It's All Fun and Games Until Someone Gets Hurt: Brown v. Entertainment Merchants Assoc. and the Problem of Interactivity

• Jurisdiction: United States,Federal
• Citation: Vol. 13 No. 2011
• Publication year: 2011

Robert Bryan Norris, Jr.⁰

Video gaming is a medium in its infancy. Having seen remarkably rapid advancement over the past forty years, the industry has grown in both popularity and notoriety with children and adults alike. Despite the popularity of video games, some parents and lawmakers have expressed concern over the presence of violent content in video games. With psychologists and social scientists delivering conflicting data about the effects of violent games on children, some states have deemed it necessary to restrict the access of minors to games containing violent conduct.

In Brown v. Entertainment Merchants Association, the Supreme Court struck down the most recent of these statutes and, in doing so, established First Amendment protection for violent video games. The Court further refused to make violence a new restricted category of speech and will now submit any law restricting violence in video games to strict scrutiny. While the Court's ruling may very well be applicable to the medium in its current incarnation, video game technology is constantly evolving and thus may challenge the staying power of the Brown decision. This Recent Development criticizes the Court's failure to fully comprehend the interactive nature of video games due to the majority's cursory examination of a developing medium, demonstrates how interactivity in future games may necessitate a reevaluation of the Court's decision, and addresses the tension between interactivity and speech in video games. It also explores the impact of Brown on trademark law and examines the effect that a reevaluation of interactivity may have on intellectual property jurisprudence post-Brown.

i. introduction

On New Year's Day, 1993, a small company out of Mesquite, Texas, issued a press release announcing its new video game, DOOM.¹ id Software ("id"), the development studio behind the game, boasted that the game "promises to push back the boundaries of what was thought possible on a . . . computer."² id Software's Technical Director, John Carmack, excitedly extolled the incredible advancements he had made in developing a new graphical engine, stating: "[W]e're talking 35 frames per second, fully texture-mapped at normal detail, for a large area of the screen."³ The press release describes the new graphical technology used in the game as follows: "Texture mapping looked realistic enough in Wolfenstein 3-D that people wrote [i]d complaining of motion sickness. In DOOM, the environment is going to look even more realistic. Please make the necessary preparations."⁴

DOOM was an immediate success upon its release.⁵ In 1995, Bill Gates sought to capitalize on the incredible popularity of DOOM in promoting Microsoft's new operating system, Windows 95, by shooting a video in which he was superimposed into the game world.⁶ Fulfilling its bold prediction that "we fully expect to be the number one cause of decreased productivity in businesses around the world,"⁷ id saw staggering popularity for its new game that did indeed spark businesses, schools, and governments to take "necessary preparations." Tech giant Intel, as well as Texas A&M, the university of Louisville, and Carnegie Mellon university, established network usage policies prohibiting users from playing DOOM during work hours, if at all.⁸ The German government even went so far as to outlaw the sale of the game to minors; DOOM could be sold only out of adult-only stores, also peddling pornography.⁹ After the Columbine High School shooting in 1999,¹⁰ DOOM was again under scrutiny, with 60 Minutes and the Today Show both running pieces on the game.¹¹ Both programs featured statements from a retired Army colonel, who called DOOM a "mass murder simulator."¹² 60 Minutes also featured footage demonstrating how the united States military used the game to train soldiers.¹³

Seventeen years later, DOOM is no longer a controversial game in its depictions of violence. In 2006, DOOM was among ten games under consideration for preservation by the Library of Congress.¹⁴ On September 1, 2011, Germany announced that it would no longer prohibit the sale of DOOM to minors, stating that the game was "mainly of historical interest" and that the game was far less severe in its representations of violence than modern video games.¹⁵ It is this turn-around in perception that makes DOOM perhaps the single best lens through which one can examine society's relationship with the video game medium. Both popular and vilified, DOOM, and video gaming in general, has enjoyed both incredible mass appeal and close parental and governmental scrutiny, particularly as the technology has developed. Until the recent united States Supreme Court decision in Brown v. Entertainment Merchants Ass'n,¹⁶ American jurisprudence had failed to change alongside the rapid pace of interactive digital media and the growing cultural concern these advances have engendered.

