How long until free to play and in-app purchases are regulated?

This is going to be a relatively short post, because two other writers have already a lot of my work for me.

Step 1: read Rob Fahey’s editorial on “How to control free-to-play spending?

Step 2: read this Wall Street Journal feature: “Mom, please feed my apps!

Step 3: let’s have a quick chat… Continue reading How long until free to play and in-app purchases are regulated?

Games Law Update: April 2012

Hi everyone – here’s your dollop of games law news over the last month, curated by yours truly…


Is Australia getting grown up about age ratings?

This is a guest post by Lachlan Kingsford, an Australian games scholar and the brains behind Nerdy Gentleman.  I asked him to tell us a bit about the latest state of play regarding Australian games classification, which I’ve written about previously.

There is something rotten with the state of gaming in Australia. Unlike other entertainment mediums, games can not be given an R18+ rating or classification. This has two practical effects: Games that are deemed too mature (generally due to violence or sexual references) are banned, making their sale illegal, their importation illegal and in Western Australia, their possession illegal. Other games that have been generally rated R18+ equivalents in other markets (such as The Witcher 2) are downrated to MA15+ to get them through the system. Continue reading Is Australia getting grown up about age ratings?

The ESRB mobile app rating system: is it missing some teeth?

The first move towards pan-mobile industry age ratings began last week – but I’m not sure it got off to a roaring start.

The move was made by two US bodies: the Entertainment Software Ratings Board (ESRB – the body responsible for the self-regulatory model of games age ratings in the USA) and CTIA (“The Wireless Association”). In a nutshell, they have introduced a mechanism by which developers can fill out a questionnaire and then get their app rated on all participating appstores.

Continue reading The ESRB mobile app rating system: is it missing some teeth?

The US violent games case: Americans are from Mars, Europeans are from Venus

Earlier this month, the US Supreme Court handed down its decision in Brown v EMA, AKA the Californian ‘violent’ games law case, AKA Arnie vs all gamers, everywhere.  The law, if upheld, would have given lawmakers the ability to ban certain games and place stringent requirements on others. However, the US Supreme Court struck down the law on the basis that games are protected by the free speech provisions of the US Constitution and that the Californian law was unconstitutional.  So far, so good.

Continue reading The US violent games case: Americans are from Mars, Europeans are from Venus

Games/Law digest, March-April 2011

It’s been a busy time in the games/law world over the last couple of weeks. Here’s some highlights:

(1) Sony settles with George Hotz

Back in January this year, news broke that a group of hackers, led by George Hotz, had jailbroken the PS3. Sony were unhappy bunnies, so they sued Hotz and the other hackers. There followed a series of legal skirmishes, including jurisdictional challenges by Hotz and attempts by Sony to gain data from third parties like Twitter and Google on users of the hack. Now it seems that Sony and Hotz (plus presumably the other hackers) have settled their dispute. The terms of the dispute were not made public, but I would guess were fairly favourable to Sony since Hotz was in a relatively weak legal and tactical position. It will very likely have included Hotz having to promise not to distribute or encourage the PS3 hack, and may even go so far as Hotz helping to eliminate or at least neutralise the hack altogether.

In any event I think was a win for Sony, whose objective was clearly both to try to stop the hack as well as to send a message that it will not accept this kind of behaviour. Clearly people have different views as to whether litigation was the right route to take (my original post on the subject raised some of those views in the comments), but from my perspective Sony did the right thing here.

Mind you, Mr Hotz doesn’t appear entirely reconciled with Sony – he has apparently donated $10k to the EFF and made comments such as “At the end of the day, something I take comfort in. The PS3 got OWNED.”

(2) Class action lawsuit against Apple over in-app purchases

This is very interesting indeed. Apple is facing a lawsuit for alleged failures to exert proper controls over in-app purchases with the effect that unauthorised persons (including children in particular) can run up substantial unauthorised bills. The lawsuit is reportedly being brought by a US individual who is seeking class action status (which would basically mean that everyone in the US who is affected by the issue joins the lawsuit).

Make of that lawsuit what you will, but there clearly has been a rising tide of concern regarding the controls on in-app purchases. News reports of children running up huge bills began to surface last year, which was followed by a US congressman making public comments about his concerns with this issue. This was then followed earlier this year by the FTC announcing it would investigate the issue. In responses, Apple has already introduced new changes, such as requiring a password to be entered within an app for a purchase to be processed.

In legal terms, in-app purchases raise a whole can of worms which I’ll have to write a separate post about. But in a nutshell the problem is something like this:

  • Apple has a contractual relationship with the iOS device owner, pursuant to which that owner is given an iOS account and password.
  • When the owner uses that device to purchase an app or to make an in-app purchase that constitutes a separate contract between the owner and Apple.
  • At the moment, that contract is meant to be evidenced by the owner inputting his/her account name and password – but historically Apple has only required them to be inputted periodically rather than every time anything is purchased. This is what it is now tightening up.
  • If the account name/password has to be input every time a purchase is to be made, in principle that will stop any random person/child from purchasing an app/virtual goods without authorisation.
  • But what about where a child or other person has the owner’s account name and password already? The owner doesn’t actually know that he/she has purchased anything and therefore complains to Apple. On the other hand, Apple has no way of knowing that this is not a legitimate purchase. 
  • The strict legal answer to this problem is not clearcut. On the one hand, you could argue that there is no contract here because the legitimate owner has not entered into the purchase. Or you might point to specialist legal doctrine like mistake to say that the purchase should not go ahead. On the other hand, Apple could argue that if the owner gives his/her details to a third party, even to a child, then it has authorised that third party’s conduct and should be bound by their actions.
  • While the FTC and others like me are grappling with the legal issues of course, Apple is no doubt working on technical solutions to the problem. And, in the long run, technology may well provide a definitive answer – biometric scanning being one example.

