“Video Game Decency Act” Introduced in Congress

A Michigan congressman has proposed federal legislation which would make it illegal for game developers to hide content in the hope of gaining a less restrictive ESRB rating.

Rep. Fred Upton (R) filed the Video Game Decency Act of 2007 late last week. The bill, H.R. 1531, mirrors a 2006 proposal by Upton which expired with the end of the 109th Congress.

Upton was a major critic of the now-infamous Hot Coffee scandal, and it shows in the language of H.R. 1531, which reads in part:

It shall be unlawful… to… distribute… any video game that contains a rating label… for that video game where the person, with  the intent of obtaining a less restrictive age-based content rating, failed to disclose content of the video game that was required to be disclosed to the independent ratings organization…

Violations would constitute an unfair or deceptive practice under guidelines of the Federal Trade Commission. The bill has been referred to the House Committee on Energy and Commerce, of which Upton is a member.

When he introduced the original bill in 2006, Upton said it was designed to give the FTC more enforcement power over video game content in the wake of Hot Coffee:

I guess I thought the FTC would have had some more teeth than they apparently have… I’m not at all happy… In essence there are no consequences. None… I would like to have thought that (Take-Two and Rockstar) would have been able to be fined for millions of dollars for the trash they put out across this country.

I am going to be looking to write legislation giving the FTC the authority to impose civil penalties. 

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  1. 0
    hellfire7885 says:

    At least most of us still have our jobs, Thompson. I mean, look at you. You were already pathetic by arguing with "children", which I’m guessing your definition changes by one year as you get older, but now that’s all you have. None of your little bills have passed, you lost your law career, by your own actions, you’re just a loser, a poor man’s Two-Face.

    Also, I’m pretty sure if anyone asked Upton about you, he’d be wondering who we’re talking about.

  2. 0
    Jack Thompson ( User Karma: 0 ) says:

    Dear Kiddies: Some of you, above, express the view that the federal government can do nothing about game content. Think again, children. The Federal Trade Commission in fact forced Take-Two into a consent decree regarding the Hot Coffee fiasco. Honestly, do you people ever read anything other than cheat code books?

  3. 0
    Jack Thompson ( User Karma: 0 ) says:

    I worked with Upton’ s office on the House Resolution that passed last time, resoundlingly, re Hot Coffee. I’m working with them again. Hooah!

    I’m Jack Thompson, and you’re not (congratulations)

  4. 0
    GoodRobotUs ( User Karma: 0 ) says:

    Personally, I don’t have a problem with this anyway, it’s not like a computer company has ever intentionally hid content from the ESRB. People shriek about ‘Hot Coffee’, but, as has been pointed out frequently, that wasn’t even accessible in the game without altering some files and memory contents, or, in the case of consoles, using a piece of third-party hardware. So, did GTA from the box contain in play only what they showed the ESRB? Yes, it did.

    The problem here is still Hot Coffee though. Things like redundant code will be found these days, and human curiosity does the rest. It’s not like you can find ‘hidden’ stuff from movies that they edited out but forgot to remove from the DVD, and if you did, there’d be trouble.

    If Rep. Upton had worded his law to be more geared towards professionalism in programming and the need for unused code to be completely removed from the solution, particuarly with things such as the Hot Coffee scenes, something that is simply good coding practice anyway, it wouldn’t sound so terrible.

    That said, one other question. Some games, like Oblivion, add clothes to models, using an asexual ‘barbie doll’ like texture. I would say it might be very murky ground indeed when someone turns round and says ‘There’s semi-nude textures in Oblivion, they didn’t declare that as part of the content!’, it’s kind of like saying (in, fact, it’s exactly like saying) ‘Everyone in the room is naked under their clothes!’. Where would a bill such as this stand on something like that?

  5. 0
    Traderpaat says:

    Remember, there is an election already going on and people are running for office; and it is much easier to beat on Gamers than it is to balance the budget, fix social security, & either win or get us out of a war.

  6. 0
    Berg ( User Karma: 0 ) says:

    I’m pretty sure the ESRB would already have policies about companies hiding content.
    Since the ESRB isn’t government run, I don’t see how this guy can impose any kind of penalties on companies for hiding things from the ESRB.

  7. 0

    I have just finished reading the proposal. The bill is very funny. Section 4 paragraph 4 writes like it wants to control web distributed content. The rest of the bill is the same as almost every other proposed piece of video game legislation.

    This won’t make it very far.

  8. 0
    ~the1jeffy says:

    First, you can’t prove that any game ‘distributor’ ever hid content with the purpose of getting a lower rating, not once, EVER. You can suppose that Rockstar hid the content to keep the rating lower, but not prove. Especially

    Second, this will never get through SCOTUS. The FTC only regulates the airwaves. Not little plastic dics that a person voluntarily purchases. Period.

    Third, and most importantly, the FTC already had a crack at the, “unfair or deceptive business practices,” involved and found TTWO only guilty of a token fine, but no deception. Thanks, Fred, it’s called a dead horse, and there’s no reason to continue to thrash it. It’s ain’t gonna walk again, Pa.

  9. 0
    Shoehorn O'Plenty ( User Karma: 0 ) says:

    Game developers DO disclose everything when submitting a game for rating. Rockstar should have removed the Hot Coffee code and avoided the scandal, but the rating was correct for the accessable, non-modified version that was released. Once another party modifies or changes in any way the original product, then the rating is null and void and no longer applies.

    If I were to take the Bible, tear out some pages, and insert pages of hardcore pornography, would this mean that the publishers were responsible? Or if I did the same with scenes from Bambi or Mary Poppins, could Disney be accused of lying and misleading the ESRB in looking for a “less restrictive rating”.

    There should be a public information booklet drawn up explaining exactly what the Hot Coffee scandal was ACTUALLY about, instead of having people harbouring hatred for certain companies based on gross misconceptions and lack of understanding.

  10. 0
    ~the1jeffy says:

    Sorry, that should read, “Especially because the one case of oversight of content required the user to download a mod or use a third party game code-breaker.”

    I don’t know why my sentance evaporated.

  11. 0

    Quick question, I have read the fourteenth amendment and am having trouble making the connection between such bill and violating that amendment. Will you please explain?

    To me it speaks of citizenship and cicil rights.

  12. 0
    kurisu7885 ( User Karma: 0 ) says:

    Great, just as I was thinking we’d seen our last anti game bill in my state, Upton drafts another, giving people like Jack Thompson another reason to contaminate our air soil and water

  13. 0
    ZippyDSMlee says:

    Once again they fail to understand what they are doing,they can not go after games alone,they would have to change the whole structure of over the counter media is sold and “restricted”…………

  14. 0
    BearDogg-X says:

    @ E. Zachary Knight

    The Fourteenth Amendment guarantees due process and equal protection under the law.

    This bill(just like all the other legislation that failed) violates the video game industry’s due process and equal protection since they’re the only entertainment medium that’s targeted in these bills.

  15. 0
    konrad_arflane ( User Karma: 0 ) says:


    I think you’re mixing up the FTC and the FCC. The FCC regulates the airwaves. The FTC punishes “unfair and deceptive trade practices”.

    If it weren’t next to impossible to prove intent, I wouldn’t mind legislation to make it illegal to deliberately mislead the ESRB. I don’t see how the ability of game publishers to hide content from the ESRB helps anyone. On the other hand, there really is very little incentive for a publisher to do this – once the game is out, any content they may have hidden from the ESRB is out in plain sight for everyone to see (if it’s actual game content, and not unused code like Hot Coffee), and the ESRB can rerate the game as necessary. So it’s a rather unnecessary piece of legislation.

  16. 0
    jonc2006 ( User Karma: 0 ) says:

    i dont get this crap man. wasnt the hot coffee mod only accessible through a hack or something? and the only way people even knew about it was from talk over the internet. i dont see why and how they changed the rating for this if it wasnt really put in the game the typical sense. i dont see many “children” getting this mod to work, let alone finding it themselves. just because it was still there doesnt mean they left it there intentionally with the goal of people getting access to it. people who played the game normally would have never come across the hot coffee mod themselve.

    what would these people be saying if the mod actually WAS removed from the game? you see, modders could just make up their own little sex minigame if the mod was never created by the GTA developers, and put their own content into their game themselves. what would they be saying if that was the case? the esrb cannot rate the content held in user-made programs/mods. someone with good modding skills could put some sex mini game into just about any game they can get their hands on.

