New York Video Game Law: Exclusive FAQ

July 23, 2008 -

Q: Who sponsored New York's video game law?

A: There were two identical versions, one in the NY State Assembly and another in the NY State Senate. The Assembly version (A.11717) was sponsorsed by Assemblyman Joseph Lentol (D, Brooklyn). The Senate version (S.6401-A) was sponsored by Sen. Andrew Lanza (R, Staten Island).

Q. How was it voted on in the legislature?

A. The Assembly version was passed 137-1. The Senate version passed 61-1.

Q. How did the bill get to be law?

A. After approval by the Assembly and Senate, Gov. David Paterson (D) signed it into law on July 22nd.

Q. Is this the same legislation that former Gov. Spitzer was favoring before his hooker incident cost him his job?

A. No. The bill under consideration last year would have made selling an M-rated game to a minor a felony crime. There is no such provision in this law.

Q. What does the law require?

A. The law requires:

  • Video games sold by retailers in New York State which have a "standardized" and "commonly used" (e.g., ESRB)  rating must display that rating on the outside of their packaging.
  • New console systems sold in NY State must have parental controls
  • A 16-member advisory council, appointed by the Governor, will a.) study the relationship between violent media and youth violence b.) evaluate the effectiveness of the ESRB rating system and make recommendations concerning it c.) study the potential of creating a parent-teacher violence awareness program to identify and assist potentially violent student

Q: Does the law apply to games sold online as well as in retail stores?

A: No. Although Sen. Lanza's website initially claimed that it did, a reading of the legislation shows that "mail order" businesses, which under NY law include online retailers, are exempt from the rating requirements. GamePolitics contacted Sen. Lanza's staff, which said that the online comment was a mistake and does NOT apply. The law applies ONLY to so-called "brick and mortar" retailers.

Q: Are the current ESRB ratings & content descriptors sufficient to meet the requirements of the law?

A: Yes. As long as a video game available at retail displays an ESRB rating and its associated content descriptors (and they already do), the retailer is in compliance.

Q. What about small publishers or independently created games which are not submitted for an ESRB rating?

A. As long as they are sold via online, no problem. They aren't required to be rated.

Q. Are used games subject to the law?

A. If they are sold at retail, yes, but not for online sales, Ebay, etc.

Q. Do all games sold in New York have to display a rating?

A. Not exactly. Only games that are rated must display the rating. If an indie developer, for example, created a game, did not pay the ESRB to rate it, and sold it on his own, through non-industry retail channels, doing so would not violate the law. For all practical purposes, however, that's a non-issue. All major retailers require games to be rated by the ESRB.

Q. When does the rating requirement take effect?

A. 120 days from the Governor signing the bill, approximately November 18th, 2008.

Q. As far as the parental control requirement for consoles, when does that take effect?

A. September 1, 2010.

Q. Why is there a delay?

A. "In order to permit the industry to adjust accordingly." We assume that relates to giving retailers time to clear their inventory of any remaining older consoles which lack parental controls, or perhaps giving the industry time to devise parental controls (although they are already in place for the current console generation).

Q. Does the law apply to sales of used systems?

A. No, it applies to new systems only.

Q. Are PC's considered game systems under the law?

A. No, they are specifically excluded.

Q. Are handhelds like the DS or PSP subject to the law?

A. No, they too are specifically excluded.

Q. Who will serve on the Advisory Council?

A. That is up to Gov. Paterson, who will appoint the 16 members. According to the law, 14 of the members should have expertise in juvenile violence issues, while one seat goes to represent video game retailers and another goes to represent video game "manufacturers" (we believe they mean publishers).

Q. How long do the Advisory Council members serve? Are they paid?

A. Three years. They are not paid.

Q. When does the Advisory Council take effect?

A. Immediately.

Q. What are the penalties for violating the law?

A. In regard to selling consoles without parental controls, to quote from the legislation: "Whenever the court  shall  determine  that  a  violation...  has  occurred, the court may impose a civil penalty of not more than five hundred dollars for a single violation and not more than fifty thousand dollars for multiple violations resulting from a single act or incident." As regards selling a game without a visible rating, the penalty is a civil fine of $100.