Zooming out a little, to my mind this is really just one strand of a larger legal issue which has been lying latent for some time: the legal regulation of apps (and, by extension, virtual goods). Other strands which have yet to be explored include age ratings for apps and (my favourite subject) the legal status of virtual goods. Another, which we’re beginning to see more about now, is how far the terms and conditions of the different app stores can stand up to scrutiny. For example, just last week IGDA published formal complaints about the Amazon Appstore terms and conditions . I think we’re going to see more on these topics in 2011…

(3) More tech company patent battles

Patents seem to be at the forefront of the minds of a number of different tech giants at the moment. Earlier this year a legal a legal battle erupted between LG and Sony over Bluray technology, including in the PS3. Nokia has also sued Apple. Apple has sued HTC. Now Apple has sued Samsung, alleging both patent and trade mark infringement (of what it’s not clear at the moment, since I’ve not seen the court documents published yet).

In a way, all of this was to be expected really. Software developers still have relatively interest in patents, which are really still designed for industrial applications (notwithstanding movements afoot in Europe, and rules already in place in the US, to encourage software patents). But for hardware manufacturers patents are a very important part of their IP arsenal. And when very lucrative new technology comes out like the recent boom in smartphones and now tablets, you can be sure patents will figure in everyone’s calculation. These tech companies want to ensure there really hasn’t been copying of their products by their rivals, plus there is always the lure of commencing a tactical patent infringement lawsuit as a business weapon against your rivals.

So, we can expect more of these lawsuits in the future and, at some point, some of them will probably get to trial and we’ll see if any legal fireworks are let off at that point…

(4) ESRB changes age rating process

I understand that the ESRB – the games classification system in the US – has been amended in two important ways. First, a new automated online form has been released. Second, and more interestingly, apparently there is now a new rating process for console DLC.

Historically, ESRB ratings have only been required for ‘full’ games and any retail expansion packs – not downloadable DLC. However, the distinction between expansion packs and DLC has of course become largely academic in the modern day – which has led to a gap in the child protection rules for game content. That is what the ESRB is now seeking to plug.

BUT, really I think this is another can of worms for the following reasons:

  • How is DLC actually to be rated? Will it use exactly the same rules as with games? 
  • What happens if the DLC has a different rating to the game itself?
  • How will the third party download platforms, like Xbox Live, be involved to make sure the DLC age ratings are made sufficiently prominent?
  • Who is going to pay for all of this and how will the ESRB cope with the additional regulatory responsibilities?
  • What does “DLC” actually mean for these purposes? Does it mean all episodic content, however small? What about, say, map packs? What about virtual goods purchasable within the game?
  • Most importantly, console DLC is all very well – but what about the vast casual and mobile games world?  More regulation is needed there, too.

The original post is a little inaccurate – sorry.  I understand that actually ESRB regulation already covers console DLC when necessary.  The official ESRB guidance is that “Downloadable content…that will be appended to an existing, previously-rated product need only be submitted to ESRB for rating if its content exceeds that which is in the existing “core” product.”  So, as long as the DLC is of the same standard as in the original game, then no additional ESRB rating is required.

The new changes discussed in the original post actually apply just to digital games bought through console storefronts like Xbox Live, where the ESRB has now implemented a new streamlined process.  That said, as I understand it at the moment that changee does not extend to non-console casual games or mobile games (e.g. iOS or Android games – albeit both have their own ratings systems already.

I’m now thinking that hopefully you guys would find it helpful to have a slightly more in-depth look at how ESRB regulation works, so expect another post on the subject soon…!

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Medal of Honor, Games Classification and Free Speech

I’ve been meaning for some time to write about two things: (1) EA’s stunt over introducing the Taliban into Medal of Honor as a playable faction, and their subsequent u-turn; and (2) the pending US Supreme Court case over games classification in California.  In both cases, I am v interested in what these developments mean for the freedom of creative and political expression in games.

Now I don’t need to, because Ian Bogost has written a very thoughtful post on Gamasutra about these issues.  If you have 5 minutes, I’d encourage you to read it.

(via Jim Rossignol at RockPaperShotgun)

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Analysis: are age ratings coming to social and mobile games?

Are we seeing the start of a trend towards governments extending their games classification rules to mobile and social games?  If so, this is going to cause some serious friction with the games industry.

Examples: in August, the Australian Labour Party promised (if re-elected – which now looks highly likely) to apply its notoriously restrictive games classification laws to mobile games, which reportedly could cost between Aus $470 (£273) and Aus $2040 (£1187) per game – ouch.  The Government is said to be “examining the issues“.