  17. 0
    E. Zachary Knight ( User Karma: 0 ) says:

    We do not have a two party system. That is what the Dems and Reps want you to believe. You can be a member of any party you want whether it is “nationally recognized” or not. You can vote for a member of any party you want. It is just that since the house, senate and electorial college are all Dem and Rep controled, there won’t be a third party introduced to the governement for a while.

  18. 0
    Dan says:

    Was I the only one who read the title first and thought it was going to be like “Comics Code Authority ” which regulated content in comic books to make them more kid friendly?

  19. 0
    John ( User Karma: 0 ) says:

    @E.Zachary Knight

    you are correct, however so much of our government is based on a two party
    system, that it is essentially what we are stuck with.

    @ the issue
    Just wait until we are old enough to clear this crap out of congress. *grumbke silly age requirements and wealth needed grumble*

  20. 0
    vellocet says:

    I wonder if anyone can answer this for me… I never really found out when the whole Hot Coffee thing was happening in the first place.

    Isn’t the use of the Hot Coffee mod a violation of EULA (End User Licensing Agreement)? In which case anybody accessing the Hot Coffee content would in fact be breaking the law? So in effect, by trying to pass laws like this, aren’t they encouraging people to break the law?

  21. 0
    ~the1jeffy says:

    @ konrad_arflane

    You’re right, scratch my 2nd point from the above post. The other two points still stand, and are pretty damning 😉

    @ vellocet

    EULA is not LAW. In breaking a EULA, unless the act of breaking the EULA is in some other way criminal (illegally sharing music, etc.), you are only subject to being rejected from using the software in question. The other terms in the EULA protect the software company from being legally liable for its customers’ misuse.

    Also, pre-Hot Coffee, GTA was mod friendly. Post-Hot Coffee, they changed the EULA. So, to answer your question in two ways, no.

  22. 0
    Konstruct says:

    @ vellocet

    Not quite, a EULA is not a contract one can go to jail for. Its there to ensure the most out of your experience. In a sense a guarantee that the game will work and run properly IF you follow the EULA. If you do not TT and R* has no obligation to help you if anything bugs out about the game after modification. If they did have to help their customer service would run the companies dry due to everyone wanting a new title since they got a busted copy thats unstable after they introduced some script into it to see boobies.

  23. 0
    DietDan ( User Karma: 0 ) says:

    People need to claim down a bit this bill is actually on a quick read constitutional. The first and fourteenth amendments don’t come in too play here because unlike other laws this dose not impose any content based restrictions, compelled speech, or is it likely to lead to any form of chilling effect.

    All this bill says is you can not lie to the ESRB. This bill is all about trade practice, this doesn’t raise any constitutional issues. The name “decency act” is an intentional misnomer a better name would be “Full disclosure in ratings act” but that name wouldn’t get the soccer mom vote.
    On a practical level the law is useless:
    1) Proving intent would be imposable.
    2) The ESRB already has contractual power stopping publishers from doing this.

    But really now people jumping on any bill that has the word game in it and shooting the chant “first amendment” without having any idea what it is makes our side look like a bunch of whining spoiled brats who are complaining that they can’t buy the latest GTA game.

    To reiterate from a legal perspective this law can not be consider anti-game (politically it’s a different story) games themselves and who they can be sold to are unaffected. All it dose is mandate full disclosure of information between two parties during certain business related transactions.

  24. 0
    E. Zachary Knight ( User Karma: 0 ) says:


    You are right. This does not involve regulating the sale of video games. But it does try to step on the toes of developers by forcing them to obey regulations that they are voluntarily following at the moment. IT will have no effect but to set the stage for future legislation to have a government controled ratings board, which the game industry will not go for.

    These politicians don’t understand that the video game industry is an effective self regulating industry. They have their own policies in place that work to prevent things like Hot Coffee from happening. Its only down fall is that it expects the developer to fully disclose all the content. With the exception of Hot Coffee, there has never been a problem with developers withholding content. And since Hot Coffee, we will probably never see it again as no developer wants to go through all that crap.

    Since this bill is written for and because of Hot Coffee, it won’t pass. There is not enough of a problem with developers withholding content to warrant this type of legislation. Maybe T2 should add Fred Upton to the harrasment suit along with JT.

  25. 0
    Pixelantes Anonymous ( User Karma: 0 ) says:

    “I would like to have thought that (Take-Two and Rockstar) would have been able to be fined for millions of dollars for the trash they put out across this country.”


    I guess this particular Representative wants to be in the waste disposal business.


  26. 0
    sqlrob ( User Karma: 0 ) says:

    @DietDan: “People need to claim down a bit this bill is actually on a quick read constitutional. The first and fourteenth amendments don’t come in too play here because unlike other laws this dose not impose any content based restrictions, compelled speech, or is it likely to lead to any form of chilling effect.”

    Then why doesn’t it apply to movies as well? Equal protection means *ALL* media

  27. 0
    Vladimir ( User Karma: 0 ) says:

    Take-Two already lost millions taking the game off the shelves and restocking it with a different label. Isn’t that enough for him?

  28. 0
    Jabrwock ( User Karma: 0 ) says:

    This wouldn’t work, because they’d only be able to penalize companies that the ESRB said had hidden content. The ESRB would be the only one who knew what had been disclosed and what hadn’t, which means that ultimitely it would be a private organization deciding who the law applies to and who it doesn’t.

  29. 0
    ZeRu ( User Karma: 0 ) says:

    I agree with DietDan, while this proposal has practical flaws, game retailers and publishers shouldn’t lie to ESRB. If they treated ESRB as an ally instead of just another obstacle on their way to sales as high as possible, gaming industry would be treated more positively in eyes of parents and delusional politicians and attorneys would have much harder time convincing those parents that video games are “evil”.

  30. 0
    Ace of Sevens ( User Karma: 0 ) says:


    Movies are rated by watching the whole thing. You really can’t hide content in them. This wouldn’t make any sense to apply to movies.

    I don’t think this is unconstitutional, although I’m pretty sure it has no actual effect as this would already fall under the FTC’s purview, which is why Take 2 got fined before. The fine just wasn’t as big as he’d like, but I think that has more to do with him not understanding the background of the issue than the FTC not having enough authority.

  31. 0
    Jabrwock ( User Karma: 0 ) says:


    Only if you have a vivid imagination. That could easily say SFX, SEU, CFY… It’s only when you are TOLD what it says that you see the word they want you to see.

    Humans are great at seeing hidden patterns, but also at IMAGINING patterns that aren’t really there…

  32. 0
    G-Dog says:

    We have some of the worst unemployment in the country here in Michigan, and our elected officials are worried about polygon boobies. My family is considering a move to Chicago, people are fleeing the state in record numbers, and they waste time on this crap.

  33. 0
    Wolf ( User Karma: 0 ) says:

    I’m still not happy that he’s concerned with this in spite of the very serious problem Michigan is in. We have more important matters that NEED to be fixed.

  34. 0
    DietDan ( User Karma: 0 ) says:

    @Brainswarm, Yuli and everyone else in this thread.

    “Actually, they took out the requirement that they play all the content in a game. Apparently, someone pointed out to the congressman that some games were in fact so long as to make that portion of the law impossible to follow, and therefore the industry could have the entire law dismissed on those grounds.”

    Once again I find it difficult to take our own side seriously when we act as ignorantly as the politicians we criticize; they did take that out because it was never in the bill in the first place. A lot of your are confusing this Bill, proposed by Michigan Rep. Fred Upton (R), with this one http://gamepolitics.com/2007/02/14/presidential-candidate-brownback-revives-game-ratings-bill-in-senate/ The Truth in Ratings Act proposed by Senator Sam Brownback (R-KS) this is the bill that would require playing the game all the way thought, give government power etc.

