are constantly a struggle between this idea of free expression and protection of children, youth and others. 

For the government, the choice has mostly been to let self-regulation continue in the video game industry as it is 1) the most cost effective way to regulate and 2) avoids the free speech controversy completely.  There is one notable exception to this rule which remains involves distribution of games to minors.  Even so this regulation while on the books is difficult to enforce in a world where parents can download the game but allow the minor to play it.  In addition, there are now thousands of independent game developers that put out a large amount of games often without ratings.  This creates the problem of how to regulate a game for distribution when it has no rating to begin with. 

The point then can be made that self-regulation has its weaknesses.  One is that independent developers are not necessarily required to get ratings so the content might be unknown and that it depends largely on the game developers as to how closely they want to comply with those self-regulations.  One other current ways of self-regulation content of video games is for members of the industry to follow a code of ethics.  Such codes however are often worse than organizational self-regulation as they are easier to break without penalty. 

  

One problem for government regulation though is that the gaming industry so rapidly changes that once regulations are passed they are often obsolete as deliver systems and game content often changes with so many games coming out in multiple platforms.  The current download structure for games on sites like Steam mean that the person downloading the game could be anyone and now there is no physical disc to regulate as well.  This means that laws designed to keep children form seeing forbidden material are possibly obsolete as there is no way to control a download system online.  There is no way to guarantee that the recipient is an adult and so game producers are left simply producing games, selling them and distributing them without any way to control who gets them. This makes the self-regulation of gaming ratings difficult as well.  The industry can slap a rating on the description, but it can be completely ignored.

The issue of independent developers also has other issues.  Often independents remain so because it is their design to produce games with questionable or objectionable content.  They become underground developers to produce games that would by any self-regulation standards would have such red flags they might not even be sold. 

Later

If there is a discussion that remains it is the issue of free speech.  The industry itself is pretty divided as to where the world of video games and regulation will go from here.  Underlying this issue is whether video games can be considered art or are they merely toys.  If they are classified as art then free speech rules come into play as they would for sculpture, paintings or drawings.  If they are merely toys, then toys have been regulated to death as far s safety and content with little regard to free speech rights.  The question is do video games cross the line into art as it is no longer an activity solely for children?  Does the artistic nature of game graphics make them art?  In 2011 the National Endowment for the Arts declared video games an art but is that sufficient to classify them as such? 

It’s the question from a legal standpoint that remains unanswered that could have the most effect on the gaming industry.  Games now involve a large amount of creativity from development, story writing, and graphics.  In many ways, it is a merging of many artistic forms into a completely new art form.

 

Critics argue that games are still ‘kid stuff’, but when some of the themes of games can be very mature and with multiple endings possible depending on the choices of the player in a sense it is multiple movies overlaid that is interactive, this definition is difficult to maintain.  Truth be told the fact that games often have a story nature that is much like any other story that would fall under free speech rules and then the graphic arts part of games simply makes the games seem much more like art than just ‘kid’s stuff’. 

I think this is why government regulators will continue to focus on distribution rather than content to avoid this fight altogether and the video game industry will continue to promote self-regulation for the same reason.  There is a lot at stake with this definition as to whether this media is art or toys.

Government regulators on the distribution front are encountering a system now that distributes view the internet and as that continues, this will make things very near impossible as controlling who games are distributed to and the underground system of independent games will compound this.

 

I have watch this fight from beginning to end and right now I think things will remain as a stalemate.  It is better described as a Mexican standoff as the government regulators could lose a lot of control if video games are classified as art.  On the other side, the gaming industry could face severe regulation if games lose the protection of ‘free speech” On the side of the unknown, could such regulations then be enforced given that the reason the governments of federal and state keep self-regulation in place is that without it they would be overwhelmed.

 

As time passes, technology and innovation might make games even more artistic and that might mean that government officials might sense that challenging the artistic nature of games more and more difficult which would lead them to continuing the situation of self-regulation of content and some regulation of distribution.  Future innovation may change this, but I don’t see too much changing until such innovation actually comes along.

References:

Skalski, and Skalski, P. (2007). Regulation, Electronic Games. In J. Jensen Arnett (Ed.), Encyclopedia of children, adolescents, and the media. Thousand Oaks, CA: Sage Publications. Retrieved from http://0-search.credoreference.com.libcat.ferris.edu/content/entry/sagecam/regulation_electronic_games/0

Lambe, and Lambe, J. (2007). Regulation, industry self-regulation. In J. Jensen Arnett (Ed.), Encyclopedia of children, adolescents, and the media. Thousand Oaks, CA: Sage Publications. Retrieved from http://0-search.credoreference.com.libcat.ferris.edu/content/entry/sagecam/regulation_industry_self_regulation/0

Warren, and Warren, R. (2007). Parental advisory labels and rating systems. In J. Jensen Arnett (Ed.), Encyclopedia of children, adolescents, and the media. Thousand Oaks, CA: Sage Publications. Retrieved from http://0-search.credoreference.com.libcat.ferris.edu/content/entry/sagecam/parental_advisory_labels_and_rating_systems/0