Now that the Supreme Court has rendered a decision prohibiting virtually any government regulation on video games, the medium now enjoys full First Amendment protection,¹⁷ as any government regulation must pass the nearly insurmountable strict-scrutiny standard.¹⁸ Regardless of whether one agrees with the Supreme Court's treatment of current video games, the holding in Brown presents some unique problems for the law's future treatment of the medium. Plainly stated, the Supreme Court has gracelessly glossed over the unique challenges presented by interactivity in video games.¹⁹ This Recent Development seeks to identify the problem presented by the Brown decision, first, by challenging the majority's claim that the interactivity of the medium is not of any particular concern and, second, by demonstrating the severity of the Court's oversight. It does not seek to advocate for or against the regulation of video games and instead seeks only to pinpoint and expand on an area of weakness in the Court's treatment of video games. Part II of this Recent Development explores how the future of video games will likely take shape. Part III seeks to detail the Supreme Court's decision in Brown. Parts IV and V focus on two distinct but related questions: first, how interactivity makes video games different from other forms of media; and second, why this difference may demand a different regulatory perspective in light of future technologies. Finally, Part VI examines video games as an expressive medium and details how courts should examine interactivity and narrative under the First Amendment.

II. The Games of Today and the Simulations of Tomorrow

Video games have come a long way from the days of DOOM. Games once designed for full-sized desktop PCs can now be played on platforms as small as the Apple iPhone.²⁰ As new advancements change the way users interface with technology, computing power grows, and novel product designs are created, video games will grow and reinvent themselves as well. This section hopes to detail how these changes in interactive entertainment will take shape.

A. Sight and the Development of Image

New developments in video games allow for far more graphic and realistic violent acts than ever previously depicted by the medium. These developments have been applied to almost every human sense. Sight, sound, touch, and even smell are all fair game for future technologies.²¹

In terms of visual enhancements, computer games, as well as Xbox 360 and PS3 games, now support three-dimensional gaming with compatible televisions.²² The Nintendo 3DS stands as perhaps the single most exciting example of the gaming industry's adoption of 3D technology, as the portable device allows for glasses-free three-dimensional gameplay.²³ Video games also continue to improve in their graphical fidelity.²⁴ Realistic animation continues to improve, with games like L.A. Noire utilizing a technology called depth-analysis, which allows cameras to transfer an actor's facial expressions and likeness into a video game to uncanny effect.²⁵ Further, while full virtual reality technology is not yet feasible,²⁶ both Nintendo and Sony have introduced game platforms that allow for "augmented reality" games, which allow game characters to be superimposed into the real world where they can simulate interacting with actual physical objects.²⁷

B. Motion Control, Touch Interaction, Haptic Feedback, and Other Hardware Advances

The video game industry is also implementing revolutionary new ways to control and interact with games at an ever-increasing pace. Microsoft's Kinect, released in late 2010, allows gamers to play without the need for a gamepad—a camera and infrared lens map a player's full body movements in 3D and integrate them into the games themselves, allowing the player's body to serve as a controller.²⁸ Kinect also allows for voice commands and even features facial recognition technology, which allows the system to identify which specific person is playing a game at any given time (provided they have already had themselves registered with the system).²⁹ The Playstation Move and Nintendo Wii have adopted a different type of motion control, using controller wands to track three-dimensional user inputs.³⁰ In other cases, games like Rock Band use controllers in the shape of drums, guitars, and keyboards, which allow players to simulate playing the instruments.³¹ One particularly gruesome peripheral was a unique controller for the Playstation 2 and Nintendo Gamecube versions of Resident Evil 4—players could use a chainsaw-shaped controller to better simulate cutting through and dismembering zombies.³²

Touch, as well, is becoming increasingly important in video game development, allowing users to manipulate games and other programs by moving their fingers across a device's screen. Apple's iPhone, iPod, and iPad all feature touch-based gaming, while Nintendo's DS and 3DS platforms feature touch-screen controls.³³ Sony's upcoming Playstation Vita, launching on February 22, 2012,³⁴ features a touch-sensitive pad on...