Last week, Rep. Fred Upton (R-Mich.)introduced H. R. 1531, the "Video Game Decency Act." This bill is in response to the Hot Coffee controversy, which refers to the sexually explicit unlockable mini-game in Grand Theft Auto: San Andreas. Sen. Brownback (R-Kan.) has also introduced a bill to deal with this controversy (see my 2/15 post on Sen. Brownback's bill). His bill would require the Entertainment Software Ratings Board (ESRB) to play the "entire game," a measure that shows Senator Brownback and his staff have never played a modern video game. Unlike classics like Mario Brothers, modern games don't play from left to right, level by level. Instead, they are worlds of infinite possibilities. You can no more play the "entire game" than you can play every game of football. Rep. Upton's bill avoids this pitfall by mandating that unlockable portions of games must be disclosed to the ESRB. Yet the ESRB has already included this in its contracts with game publishers:
Every publisher of a game rated by the ESRB is legally bound, by contract, to disclose all pertinent content during the rating process, including, as of July 2005, content that may not be playable but will exist in the code on the final game disc (i.e. "locked out")...incomplete disclosure...could result in revocation of the original rating and the imposition of sanctions, including monetary fines.Rep. Upton's bill avoids the First Amendment violations and industry-paralyzing consequences of the the Brownback bill. However, Congress is lagging nearly two years behind the industry, which has already changed their policy to conform to changes in the technology, leaving one to wonder if this bill has any purpose at all. Certainly it's already illegal to commit fraud or a break a contract. It seems as though Rep. Upton would like to claim credit for a policy change that the gaming industry has already made. Raters such as the ESRB are concerned about accuracy, so their policies will continue to change to make sure that accuracy is maintained. Contracts, not Congress, have already solved this bug in the ratings system.