    Honestly the only thing these bill have in common is they are proposed by white republicans, yet a whole lot of you immediately assumed they were they same. For the last time the ESRB is not effect at all by this law, the ESRB it rating it process everything is untouched by this law, the only people effected by this law are game publishers who submit games to be reviewed by the ESRB and then intentionally lie in order to gain an unfair market advantage, something that we could prosecute them for with out this law. Making this law at best a clarification of the law and at worst a needless redundancy.

  35. 0
    brokenscope ( User Karma: 0 ) says:

    So 3 people thinking it was Brownback’s bill makes out side hard to take seriously? I think you should be more annoyed that some of us didn’t even read the bill before we questioned it.

  36. 0
    GoodRobotUs ( User Karma: 0 ) says:

    And, as I stated, I support the law as it stands. Yes, I got confused between which bill was which, my mistake.

    There you go, I’ve already gone further than any of the politicians have, simply by admitting I misread something. If it’s perfection you seek, then you won’t find it here, if it’s the ability to turn around and be strong enough to admit you jumped to a conclusion, you won’t find it there.

  37. 0
    Dan ( User Karma: 0 ) says:

    “So 3 people thinking it was Brownback’s bill makes out side hard to take seriously? I think you should be more annoyed that some of us didn’t even read the bill before we questioned it.”

    True but they are pretty close to each other in my mind, people thought this was a different bill because they didn’t bother to click the link and actually read it or the link form the pervious sessions which make it clear this isn’t and was never the same bill. But my general annoyance is more at the overall attitude of many of the people here mainly: that any law is about video games is automatically unconstitutional, any negative comment about game makes one an out of touch anti-gamer and the rather hypocritical attitude of some. Let me put it this way when politicians confused the super columbine RPG with Bully many immediately jumped down their thought for it. How can we expect politicians to tell apart two games, if we ourselves can’t tell two different bills apart from one another? How can we expect them to do research on to this, instead of going by their assumption that all games are pong, when we can’t be bothered to click on a link and double check our own assumptions?
    This is just a small example of the attutide some on our side display.

  38. 0
    Monte ( User Karma: 0 ) says:


    Yes the MPAA has guidelines… HOWEVER, these guidelines have no force of law behind them, they are a completly voluntary system set up by the movie industry. The Esrb in a similar fashion already ask the game developers to disclose the most extreme content when they ask for a rating from the ESRB. Just because one VOLUNTARY system works better than another system an has less room for error, i do not think would be enough to avoid equal protection. I don’t think the reasoning of “we can TRUST the movie industry more” is just reasoning.

    The thing is, the MPAA isn’t going to know the director released an unrated version of the film until after it screen’s for the first time/starts getting distributed. Fact is, if the director decided to go over the head of the MPAA and released a version of the movie with the older rating, the MPAA might punish them in some way, but there will be no LEGAL reprecussions, such as fines by the FTC. If i recall, this is how it currently is with ESRB, if a game company were to decieve the esrb, the esrb has power to punish them with voluntarily enforced fines…

    By all means, i think though it may be a system with fewer areas of error, if the if a law comes in stating that the game industry MUST disclose all vital content to their ratings system, the the movie industry as well MUST disclose all their information to their rating system… Fact is, with this law, one form of media is LEGALLY bound to obey the rules of it’s ratings system, while all others get to stay VOLUNTARY

  39. 0
    Hilaryduffgta ( User Karma: 0 ) says:

    hasnt this guy rambled on before with the same lines over and over again?

    oh well it will be intresting to see where this goes

    oh and im back for definitly now my libary stuff is paid off so duffy is back to posting

  40. 0
    ~the1jeffy says:

    I call it moralist because the bill’s author has gone on record with, “I would like to have thought that (Take-Two and Rockstar) would have been able to be fined for millions of dollars for the trash they put out across this country.”

    He is talking about content, not deceptive omissions from a ratings board. His motives in authoring this bill are clear.

    On paper, this bill only gives the FTC powers it already had, then? Then why write it? The FTC already can cover deception, from what I understand. This whole bill speaks to singling out video games as today’s demon – where’s the truth in movie ratings act, or the truth in media ratings act? Why is it necessary to pass this law when the FTC can already go after a video game maker for hiding content from consumers by way of hiding it from the ESRB? The only answers I can up with are that Upton has no clue what he is doing by writing a redundant bill, or he is end-arounding free-speech with intent on allowing more FTC-oversight of the ESRB.

    You say that this law doesn’t give legal weight to the ESRB. I disagree. With this bill passed, it becomes the responsibilty of the FTC to ensure not only that deception is fined/punished, but the next legally logical step is to ensure that deception can’t happen. At the very least, the ESRB will be required to report any infractions to stop itself from being liable – giving the ESRB one step away from Judicial authority on one hand, or giving the FTC ESRB-oversight duties. As I see it, the only way to avoid 14th due process concerns is to have the FTC oversight. If you can come up with another way this will be enforceable, I am willing to conede the point. Being not Constitutionally enforceable, secondarily redundant, and tertiarily a potential free-speech chilling effect makes me believe this will not stand in court.

    What bother me most, is that this is a perfect example of the ridiculous bureaucracy we call a government. Upton wants to go after TTWO for putting ‘trash’ into millions of homes. His legal team finds the only semi-Constitutional way to do it, and writes a bill for him. He presents the bill to Congress, and because of its political baggage from the moralist/soccer mom/won’t somebody think of the children camp, it steamrolls into law. Every result to this is an affront to the citizens of the US.

    -One, the bill is passed and never enforced. This is not likely given the hot-button issue it is. Unfortunately this is the best we can hope for even though the Libertarian in me wants to gag.

    -Two, the bills is held up in a string of lawsuits and appeals, wasting taxmoney and in the end is upheld/blocked. If it’s upheld, see #3 and my above concerns. If not, then great, but still a giant waste of time on a non-issue that has little effect on real problems. We are talking about entertainment that no one is forced to buy, which is silly that it even comes into our Government.

    -Three, the law is enforced, and video game producers must purposely ‘tone-down’ games in order to avoid any misscommunication to the ratings board (FTC in absentia). A simple misscommunication is no longer a private ageement between the ESRB (which can fine game makers or refuse ratings itself) – it’s now a felony? I can only hope not.

    It’s out-and-out ridiculous for politicians to be wasting their time on a free-choice entertainment media, let alone 32.3% of such a media. (AO, M, and T games, or 8% if you discount T, which in all honesty is fair because the issue is more about the M/AO line because anything sexual lies there, and to be honest this is not about violence) It’s not even a issue per-se, it’s 1/3 of a issue or 2/25 of an issue. In all reality this is beneath needing notice.

  41. 0
    me says:

    it’s the same as net neutrality, people who have no idea what they’re talking about are trying make laws hoping the general public is as ignorant as they are on the subject.

  42. 0
    DietDan ( User Karma: 0 ) says:

    “He is talking about content, not deceptive omissions from a ratings board. His motives in authoring this bill are clear.”
    Not going argue with you there but legal and political are different things. I’m looking at the legal I agree with you on this politically.

    “Three, the law is enforced, and video game producers must purposely ‘tone-down’ games in order to avoid any misscommunication to the ratings board (FTC in absentia). A simple misscommunication is no longer a private ageement between the ESRB (which can fine game makers or refuse ratings itself) – it’s now a felony? I can only hope not.”

    Unlikely this is like saying that having slander and labial law will silence free speech, which they would were it not for the problem of proving intent. Proving intent is near imposable so this isn’t much of a concern. A miscommunication would not be punished since no intent to device is present.

    “but the *next* legally logical step is to ensure that deception can’t happen. At the very least, the ESRB will be required to report any infractions to stop itself from being liable – giving the ESRB *one step away* from Judicial authority on one hand, or giving the FTC ESRB-oversight duties.”
    Your own words give away the flaw in your argument is based on what might happen next those are not going to be on trial, it is a thin line but it is there none the less and having to report something is hardily legislative power really it is kind of the opposite.

