Government Report 97: Impact on Game Developers
June 19, 1997
Page 3 of 3
>Lessons in Decency for Game Developers
The implications for computer game developers are obvious, but I'll point out a few. Graphically violent but (currently) legal games like Doom and Duke Nukem would be in clear violation of the CDA if played over the Internet, even when played by consenting adults. Computer Game Websites would violate the law if they posted graphics or cover art that fell within the very broad definition of "offensive," even if the same "offensive" cover art is utterly legal on retail store shelves. And selling the game online would be illegal, even if selling it in the store would be legal.
Backers of the CDA argued that they wouldn't prosecute anyone who posted indecent or offensive works of "artistic value." But they had to acknowledge that the CDA included no provision to prevent such prosecution.
The stakes in the case were high, but the victory was total. It's important for computer game designers to pay careful attention to the way this victory was achieved.
The plaintiffs who tackled the CDA knew that elected officials and judges tend to be much older and much less computer literate than the general population. They needed to bring the judges up to speed on the distinctions of the online world, and they had to do it quickly. So they brought in some high-powered computers, and gave the judges direct, hands-on experience of the Net. The judges agreed so completely with the plaintiffs that their ruling sounded almost exactly like the CIEC briefing books.
The judges concluded that, "the Internet may fairly be regarded as a never-ending worldwide conversation. The government may not, through the CDA, interrupt that conversation."
The federal judges have heard America e-mailing. But now can we get them to play a few round of multi-player Warcraft? Son of CDA
The collapse of the CDA has not deterred its staunch allies, who see it as failing because it was too broadly drawn. Senator Orrin Hatch (R-UT.) has promised to revisit the issue with a new, and even more tightly drafted "virtual child pornography" law. The bill is aimed not at images of real children, which are already illegal, but at computer-generated images.
Courts have consistently said that First Amendment rights end when children are endangered. They have upheld the government's ability to outlaw actual child pornography to protect actual children from actual exploitation and abuse.
But the new Hatch law would extend to virtual child pornography, including "depictions" of the "buttocks of any minor, or the breast of any female minor," even if no actual children were exploited in the making of the "depictions." Presidential Candidate Robert Dole pledged to make it a campaign issue, but he didn't get much mileage out of it.
Civil libertarians fear that this bill could outlaw everything from family snapshots to cartoon characters without protecting a single actual child. Sonic the Hedgehog and his kid sidekick Tails wear no clothes except shoes. Bart Simpson is fond of mooning on network TV. Dot of the Animaniacs goes topless. Bride of CDA
In other CDA news, New York Governor Pataki signed into law a bill similar to the CDA. New York Bill S00210 makes it a crime to use the Internet to send "indecent" material to minors, regardless of any redeeming social value in the material. This would presumably include information on birth control, reproduction, and lots of other sensitive topics.
The ACLU has promised to stop this one, too. However, with other states creating their own CDA spawn, and about a dozen already passed into law, the rights organization has its hands full. This is the dark side of devolution of power to the states. It's much harder to curb many abuses at the state level than one at the federal level. The Political Calculation
The CDA passed Congress with bi-partisan support and President Clinton signed it into law. But it's unlikely that all the votes came from die-hard supporters. Sen. Patrick Leahy (D-Vt.), who fought against the CDA, said he knew many elected officials who voted for the CDA but were relieved to see it overturned by the courts. It's quite possible that the winning margin came from elected officials who made the political calculation that they had to vote for it or be attacked by their opponents as favoring cyber-smut over children. With a little bi-partisan cooperation this could have been avoided altogether.
We need to prevent this sorry state of affairs from happening again, and the way to do that is to understand how it happened the first time. The CDA rose from the slab as a direct result of the "Cyber Porn" article in Time magazine. This insult to objective journalism began with a cover photo of the shocked face of a horrified child bathed in frightening green light, and ended with utterly erroneous conclusions. It made the mistake of basing its premise on a the Rimm Study, a fatally flawed survey done by a student researcher who magnified the presence of Net porn beyond all proportion, and got a staggering number of facts wrong. The study was so wrong-headed that even computer novices saw through its errors. It's staggering that it ever got beyond the most basic fact-check stages at Time.
Time now admits the error, but its retraction did not have a fraction of the space and shock treatment of the initial story. The Cyber Porn article had a powerful impact that still reverberates though the country. Many people who do not use the Internet now fear that pornography is so pervasive on the Net that their children would have trouble avoiding it- an utterly false conclusion supported by the story.
If the public were not so shamelessly misled, Congress might be more willing to take a principled stand. But the public would be immune to such sensationalistic pandering if more people used and understood computers.
The computer community has got to be capable of rapid responses to such nonsense, but we must take proactive steps to educate not just our elected representatives and judges, but the general public as well. One way to do this is to make computer use as common as TV viewing-- by getting computers into the hands of all kids.
Which leads us to the next topic: 3) Will All Kids Get Computer and Internet Access?
The White House has presented several initiatives to create more technologically literate people and increase America's base of high-skill, high-wage jobs by educating teachers about computers and the Internet.
The 21st Century Teacher Initiative aims to educate teachers about computers and the Internet by teaming 100,000 technologically literate teachers with 500,000 of their unwired counterparts. It has the backing of just about every educational group from the NEA to the PTA, and should begin in earnest right now (end of August).
This comes on top of the Technology Learning Challenge, a Presidential initiative to create a public-private partnership with businesses and telephone companies to wire every public school by the year 2000.
