OMG! Ponies!

You have to admit – the headline is an attention grabber. It’s also true. Under New York’s new law, it is now illegal to sell or even loan a whole host of video games to a minor. The range covers pretty much any first-person shooter or adventure game. That includes heavy-hitters like Halo, Gears of War, and Resistance. All because of easter eggs. Wikipedia defines easter eggs as follows:

Easter Egg (virtual): A virtual Easter egg is a hidden message or feature in an object such as a movie, book, CD, DVD, computer program, or video game. The term draws a parallel with the custom of the Easter egg hunt observed in many western nations.

The most notorious Easter Egg of recent memory is the famous infamous Hot Coffee mini-game from Grand Theft Auto: San Andreas. Hot Coffee was so outrageous that it caused Sen. Hillary Clinton to denounce the hidden sexually explicit material in an otherwise innocuous game that otherwise offered no clue to the adult nature of the game. Well, except for the title named after a felony. And the whore on the front cover. And the three separate pictures of armed thugs (two on the front, one on the back). And the “Rated M” label on the front. And the “Rated M” label on the back that listed “Blood and Gore; Intense Violence; Strong Language; Strong Sexual Content; Use of Drugs.” And the ads showing Carl Johnson blowing things up and shooting at people with assault rifles. And the fact that every responsible parent in America knew what GTA was all about.

But, in Sen. Clinton’s eyes, parents had no way of knowing what evils lurked inside that little black DVD case. Eventually the hoopla died down. And then, this spring, all hell broke loose when a disturbed young man massacred his fellow students at Virginia Tech. Now, two months later, the Virginia Tech massacre has successfully been exploited for political gain in New York. Here is the new law:

S 235.22-A DISSEMINATING VIOLENT AND INDECENT VIDEO GAMES TO MINORS.

1. A person is guilty of disseminating violent and indecent video games to minors when, with knowledge of its character and content, he or she sells or loans to a minor for monetary consideration any video game which includes depraved violence and indecent images that are accessible to a user.

2. For the purpose of this section:

(a) “video game” means an interactive electronic amusement device, disk, cartridge or other object that utilizes a computer, microprocessor or similar electronic circuitry and its own monitor, a television set or a computer monitor, and such device or object is designed to allow a person to manipulate images presented by such device or object.

(b) “depraved violence” means any photographic, photo-realistic or similar visual representation or image depicting the rape, dismemberment, physical torture, mutilation or evisceration of a human being.

(c) “indecent image” means any photographic, photo-realistic or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors.

(d) “minor,” “nudity,” “sexual conduct,” “sado-masochistic abuse” and “harmful to minors” shall have the meanings set forth in section 235.20 of this article.
***
Disseminating violent and indecent video games to minors is a class E 2 felony.

This law is so vague as to outlaw the sale or rental of virtually any video game of recent memory rated T or higher to any minor. This law covers any violence in the game, potentially even character deaths, and renders the entire video game industry liable, from the lowliest GameStop clerk all the way to Redmond, WA. Here are the problems – and they are legion – with the law.

1. A person is guilty of disseminating violent and indecent video games to minors when, with knowledge of its character and content, he or she sells or loans to a minor for monetary consideration any video game which includes depraved violence and indecent images that are accessible to a user.

Who is doing the selling? Are we holding clerks legally responsible? Beyond that, what does “knowledge of its character and content” mean? Is the ESRB objective proof of “knowledge of its character and content?” If so, there is a very real possibility that a clerk who does not know about the Easter Egg could be held to have had the requisite mens rea for the crime.

More importantly, is who is liable. This law is not only targeted at GameStop. Target and WalMart are also within the scope of liability. The law doesn’t just stop there. GameTap and Gamefly are within the scope. After all, they loan games for monetary consideration.

Microsoft, Sony and Nintendo are also within the scope through downloadable content. If a 16 year-old downloads Quake over Xbox Live, is Microsoft liable? Is Sony liable for Resistance: Fall of Man? If the 16 year-old downloads Killer Instinct, can Nintendo be held liable? Interesting questions. It will be more interesting to find out if any of the Big Three want to find out.

(b) “depraved violence” means any photographic, photo-realistic or similar visual representation or image depicting the rape, dismemberment, physical torture, mutilation or evisceration of a human being.

According to Subsection (b), Mortal Kombat can no longer be sold to a minor. But it doesn’t stop there. Many of these terms are vague. “Photo-realistic or similar visual representation” sounds good, but what qualifies as “similar?” Back in the day, the aforementioned Mortal Kombat game was simultaneously lauded and denounced for its then-great graphics. Does it still qualify? The old saw about beauty being in the eye of the beholder was never more true.

How do you define “dismemberment” or “physical torture”? Does tying up a princess and dangling her over a lava pit count? If so, look out Nintendo. While we’re on the subject of Mortal Kombat, how about two other franchises that stole my laundry money: Tekken and Soul Caliber. Does Voldo break the law? How about Heihachi? Of course, even the Galactic Gasbag isn’t safe. Let’s not forget the torture droid from Star Wars, the cut-scene of which was in X-Wing. Does X-Wing break the law?

Does blowing someone up count as “dismemberment”? After all, there is an argument that an RPG to the face is the ultimate form of dismemberment. DOOM, Quake, Unreal, Goldeneye, and Perfect Dark Zero are now potentially illegal. Chainsaws count as “dismemberment”; do swords count as dismemberment? Are Prince of Persia, Ninja Gaiden, Shinobi, and Red Steel illegal? How about Knights of the Old Republic?

Theoretically, one could posit the defense that the characters are not intended to depict human beings. That would work for Zelda (and possibly Mario Bros.). But what about the rest of the gaming universe? Of course, it’s now illegal to allow a minor to download Quake Arena, what with the goal being fragging your opponents. But DOOM and Quake present problems. Kill all the aliens you want. When you turn into gibs after dying, though, you’ve broken the law. Shouldn’t there be an exemption for the character dying? If not, Tomb Raider and Prince of Persia cannot be legally sold to a minor.

(c) “indecent image” means any photographic, photo-realistic or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors.

I can get really outrageous with Subsection (c). An “image of a person or portion of the human body which depicts nudity [or sexual conduct]“? Ladies, you’re showing too much ankle.

Glib remarks aside, how about a cut-scene which shows a naked woman from behind and only shows the small of the back and higher? That is permissible on prime-time broadcast television. Under this law, it’s illegal. And what is “sexual conduct”? Is heavy-petting “sexual conduct”? Groping? Exactly how far can a character “score” [pun intended] before it is illegal to distribute the game to a minor?

The bottom line is that this law is terribly drafted.  It is overbroad, even if it is a constitutional restriction on free speech.