    “As I see it, the only way to avoid 14th due process concerns is to have the FTC oversight. If you can come up with another way this will be enforceable, I am willing to conede the point.”
    This will be done exactly the same way the investigation that TT already went under was conducted. Someone -could be any one Jack Thompson, the ESRB, your mother, a disgruntled take two employee, the PTC- files a compliant. The FTC then decided if they are going to investigate, if the they do investigate the ESRB will be asked to hand over the information given to them (NOT to determine if any wrong doing occurred) the video game company will hand over all the information they have, the FTC determines if the company intentionally withheld information it KNEW was relevant with the deliberate INTENT of getting a lower rating. No FTC oversight of the ESRB required I don’t know how you’re getting the idea that would be necessary.

    Your looking at this from the wrong angle let look at it this way. On paper alone this is what the law would be designed to do: AO and unrated games are not sold in most stores lets say a publisher (Party A) knows a game will be rated AO as is and then decided “Let’s just lie to the ESRB” so the game goes out with a M rating. Now let say another company (party B) was in the same positions but let the game go out with an AO ratings. To illustrate the point let ignore that the ESRB would quickly have company A’s game off the self. In this scenario companies A game would be selling in all stores while company B will be in very few stories and even in those stores that carry both companies B’s game will not be bought by some due to it rating. By lying to the ESRB company A has secured it self an unfair trade advantage this, not that they disobeyed industry regulations in it of themselves, is what is being punished. Even if you reinsert that the ESRB’s ability to rerate the game the illegal act in question “unfair trade practices” still occurred. Now let say an employee from company A leaves the company with a memo proving that company A intentionally lied to the ESRB and then gave it to company B, company B can then bring it to FTC and the FTC can then under this law (without necessary having to even call the ESRB since they already have enough evidence.) punish company B for deceptive trade practices.

    Now my above scenario –as admittedly improbable as it may be- is an illustration of what a law like this on paper is supposed to prevent. How is this a violation of the 14th.

  43. 0

    […] GamePolitics reports on yet another attempt by lawmakers to make the world safe from the dangers of electronic entertainment. Entered by Representative Fred Upton, the bill spells out penalties for game companies that try to ’sneak’ something past ESRB raters. Says Upton, “I guess I thought the FTC would have had some more teeth than they apparently have… I’m not at all happy… In essence there are no consequences. None… I would like to have thought that (Take-Two and Rockstar) would have been able to be fined for millions of dollars for the trash they put out across this country. I am going to be looking to write legislation giving the FTC the authority to impose civil penalties.” […]

  44. 0
    monte' ( User Karma: 0 ) says:


    y’know looking at that scenerio of yours actually brings up a different problem. Your scenerio takes out the fact that the esrb would be quick to take the game off the store shelves… However, thinking of this way kinda helps illustrate what i’ve been saying, that the game industry could argue that this law should apply to other forms of media aswell, such as movies. Take your scenerio and replace the terms, Games with movies, M with R, AO with NC-17, and ESRB with MPAA, and scenerios match up pretty much the same. By somehow deseving the MPAA, company A could have a trade advantage over company B with its movie. Bascially, it shows how the games are being singled out. Has improbable as it is, movies in theory could do almost the same thing… the MPAA is stricter and harder to get around, but i would not say it’s impossible.

    Movies get to maintain their voluntary system with self enforced fines and punishment, while Games are placed under a completly legally binding system with legally enforced fines. As it stands, IF a slip up like that did occur with a movie, the MPAA COULD just choose to make no fines and just leave a warning, where as the game company would be forced to pay fines no matter the cicumstances. That just doesn’t sound like equal protection between the two mediums… the question is, why is the movie industry allowed to stay voluntary and not the game industry?

  45. 0
    Hackangel ( User Karma: 0 ) says:


    I think you misread something or read something wrong somewhere. The game industry would remain “voluntary”. Just like the movie industry is. This law would not make it an obligation to submist yourself to the ERSB for ratings. Videogame companies do it because the majority of stores if not all of them will refuse to carry an unrated game just like most movie theaters will not play an unrated movie.

    As for fines, the videogames company wont pay fines “no matter what”. They will pay fines if the FTC find that they purposefully deceive the ERSB. Just like the moive companies pay fine if the FTC finds that they purposefully deceive the MPAA (which almost never happens).

    The goal of the law is to make sure that videogames companies mention all content in their games. Including the content to which the access was removed but that is still in the game, like Hot Coffee.

    Movies are different in that manner because you can’t have content hidden that way.

  46. 0
    monte' ( User Karma: 0 ) says:


    wait a sec, you hit up on something i didn’t know about. If the a movie decieves the the MPAA, do they pay fines to the FTC or the MPAA? cause the way i thought it was going was that the MPAA would be the ones punishign the movie producers if they tried to pull something, not the FTC. If it is the case that the FTC is the ones handing out fines and not the MPAA, then my arguement seems rather moot, since that would mean that something like this law in question ALREADY exists for the movie idustry, and thus the law IS treating games fairly by subjecting them to the same treatment as movies, with the threat of legal FTC fines as opposed to just ESRB fines. Afterall, treating things fairly goes both ways… this would bascially mean that this situation is no different from those “no explicit games” laws.

  47. 0
    illspirit ( User Karma: 0 ) says:


    If a director were to pull a fast one and release a different film than what they showed the MPAA, two things would happen: A- The MPAA would sue for trademark infringement and get an injnuction blocking further performance of the film, and B- The MPAA would likely file its own complaint with the FTC for deceptively marketing said film as being approved by the MPAA.

    Either way, this still wouldn’t be hidden content, per se, as it would be a blatant and immediately obvious misrepresentation. From a gaming perspective, this would be more like if R* had inserted Hot Coffee right in the open during the main story missions after the rating, rather than allegedly “hiding” it.


    As DietDan said, this wouldn’t put the ESRB or the industry directly under the purview of the FTC. Enforcement (and for that matter, investigation) would only come as a result of complaints filed with the FTC from either the public or Congress. Similar to what happened with Coffeegate. Otherwise, the bill would require language granting such powers to the FTC. Which would then violate the 10th.

    You are correct that there is some risk of incremental usurpation via bureaucratic fiat, just as there is with any other agency (FDA and BATFE are grim examples). However, given that there is no language in the bill authorizing the FTC to create their own extra-legislative regulations, rules, or procedures, the risk therein is minimized.

    But even then, such a minor risk is probably outweighed by Section 5’s Federal preemption over State and local game bans. Should the FTC become unruly at some point in the future, this could be fixed by repairing or repealing the bill. Granted, I would be much happier if the Federal .gov weren’t involved at all, and instead shrunk back down to its original Constitutional size. But until that happens, we have to play by the rules of their omnipresent use of the Interstate Commerce clause.

  48. 0
    monte' ( User Karma: 0 ) says:


    Would it be Trademark infringment? In that exmple, the director is releasing the same movie, just with one added scene. He still owns the rights to use the ratings label on the film in question. If there was somekind of law binding contract agreement to keep him from modifying the film, then they could hold the film based on breaking contract, and then maybe trademark infringment. but i don’t know for sure how these things work. The thing is, even in your explaination the film would still be seen with undisclosed content before it’s stopped fully and the point of the law is to prevent such things. (hell, if the MPAA really wanted to, they could let the new thing just slide by, afterall, they aren’t LEGALLY bound to do anything about it). Essentially what you said the MPAA would do is similar to what the ESRB would do in a similar situation, the moment they found out about the content they would have the game pulled from the selves and re-rated… just as you said the MPAA would do something about the film, the ESRB aswell would do something about the game. it’s all similar. It’s like what they ended up doing with Oblivion.

    And from the article, the law isn’t only about “hidden” content, it’s about undisclosed content. For instance, IF R* did put the hotcoffee in the main game, but did not tell the ESRB about hotcoffee when they asked for a rating on the game, then GTA would STILL be in violation of this law… it doesn’t matter that it was hidden, just that the ESRB didn’t know about it. Oblivion aswell, would have gotten fined for having more blood than the ESRB knew about (or so they), and like in that previous example, the blood wasn’t “hidden”, it was just undisclosed

    So, i think the game industry could argue that if the Game industry must be legally bound, then the movie industry should be too. I’m not so sure that being better in there ability to catch such errors is enough grounds for the difference in treatment of the two mediums… You would have a point if the law was ONLY about hidden content like hotcoffee, since that kind of stuff is something only video games can do, but from my understanding it isn’t about hidden content, but about disclosing all information (stuff that can change the rating) to the ESRB.