Another Presidential executive order directed federal agencies to transfer surplus computer equipment to schools and nonprofits. It also encouraged federal agencies to direct computer literate employees to assist teachers in learning to use computers effectively in the classroom.
President Clinton's $2 billion Technology Literacy Fund proposal is unlikely to receive complete funding from Congress, if it's funded at all. As the SPA reports, the request "gives the administration the political and rhetorical upper hand on this issue."
There are outstanding long-range implications to making every kid in America familiar with computers and the Internet. The more kids get their hands on computers, the more their teachers show them the cool things to do with computers, the more they learn to navigate the Net, the better for our industry.
Kids who are excited by computers at school are more likely to agitate for having a computer at home. Sometimes they even prefer them to set-top video game boxes.
Classrooms that have computers are likely to buy educational games, and parents with computers sometimes make duplicate purchases of the same software so their kids can use it at home. Many teachers also like using software toys that are not curriculum-based and blur the line between educational software and game; products like Sim City and Flight Simulators.
All this adds up to more sales, and hastens the day when computer entertainment penetrates the mythical mass market, where product sales are measured in millions instead of tens or hundreds of thousands.
The House and Senate are still trying to pass their 1997 appropriations bills. The House is funding technology for the schools at last year's levels, lacking even an increase for inflation. The Senate is expected to follow suit. The SPA has been trying to get Congress to do it's work on time. They report:
"The real question is whether Congress will be able to pass a final bill by Sept. 30, the end of the fiscal year. If not, federal education technology funding could be wrapped into a "stop-gap" spending measure called a continuing resolution. When this occurred last year, education software sales tumbled as schools curtailed purchases until they knew
precisely how much they were to receive from Washington, a full six months after the legal deadline."
Some states, most notably California under Governor Pete Wilson, have dramatically increased educational technology spending. 4) Can We Stop Piracy?
The more games we sell, the more our games go from being targets of small time pirates, and the more they become exploited by big-league counterfeiters.
The Software Publishers Association (SPA) has taken the lead in tackling these issues, including audits of a college's computer programs and a suit against a person alleged to have posted pirated software to the Internet. Working with Internet Service Providers (ISPs) allows the SPA to track down the person responsible for the upload. The Internet's cherished anonymity may not be as absolute as it was once believed.
Cooperation between the U.S. government, the SPA, and customs officials overseas have netted larger fish, including raids in Singapore and the arrest of alleged Hong Kong pirates accused of making compilation CDs containing $20,000 worth of CDs. Market surveys have turned up many more pirate outlets, so there will very likely be lots more to the anti-piracy news.
The best news was that the Clinton administration managed to use $2 billion in trade sanctions to strong-arm the Chinese government into closing 15 pirate factories and taking away the business licenses for 12 factories. The SPA promises to continue the fight to get the Chinese to enter the CD-ROM verification program. 5) Are Computer Games Eligible for R&D Credits?
A Research and Development tax credit expired in 1995 and wasn't extended, possibly due to the budgetary chaos. When the House passed the Small Business Job Protection Act, the R&D credit was conspicuously missing. Corporations and trade groups, including the SPA, are lobbying to get the credit extended, arguing that it's vital to competitiveness. They have gotten the Senate Finance Committee to put in an amendment reinstating the credit, but the Senate would not make the credit permanent. Instead, the Senate increased the credit for slightly less than one year, and didn't make the credit retroactive for the time they missed, creating a one-year gap in the credit. The SPA is fighting to make the credit permanent, and the fight goes on.
Hey, how do game developers get some of them there R&D credits? Now that the Marines are using Doom as an official squad-level training tool, we can claim our R&D is as important as anyone's. 6) Are Shrink-wrap Licenses Legal?
In other court action, a three-judge appeals court panel reversed a lower federal court and upheld the enforceability of standard form, "shrink-wrap" license contracts.
The SPA, whose arguments were largely adopted by the court, saw this as "an important victory for software companies to protect trade secrets and offer flexible terms to customers."
The case revolved around a company called ProCD, which created a CD-ROM database of nearly one hundred million business and residential address and telephone listings.
The shrink-wrap license said that the CD-ROM could only be used for personal, and not commercial purposes. Computer science grad student Matthew Zeidenberg used the ProCD database with his own search engine on his popular World Wide Web site
The first federal court ruled for Zeidenberg, saying that shrink-wrap licenses are not legitimate contracts because users can't read them before they buy. Further, the court ruled that the 1976 Copyright Act pre-empted its enforceability. But the Court of Appeals ruled that end user license agreements can supersede the 1976 Copyright Act.
The court wrote, "a copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights'" such as those created by copyright."
The case will probably be appealed to the Supreme Court. Conclusions: What Can We Do?
Again and again we see the same problem: too often the government relies on fatally flawed information like the Rimm Net porn study that fooled Time magazine, or NIMF's conflict of interest study on the computer game industry ratings. The conventional media sometimes sets the record right, but they just aren't savvy enough to do so all the time. They don't see us as a big enough industry to warrant a serious analysis of the information the government swallows as "facts." (The media doesn't always do thorough analysis of information on much larger industries, like the Internet.)
Other industries set the record straight with PR flacks and trained industry pit bulls who tenaciously communicate their point of view to the politicians, press and public. We don't have anything remotely like that. Computer game developers need a computer industry PR representative and lobbyist.
The bigger and more profitable our industry becomes, the more we'll attract government attention. We can no longer rely on our obscurity to avoid potentially hazardous regulation. In the past, computer game developers were caught off guard by the government's scrutiny of our games and of our vital new technologies. In the future, we can continue to sit out the fight and hope for the best, or take action and demand a place at the table.