Next, reports that Korean authorities are now blocking an increasing number of freemium games for failure to seek age ratings.  Clearly, freemium these days is one of the main ways in which indie/social/mobile games are distributed and seeking an age rating for them would be a time and money cost to the developer.  Apparently this may also cause problems for Valve’s Steam (and presumably other digital distribution platforms too) which do not pay for age ratings at the moment.

In the UK, games classification is governed by the Video Recordings Act 1984 (as refreshed by the Digital Economy Act 2010), which is currently administered by the BBFC but due to change to the Video Standards Council next year (which will then apply PEGI classification rules – somehow).  In principle, mobile and social games are “video works” under that Act just like more traditional forms of games – and therefore there is a good argument in law that they must be given an age rating before they can be sold to the public.

I think we are going to see more of these announcements in the short/medium term.  But, even if we don’t, what these examples show is that there is an issue here:

  1. Governments want to make sure that all games comply with their games classification laws in order to ensure that childen are protected.  In fairness, there may well be some social/mobile games which are inappropriate for children, which would need to be classified if they were ‘traditional’ games and therefore need to be controlled.
  2. BUT, complying with games classification regimes costs the developer/publisher time and money.   It is one thing to demand this of larger games titles which are better resourced, but arguably it is another thing entirely to demand it of indie/social/mobile games which might be released on a shoestring budget and depend on a long tail to be profitable.  Or, look at it this way: would Doodle Jump or Angry Birds have been released if Lima Sky or Rovio respectively had to seek prior games classification in every target market?

How could this play out in the long term?

  1. Games classification authorities insist that games are classified.  This will have a negative effect on some developers and might even persuade some not to release games in difficult countries.
  2. Games classification authorities are persuaded to use a ‘light touch’ model for smaller value games.
  3. Some form of industry self-regulation.  At the minimum, devs may realise that they don’t have a completely free artistic hand when it comes to making the next generation of social and mobile games.

Of course the problem is that there is absolutely no joined-up thinking when it comes to games classification world-wide.  You have ESRB self-regulation in the US and then you have PEGI-based classification in most of Europe (including the UK shortly).  Then you have a multiplicity of different games classification authorities in other countries, which can take very different decisions to each other (more on that here and here).

So, in the short term, games companies are going to have to continue to deal with a regulatory maze when it comes to games classification, which the authorities won’t assist if they continue to push for regulation of absolutely all forms of games. 

In the meantime, a few practical points:

  • Work out your projected target markets (say where you expect to sell 10% or more of your products)
  • Make sure you have worked out the games classification position in those markets and whether the associated time/money cost in complying with their classificaiton rules justifies the release there (if need be, have a word with a friendly lawyer)
  • Contact your publisher (whether a traditional games pub or perhaps Apple etc) and see if they can assist

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EA courts controversy with Medal of Honor ‘Taliban’ playability

News has emerged that the next Medal of Honor game, EA’s wannabe answer to Acti’s Modern Warfare, will permit gamers to play as the Taliban in multiplayer mode.

At which point, various people (including me) raise an eyebrow and conclude that this is quite deliberately intended as a media stunt (as was Modern Warfare 2’s infamous airport level).  So no doubt there will be a media firestorm, which apparently has already been kicked off by Fox News.

But – and this is the reason for me writing this post – it does make me wonder whether games companies are fully conscious of the fact that, by using these kinds of stunts, they are courting increased regulatory scrutiny of games in the future.  Yes, there may well be a valid explanation within the context of the game, and in any event you can always point to that old hoary old chestnut, the “it’s just a game” argument, but most non-games playing people won’t understand.

And generally it’s non games-playing people who write the laws and regulations by which games have to abide.  One of the most important of those are games classification laws, which govern how and when a game may be given an age rating and sold in a country.  More importantly, they are also the people who will apply those rules to actual games.  Now, in the West these days games classification rules are unlikely to ban games altogether, but they add a further level of necessary bureaucracy for devs/publishers.  And things can be quite different elsewhere in the world, where games classification rules are increasingly being used for political purposes.

In brief, as I’ve written about several times before (see here and here), there is a rising tide of hostility to games when it comes to classification regimes, and I don’t think this kind of behaviour helps.  Here’s hoping therefore that the furore over this latest stunt is muted.

Image credit: EA/Softpedia

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Teen convicted of crashing PlayStation site in banhammer

In March this year we wrote about a Pennsylvania teenager who pleaded guilty to criminal offences over his hacking and crashing of a Playstation web site in 2008, which he did in revenge for being kicked out of a tournament for the PS2 game SOCOM US Navy Seals for using a cheat mod.  
Now, Nukezilla reports that the teenager has been sentenced to a $5,000 fine as well as 250 hours of community service and 12 months probation.  So that’s that then.

It’s worth bearing in mind that in the UK and EU he would have faced similar criminal proceedings.  In the UK for example there are specific criminal penalties under the Computer Misuse Act 1990.  We wrote about Runescape and the Computer Misuse Act some time ago, check it out for more info

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