  49. 0
    illspirit ( User Karma: 0 ) says:

    It looks Constitutional to me. Nowhere in the bill does it say developers have to get a rating or that retailers have to enforce the rating. Nor does it say what type of content is regulated, thus, it’s not giving the ESRB extra-judicial/legislative power over speech.

    If (and that’s a big if) the feds can actually prove a developer hid something with the *intent* of scamming the ESRB into a lower rating, it’s really no different than any other scam or false advertising. Technically, this is already illegal, it’s just that the FTC found no intent to deceive with Hot Coffee.

    As such, this bill really does nothing in that regard. In that it’s nearly impossible to prove intent. And should intent be proven, it would have already been actionable on grounds of false advertising and/or contract law anyway.

    On a side note, Section 5 essentially provides Federal preemption over any and all State or local anti-game laws! By superseding any other law “that regulates the rating of video game content, or regulates the sale, rental, or display of a video game on the basis of the video game’s constitutionally protected content,” it would nullify/prevent any State/local laws therein.

    The Federalist and Libertarian in me doesn’t really like the Feds intruding on, well, anything. But then, this is actually interstate commerce, and it would protect gamers and developers from ban-happy State/local legislators, so perhaps it’s a good thing…

  50. 0
    stutte says:

    What annoys me most about these kind of reactions to “hot coffee” is that they act like they snuck a hardcore porn scene into a Mickey Mouse game rated E. I would totally understand everyones outcry over something like that, it makes sense. But thats not what happened. It was dormant code on an M rated game. M. Mature. I.E. not for kids. I still don’t understand why politicians are making such a big deal out of this. (besides maybe to gain support for their political goals by waging war on things people are irrationally afraid of.) I’m rambling.

  51. 0
    sqlrob ( User Karma: 0 ) says:


    Have you watched the Apocolypto(sic?) trailer? Granted, the bit slipped wouldn’t be considered offensive, but it’s there. All media must be given the same restrictions or none.


    It doesn’t give that capability? SA had “Strong Sexual Content” descriptor applied to it already, and the acts in Hot Coffee were no worse than many R rated movies.

  52. 0
    17-A says:

    E-mail’s been sent to my congressman who serves on the House Committee on Energy and Commerce. The only mistake Rockstar made in the Hot Coffee scandal was not deleting the content from the game entirely once the decision was made to not include it in the actual game. There was no deceptive business practice and no intent to secure a lower rating, which makes the language of the act irrelevant to reality (which makes me wonder if JT had a hand in its writing).

  53. 0
    brokenscope ( User Karma: 0 ) says:


    “I agree with DietDan, while this proposal has practical flaws, game retailers and publishers shouldn’t lie to ESRB. If they treated ESRB as an ally instead of just another obstacle on their way to sales as high as possible”

    So one company hiding content means the entire industry?

    Devs don’t have to get a game rated. If they want to sell it in most stores they need a rating. Retailers don’t have anything to Lie to the ESRB about. They take a game with a rating and put it on a shelf. Some devs will get a rating that is too high then go back and rework the game so they can hit their target market with an appropriate rating. The industry created the damn ESRB.

    That part of your statement struck me as misinformed, or maybe I misinterpreted it.

  54. 0
    DietDan ( User Karma: 0 ) says:

    @E. Zachary Knight
    True which is why I agree it is politically bad for the industry but legally I don’t see any thing that would get it throw out by the courts.

    @ sqlrob
    “Then why doesn’t it apply to movies as well? Equal protection means *ALL* media”

    Yes but this is NOT media regulation (the regulation of protected content) it is trade regulation (regulations regarding business practices). Equal protect applies if the regulation were based upon a constitutional right instead of business practices (Not constitutionally protect falls under rational scrutiny) for example had the law said when submitting a violent game for review, then it would be unconstitutional because it is now based on the product content (constitutionally protected falls under strict scrutiny) This law effect industry practices, it is not against the law to pass a law effecting one industry but not another.

    Equal protection means equal protections of rights not identical trade practices.
    Examples: Would you consider it unconstitutional if I passed a law that effected lemons, but not oranges? Is it unconstitutional that you pay taxes on your phone bill that your don’t pay on your cable bill? No, because these regulations are not based on equal protected rights (even thought in my second example the industries involved due transmitted protected materials).

    “The ESRB would be the only one who knew what had been disclosed and what hadn’t, which means that ultimitely it would be a private organization deciding who the law applies to and who it doesn’t.”

    No, you’re basically saying is that it is unconstitutional to make a law were an effected part may or may not file a compliant to be reviewed by a government agency, in which evidence will be brought to be consider by said government agency to determine at the government agency discretion wither deceptive trade practice occurs. All this law does is giving the *FTC* power to investigate and punish a company if a compliment is filed. The government not the ESRB decided withier a violation of fair trade practice occurs, the only thing the ESRB would do is provide them with what they received so the FTC could make the call. That this gives the ESRB legislative power is ludicrous.

    “it is still unconstitutional as it is giving the esrbs labels the power of law behind them.”

    Did you even read the link to the bill this dose northing of the sort.

  55. 0
    Dave ( User Karma: 0 ) says:

    Okay, I get it. The party I counted on to do responsible things about important issues is now trying to tackle the most important issue of our times: whether some blips on a screen are properly regulated.

    Border control? Who needs it?! Drug trafficking? Bah, says I! The threat of nuclear devices making it into the US courtesy of certain factions and possibly destroying a major city? Threat, schmeat! Let’s make sure that videogames are safe for our children!

    Imbicile. I’ve run out of patience with the Republicans. I may vehemently disagree with Democrat ideals, but it seems the only way to get my party back is to run the hacks out of Washington. I’m sending money to this guy’s opponent.

  56. 0
    illspirit ( User Karma: 0 ) says:


    I’m pretty sure I know what was in HC…

    At any rate, I think you just agreed with me. My point was that this law wouldn’t be applicable to HC as it wasn’t hidden intentionally and there was no reason to hide it. Were this law applicable to HC (IE, if it was real porn in a Teen game or something), R* and T2 could have been fined by the FTC without this law for false advertising anyway. Ergo, this law doesn’t really do anything which couldn’t be done already.

  57. 0
    ZeRu ( User Karma: 0 ) says:


    “So one company hiding content means the entire industry?”

    Guess I was misinformed and that game industry is never trying to hide anything from ESRB anyway, but wouldn’t that mean that this legislation won’t change anything? It would just serve as a precaution measure. I don’t think Upton’s (or even Brownback’s) intentions are purposely oriented to hinder game industry, it’s only their lack understanding which makes it seems that way. Speaking about Brownback, wouldn’t this make his “Truth in video games ratings act” (or whatever it is called) proposal obsolete?

  58. 0
    ~the1jeffy says:

    @ illspirit

    I realze you’ve read into it’s redundancy fairly well (as did I with my dead horse comment), but then why pass this law unless there is an ulterior motive? I’m highly skeptical of it’s benign apprearance because of this Rep’s, “I want the FTC to have more teeth,” line.

    The act singles out video games needlessly, and for that reason alone it reeks of moralist policing of the popular culture.

    “I’m pretty sure I know what was in HC…”

    … understatement, much? :)

  59. 0
    Ace of Sevens ( User Karma: 0 ) says:

    It seems to me he’s trying to pass a redundant law because he doesn’t understand the current law or the Hot Coffee incident. Essentially, he’s upset Take 2 deceived the ratings board and only got a small fine, so wants to give the power to levy big fines for this sort of incident when the truth is the FTC already has this power, but didn’t use it becuase they found no intent to deceive. One of my biggest pet peeves is legislators who write bills before researching the associated issue, although that’s maily the fault of voters, who also don’t do there research. There’s probably some posturing in there too.

  60. 0
    point09micron ( User Karma: 0 ) says:

    Why do people (both here and in Congress) keep saying that TT/RS “hid” the Hot Coffee content from the ESRB? In actuality they did no such thing.

    They submitted to the ESRB the content that they would be selling. If the minigame was “in” the game rather than locked, but they hadn’t told the ESRB, THAT would be “hiding” the content. However, the content was NOT “in” the game officially.

    GTA:SA and Modded GTA:SA are not the same game. Therefore, no content was hidden from the ESRB.

  61. 0
    GoodRobotUs ( User Karma: 0 ) says:

    I haven’t read the whole thing, but has that daft passage about the ESRB having to play the game all the way through been removed?

    And yes, I have concerns that he has left the door open to ‘software rating boards’, for example, say a conservative group decides to create it’s own rating board and grades a Teen game as 18? What happens then? Does it apply only to the number on the box when it is sold, because the whole thing seems pretty vague in that respect?

  62. 0
    E. Zachary Knight ( User Karma: 0 ) says:

    I hadn’t thought of other ratings boards until you guys brought it up. But yes if another organization started rating games, then all game developers and publishers would have to support them by law and submit the content to all ratings organizations. This would be a forced competition on ratings and a pain to all developers and publishers. This could also cause severe delays in a game’s release as a government or lawyer cotrolled organization could delay giving a rating to a game they did not want marketed indefinately.

    And could you imagine all the labels a game would have to have. Eventually there would be more rating labels on the box cover than cover art.

    @Good Robot Us
    Yes they removed the complete review stuff. They must have relized just how ignorant that was.

  63. 0
    brokenscope ( User Karma: 0 ) says:

    the term ‘‘independent rating organization’’ means the Entertainment Software Rating Board or any other organization that assigns age-based content ratings for video games

    Does this worry anyone else?

    What if the PTC or Common sense Media(?) Decide that something wasn’t disclosed the them. Do they have the force of this law behind them aswell? I know the PTC will jump at the chance to start fineing the industry constantly. I does anyone know if they were invovled in the creation of this bill?

    Ignorance is no defense. Its their job to be informed. They run this country, they need to know what they are doing.

  64. 0
    Gamer81 says:

    @ DietDan:

    Equal protection DOES in fact apply here. The reason is because it seeks to control/dictate something upon an item that is constitutionally protected. Lemons and oranges, cell phones and cable bills are not even forms of speech. What next, are you going to compare cigars with cigarettes?

    Also, let me ask you this. If this bill is indeed constitutional, then how come these so called lawmakers don’t include movies, and books, and music CDs? What do they have to lose if they include all media forms? They should lose nothing, as if they include all media, we can then be sure that no media from will come with anything “hidden” and it will ensure customers are getting what they expect to get.

    Plain and simple, the reason lawmakers go after only video games and not other media forms is because they don’t see video games as a legitimate form of free speech, and thus, they feel their video game bills, like this one, will pass constitutional muster. If they felt this bill were constitutional, they should have absolutely no issues with including all media forms, which is what we do when we regulate pornography (we don’t care if porn is found in a book, magazine, movie, etc, they are all treated equally).

  65. 0

    […] Now onto gaming.  You know, I should broaden my topics more…maybe include a make-up section, an advice column, and some porn links, lol.  I was very pleased to see the rumors about Devil May Cry 4 are becoming more solid.  It looks like it’s gonna come for the 360 and they might even make a PC version of (fuck yeah!!).  Their website is here, although it’s mostly in japanese, though.  On politics, the congress is trying to introduce a legislation in which the ratings for video games should also include the hidden content and such, so, even though most of the game is pg-13, if the cheat level is rated M, the whole game is rated M now, darn it! Why won’t you guys just leave the poor kids alone…I turned out alright, didn’t I? now shut up or I’ll shoot you in the face, then run you over with my Banshee untill floating money appears over your corpse (while a cop is not near of i might get a star) and then cast Fire 3 on you! […]

  66. 0
    F**ked up says:

    So when reading I was think about unrated version of Movies being sold on DVD. And on these we really dont know whats on them but we can guess. But anyways, I just see this another stupid bill created so the government has some way of regulation video games, since they already have foot holds on other forms of media.

    Also as John Stewart once said “there are f**kin crazy people in the house.”

    So why the hell do they keep getting offices. Obviously they have no clue about what they are talking about and creating bills without having a single clue. All they doing is reacting. Saying I dont like this because it is offensive and yadda yadda yadda. Or a good moral crusade will always get me more votes. Its like they are trying to regulate the internet while they chiseling away at stone.

    All this shows is incompentence. And you know what I have to say about it…


  67. 0
    Hackangel ( User Karma: 0 ) says:


    “What if the PTC or Common sense Media(?) Decide that something wasn’t disclosed the them. Do they have the force of this law behind them aswell? I know the PTC will jump at the chance to start fineing the industry constantly. I does anyone know if they were invovled in the creation of this bill?”

    I don’t think so. The videogames industry voluntarily submits itself to the ERSB for a rating. The bill in fact makes it an unfair trade practice to hide content from the ERSB. The PTC or Common sense Media could seek to fine some companies for undisclosed content but only if those companies seek a rating from them which I doubt will ever be happening. Imagine buying a game with “PTC rated NC-17” on it. It will never happen.

  68. 0
    Hackangel ( User Karma: 0 ) says:

    @E. Zachary Knight

    “I hadn’t thought of other ratings boards until you guys brought it up. But yes if another organization started rating games, then all game developers and publishers would have to support them by law and submit the content to all ratings organizations.”

    Not really. Like I said before, being rated by the ERSB is voluntary and not a legal obligation. So if the PTC wants to rate games they would need for the companies to voluntarily submits their games for ratings which I doubt will ever happen with the PTC.

    Think about unrated movies. The reason you only see them on DVD and not at the the movie theaters is that movie too are voluntarily submitted for ratings. Movie Theaters makes it a business practices that movies be rated, not video stores. Unrated DVD are movies that didnt submit for a rating. Disney’s Sleeping Beauty could be unrated.

  69. 0
    EOTD says:

    “Unrated DVD are movies that didnt submit for a rating. Disney’s Sleeping Beauty could be unrated.”

    Precisely. :) A good number of the “Unrated” versions of films released on DVD just contain a few small scenes that were cut from the version that was submitted to the MPAA, scenes that, while not explicit in any way, allow the film’s makers to slap “UNRATED!!!!” on the cover and fool gullible adolescents into thinking they’re going to see some naughty bits. It’s deceptive, but legal (and those idiots who fall for it deserve it).

  70. 0

    I have covered this issue in the form of Senator Brownback’s bill in the Senate. You can check it out at my site or CEI’s OpenMarket.org. Both bill show the lack of understanding on the part of the legislators as to what video games are, let alone how to regulate them.

  71. 0
    E. Zachary Knight ( User Karma: 0 ) says:


    They are not legally required to rate a game, but any other ratings board would be able to point to this law and say “You didn’t disclose all the content to us so we couldn’t give your game a proper rating” Thus wrecking havoc on the game industry.

    Of course there are statements in the bill that could mean it is only applicable to the printed rating and their associated board but these things are always up for interpretation. If the 1st ammendment is always misinterpretted, this could easily be.

    As for Section 5, I like that it makes all states unable to regulate video game distribution as it is an interstate commerce and not just a intrastate commerce. I think they need to drop everything except that last section. That way the ESA only has to worry about one government body instead of 52.

  72. 0
    EOTD says:


    I doubt it would apply to them, as their ratings, if they indeed put out any, do not appear on the game. It doesn’t seem like a set-up for a government-run ratings board, either, because the term “independent” effectively blocks it. If any legislator tries to get around that, someone will call BS.

    Almost everyone seems to be overlooking Sec. 5, too, which is possibly the most important part of the bill. It has the potential to screw up some of the state-level laws that are being considered right now.

    This bill is benign at worst, and extremely helpful at best. Even though it may have been created in response to Hot Coffee, it can’t be used against Take Two for that incident (remember “Ex Post Facto”, people – laws are not retroactive). It’s essentially just a legal enforcement of the policy that the ESRB adopted in response to Hot Coffee, that publishers must reveal ALL applicable content, even that which is in dormant code. It’s a “just-in-case” law meant to cover their bases before any developer -does- willingly withhold info from the ESRB, and it’s likely to be a good deterrent.

    Free-speech concerns are not an issue, either, since the bill does not deal directly with the content of the game – all it’s concerned about is the disc/cartridge and the box, the physical components of the software. It doesn’t regulate at all what is on the disc/cartridge; in fact, it doesn’t even make it illegal to lie to the ESRB, or even prohibit producing discs/cartridges containing the game that the ESRB was lied to about. It only prohibits shipping and other distribution of such games. So, technically, someone could make a Mickey Mouse game, show it to the ESRB, get an E rating, throw some hardcore porn on it afterward, and produce as many discs containing the game as they want. They just can’t ship it to stores, or directly/indirectly transmit it to consumers in any way. The discs would just have to sit there in their office, but they can be legally made. It’s simply concerned with interstate commerce, and is perfectly constitutional.

    Oh, and that Lion King image looked more like SFX than SEX to me. In my opinion, it’s all just a matter of the power of suggestion – people see what they want to see. Probably some anti-Disney “OMG Mikkey Mowse iz teh debil!!1!” idiot was looking through Disney tapes frame by frame to see if he could find any evidence of misdeeds, and sure enough, he interpreted the random eddies of dust in four frames of The Lion King as a vague, misshapen “SEX”.

  73. 0
    F**ked up says:

    This all stems from the hot coffee scandle. Why cant we get bills pushed to scandles from our own F**king governement. If there is any scandle that should have bills being pushed its for our own damn politicians. They are the worst since they are the ones power and cause the most harm. Can anyone say Billions of dollars?

    But you know this will never happen.


  74. 0
    Ace of Sevens ( User Karma: 0 ) says:

    I’d add that section 5 is either unconstitutional or meaningless. I believe the latter. If the states have the right to make such legislation, you can’t take it away without a constitutional ammendment. If they can’t make such legislation in the first place, they hardly need a bill to say this.

  75. 0
    Ace of Sevens ( User Karma: 0 ) says:

    @E. Zachary Knight
    This clearly wouldn’t apply to the PTC or any similar organization. They can’t very well hide content from a ratings board they never submit it to in the first place. It doesn’t say all content must be disclosed to all ratings boards, only that you can’t purposely hide content from them.

  76. 0
    illspirit ( User Karma: 0 ) says:


    I think the ulterior motive is to stop States and cities from interfering in the market/interstate commerce, as per section 5.

    It may be singling out games needlessly, as HC-type situations are isolated flukes. However it should survive a 14A challenge because games are unique in their ability to have things “hidden” in them.

    I’d hardly call it moralistic, as it doesn’t say you’re not allowed to make a game with a necrophiliac kitten rape level. Just that you can’t hide it in Barbie Horse Adventure and advertise it as *not* having such content.

    @Everyone shrieking that the PTC or what have you could “rate” games-

    Take of the tinfoil hats, the PTC could do no such thing because: A- The industry would never submit content to them for rating. And B- Developers don’t have PTC/NIMF/etc.. ratings on their packaging or advertisements. Thus, no deceptive marketing for the FTC to be involved in.

    @Ace of Sevens-
    No, section 5 is quite Constitutional. 1A is incorporated, meaning states aren’t allowed to infringe on it, and the Federal government can and does make laws to prevent States from infringing on rights (see also: Federal civil rights statutes). Congress can also regulate interstate commerce, and preventing States from arbitrarily banning/regulating things out of existence is par for the course.

  77. 0
    monte ( User Karma: 0 ) says:


    “It may be singling out games needlessly, as HC-type situations are isolated flukes. However it should survive a 14A challenge because games are unique in their ability to have things “hidden” in them.”

    i don’t know, what about movies on DVD. While the movies themsleves can’t hide content, they could place stuff on the DVD’s…

    and what about the possibility that after the rating is given the movie director could thrown in some content the reviewers did not see, kinda like a directors cut, but not tell anyone… The new content will be seen the moment of the movie is released, but the point of the matter is, is that the movie had content that the MPAA did not see prior to release.

    In fact, movies are usually rated months before the films are released… i’m not sure how things are done in the MPAA… do they rate the movie once during production, and then review it agian after it’s finished, or do they just keep the first rating. If it’s the later, then that means the MPAA isn’t nessasarily seeing the full content on the film prior to rating.

    Seeing as the point of the law is to make sure that the game developer doesn’t hold back vital, rate changing information from the ESRB, the Game industry could argue that it is possible for the movie maker to not give the FINAL film to the MPAA, giving them an early cut verion, and then release an uncut version to the public. The content in the uncut version may not be “hidden” in the same sence that hot coffee was hidden, but it still contains content the MPAA did not see.

    Example… a film maker makes a film that is on the edge between PG13 and R…when it comes time to send a copy to the MPAA, he decides to cut out some certain scenes… the MPAA rates the cut version PG13… the director later decides before releasing the film, that film is better with those scenes and puts them back in… the scenes however, happen to be enough to push it to an R rating… being irrespocible, he forgoes having the film re-rating, personally feeling the scenes weren’t “that bad”… The only thing that would prevent him from releasing the film in this way are VOLUNTARY efforts by the movie industry, just as the Game industry has voluntary efforts now… Based on this law, those efforts should be made as LEGAL efforts, just as they are being made for the game industry, as per due process.

    not so sure about all that though… i’m no expert when it comes to these kind of things

  78. 0
    GoodRobotUs ( User Karma: 0 ) says:

    Just to clarify on the modelling part, take something like Gothic 3. The main model will have the basic skeleton/ragdoll physics data etc, now, things like arms etc can be replaced with armoured models and still have the same phyics applied to them, but with the torso, it is often a lot easier to just place the armor over the torso model than try to remodel the whole chest section every time you want to add a new piece of armour. Take a look at the armour in Oblivion, it’s stand-alone equpiment, since it needs to be put on all kinds of model, Human, Elves and all the other races of Oblivion can all use the same type of armour, and it’s lot easier to have a transferrable mesh than to try and make 4-5 different torsos with the same armor on them.

  79. 0
    Sean Snyder says:

    OOOOOO man….I cannot wait to rite my paper all about this drama goin on in the videogame scene….:) Mr. Upton made me laugh when he said companies such as Take 2 & Rockstar in grounds for fines, that is so utterly wrong on his part. I “like” how he says, “I would have liked to have found Take 2 & Rockstar fined for millions of dollars for placing trash in the country” or something like that…Mr. Upton & all these other uptight politicians are completely avoiding the developer’s intention. Take 2 & Rockstar are not making the game, and slapping the words “GO OUT IN THE WORLD & CAUSE CHAOS”, they are simply depicting modern society as it is, (in Vice City’s case as it “was”), and allowing players to enjoy the alternate “world” & do what they can’t get away with on the streets in the game. I’m sick & tired of these political officials blaming the talented artist’s for the drama in the world, when it is people’s free will that plays a factor in what choice the individual makes after playing the video game. Think before ur speeches Mr. Upton, it helps out a lot..:)

  80. 0
    GoodRobotUs ( User Karma: 0 ) says:

    Actually, men have nipples too, that was why the texture had them, since in an unedited version of Oblivion still had bare-chested men. If it hadn’t had them, I suspect there would have been no nipples at all. Remember those textures were used for both men and women, that was how the modder was able to alter the file, and in order to do that, they had to physically alter the model itself, i.e. ‘unstitch’ the modelled ‘bra’ that female characters wear, and remove it from the body iirc? I certainly know that it involved downloading an altered model from the creator.

    And by ‘adding’ the clothes to a nude model, most RPG’s will do something like that, whether they replace the legs with a different model or not, there is usually a ‘base’ model that the engine works on.

    As far as processor power is concerned, an extra 100 invisible polygons is not going to make much of a difference in performance at all with modern graphics cards, and simple poly-removal routines would make that time delay even more negligable.

  81. 0
    Yuki says:

    Instant fail

    Having spent the time to review this particular bill in detail, it’s not gonna survive in court. While it doesn’t have the same direct content censorship as other bills, it still attempts to have government influence an industry that generates protected speech. This fact alone instantly dooms it. But added to it, it attempts to put a private organization not only under force of law, thus violating amendment 14, but it places it under independant review by the government, creating an Instant conflict of intrest. So, Mr. Upton, or as Jon Stewart called him “Out of touch Jackass”, has by his own hand made certain, that this bill dies the same way all the others did.

    Trust me, by this point, the industries lawyers are pros at killing BS laws like this.

  82. 0
    Yuki says:


    Since he’s trying to give the FTC authority it was never ment nor should ever have been able to have, I.E, the authority to asses actions based on content ratings, it’s a TRIPLE fail. Thats right ,Upton got the trifecta of bad law writing.

  83. 0
    F**ked up says:

    About the movies with “no” hidden content. Do you Remember Teen Wolf? you the one at the end were the extra flashed his lower member?

    hmm kind of reminds of game hidden content.


  84. 0
    voodooKobra ( User Karma: 0 ) says:

    We can’t have any more of this! Programmers need to lose their jobs and be charged with felonies for forcing sex into our homes “with the aid of custom software modifications and a handful of access codes that could potentially be used with the purchase of a third party accessory.” ~ Maddox (http://maddox.xmission.com)

    I think my point is clear.

  85. 0
    Joe Bourrie says:


    Yes, but it would be pointless to do so when you can transform the armor mesh to fit the body without creating a fully detailed, textured body.

    Looking into it further, Bethesda actually did “glue” a bra on the body. The only explanation I can think of is that the nudity was part of the original design (as it was with Morrowind before they cut it).

    “Oblivion still had bare-chested men. If it hadn’t had them, I suspect there would have been no nipples at all”


    Look at the texture displayed on this page, found in the data, and tell me that’s a texture for a bare-chested male. With a straight face.

  86. 0
    Joe Bourrie says:

    “The topless female skins in Oblivion were made by renaming a copy of the male texture pack and applying it to a base female mesh.”
    That is one feminine looking male texture :)

    Yes, it looks like that is exactly what it is (I had never downloaded the mod until now, which proves that the worst way to make something go away is by talking about it). What a bizarre circumstance, and a strange way to create a body mesh. Must have just been easier than storing a second texture. (?)

    I humble myself and admit that I was wrong.

  87. 0
    illspirit ( User Karma: 0 ) says:


    Bonus features on DVDs typically aren’t rated by the MPAA, and there is usually a disclaimer on the package stating this. As such, there is nothing deceptive going on there. Caveat emptor.

    As for rating the film itself, producers must submit a final edit for rating. The only changes which are ostensibly permissible thereafter would be minor post-production details like audio mixing or something. The MPAA has strict guidelines regarding content, going so far as counting the number of frames in any scene which could be in any way offensive. As such, any amount of real editing would require resubmitting the film in its entirety.

    @Joe Bourrie-

    The topless female skins in Oblivion were made by renaming a copy of the male texture pack and applying it to a base female mesh.


    Umm, this bill doesn’t give the ESRB force of law by any means. It would simply hold developers responsible in the unlikely event they lied to the ESRB with the intent to deceptively market their product as something it’s not. Which has nothing to do with the Tenth Amendment (which is where the “powers not delegated to the US…” bit is, not the 14th) as the ESRB wouldn’t be making any policy, judicial, or executive decision.

    And deceptive/unfair marketing is precisely what the Federal Trade Commission was empowered to monitor…

  88. 0
    illspirit ( User Karma: 0 ) says:


    Not to be sarcastic (honest), but are you sure you’re not reading version of the bill introduced in the last session or something? This does not give the ESRB powers to fine anybody. Nor does it give any Federal agency any oversight whatsoever over the ESRB. All it does is say (or clarify, rather) that developers who intentionally lie to a ratings board to get a false rating and then use it to deceptively market their product are, in fact, deceptively marketing their product.

    Such an overt act, were it ever to occur, would technically already be actionable on grounds of false advertising and contract law (both by breach of contract with the ESRB and the consumer). Precedent for this goes back to 18th century Common Law.

  89. 0
    illspirit ( User Karma: 0 ) says:

    @Joe Bourrie-

    Oops, you posted while I was posting before. IIRC, the texture in the link you posted were from a “Better Bodies Mod” or some such. I had the directions on the original topless mod backwards though. It worked by extracting/renaming the female mesh and sticking it in ..\Oblivion\Data\meshes\characters\_male\ to make the game load the male textures. But then I suppose it could be possible there were female textures hiding in the male data. On the other hand, the screens of the first hack of it looked distorted and stretched a bit, so, who knows.

  90. 0
    Yuki says:


    In the very text of the Bill itself ill. “age-based content rating”. Instant fail. But regardless, it is putting a private organization, which edits content, under the authority of a federal agency. As such, it leaves a private agency, which regulates content and assigns ratings, under goverment control.

    Tell me again how this is not violating any number of laws, not to mentions several amendments. Even if it’s not directly handing the ESRB force of law, it’s still placing a private agency under the legal authroity of the govermnet agency. Since such agency has the abilty to impose fines and other forms of action against a company under a law, it’s therfore putting it under government authority, thus giving goverment content censorship abilities.

    Penny arcade did a great comic about it that explains why this bill is so fucking wrong.

    Either way, I’ve spoken to several lawyers and they agreed, any good lawyer can blow holes in this bill easily, if not on constituional grounds, then on the conflict of intrest.

    I don’t doubt that the ESA team already has dozens of weakpoints targeted to exploit this.

  91. 0
    Yuki says:


    Perhaps I was misreading it, it would explain a few things. Perhaps you could clarify.

    1. Does this bill not give an independant ratings group, assigned by the government, the authority to over see the ESRB?
    2. Does it not require the ESRB to play all content in a game, even if they game has nearly unlimited content, such as MMO’s, or user created content such as mods.?
    3. Does it not grant the FTC authority to over ride the ESRB at the governments discrecion?

    I thought these were a major part of the bill, and the main reason why it had no chance to survive.

    has it been changed?

  92. 0
    SilverStar says:

    The excerpt posted makes the bill sound absolutely reasonable. If a game developer or publisher seeks to hide content in hopes of getting a lower rating, they should be punished. Severely. It’s fraud.

    But, excerpts very rarely tell the whole story.

  93. 0
    Brainswarm ( User Karma: 0 ) says:


    Actually, they took out the requirement that they play all the content in a game. Apparently, someone pointed out to the congressman that some games were in fact so long as to make that portion of the law impossible to follow, and therefore the industry could have the entire law dismissed on those grounds.

  94. 0
    Yuki says:

    Hmmmm, ok, I stand corrected. my bad. Was thinking it was the same as last year. This might not be a bad bill if it’s properly written, but even so, it’ might be un needed at this point

  95. 0
    Joe Bourrie says:

    “That said, one other question. Some games, like Oblivion, add clothes to models, using an asexual ‘barbie doll’ like texture.”

    This was not the case with Oblivion. It was a fully detailed female chest, nipples and all. And I can’t think of one game that actually puts “clothes on a model” like you describe because it would be a pointless waste of processing power and developer time. They swap in and out pieces of the model, the “body” is built right into the armor.

    Oblivion not only had these textures built in, but they were easily accessible, without mods, by opening the provided TES Construction Set game editor. Whether or not you think teh b00biez should have caused the M rating (which if they didn’t, the amount of gore did), Bethesda did in fact add a potentially “offensive” texture to the game without disclosing it to the ESRB.

    The only way this would have not been against the ESRB contract is if the second disc (TES Construction Set) was clearly marked as “Unrated Content”. This was, in every way, Bethesdas fault.

    The jury is still out on Hot Coffee, though.

  96. 0

    It was one stupid game by a stupid developer. They took access to the mini game out of the main game thinking that would be enough to stop people from finding it. They should have known better. Why punish the whole industry for the sins of a single developer?

    This will never fly. The FTC has no right to regulate the media.

  97. 0
    Tyetheczar says:

    That’s what you get when you’ve got Republicans, oy. Conservatives are bigots. >:x (_!_)
    Video game predjudice must DIE~! Who is with me, oy?!

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