Q. What has been the video game industry's response to the law?

A. Prior to the Governor signing the bill, the ESA, representing game publishers, asked members of its Video Game Voters Network to urge the Governor not to sign. Now that the bill has been signed, the ESA has not said what course of action it plans to take. The EMA, representing video game retailers, also opposed the bill as unnecessary. While the organization has not officially declared its course of action, initial comments seem to indicate that it believes its members can live with the law because it essentially changes nothing. Moreover, there has been a law in NY State for some years requiring DVDs sold at retail to display ratings which apparently has not impacted retailers in any material way.

Q. Why is this law different from numerous other laws that the game industry fought (and beat) in court?

A. The main reason is that there is no attempt to regulate the sale of any game. Other laws typically called for a fine or even the arrest of a retail clerk who sold an M-rated game to an underage buyer. There's nothing like that in the NY law.

Q. Are there other laws that the video game industry has not opposed?

A. Yes. There are laws requiring that information about the industry's rating system be posted in retail stores on the books in several states, including California, Washington, Georgia and Michigan. In Maryland there is a law making it illegal to sell a video game containing pornographic content to a minor which was not opposed by the industry.

Q. What other groups have opposed the law?

A. A number of groups have expressed concern. They include:

  • NY Civil Liberties Union
  • Americans for Tax Reform
  • Media Freedom Project

Q. Will any of these groups sue to block the law, even if the game industry doesn't?

A. That remains to be seen. GamePolitics was in touch with the NYCLU on July 23rd, but they had not decided upon a course of action at that point.

Q. What would be the constitutional arguments against the NY law?

A. One argument is that by using government power to mandate that there must be a rating on a game or parental controls built into consoles, it is thus "compelled speech," a free speech no-no. The advisory council, it could be argued, is a governmental oversight agency that will impose its will on the industry's content rating process.

Q. Are there political risks to the video game industry in fighting the law?

A. Possibly. Since the law basically affirms parental resources that are already in place, fighting the law might be portrayed by game industry critics in terms of the industry not being serious or committed to the permanence of its ratings and/or parental controls.

Q. Where can I find all GamePolitics reports on the NY law?

A. Click here.

Q. Where can I find a copy of the legislation?

A. Here

Q. Is it true that before he was busted as a client of a call girl ring, former Gov. Spitzer attacked the inclusion of hookers in Grand Theft Auto when he was pushing video game legislation in 2006-2007?

A. LOL, yes. In fact, GamePolitics readers named him Gaming's Biggest Political Hypocrite over the call girl issue.

GP: We will be updating this FAQ as new information/developments become known.

Comments

Re: New York Video Game Law: Exclusive FAQ

Dear GamePolitics,

You've changed the FAQ text to read that "Video games sold by retailers in New York State must have a 'standardized' and 'commonly used' rating displayed on the outside of their packaging", but you've failed once again to point out the following, taken from the bill itself:

"This section shall not apply to ... ANY VIDEO GAME, which has not been given a rating, nor shall it apply to any ... VIDEO GAME which has been altered subsequent to receiving a rating."

I hope I'm not talking to myself here.

Re: New York Video Game Law: Exclusive FAQ

This is a really important point.  I hope that People do realize this.  This entire law is both to make people feel good and to set a base for precedent in the future nothing more.  At absolute best this law is a waste of tax dollars.

Re: New York Video Game Law: Exclusive FAQ

I honestly do not understand why everyone is getting their knickers in a twist over this. One, games already proudly display their ratings. Two, shops should be fined if they sell games to minors. Three, this advisory council is a joke and will be a huge waste of time and money because it will never get anything done. (Committees = procrastination.) Really, I can't see this making much difference to the games industry.

 - In the beginning, there was nothing. So God started making stuff.

- In the beginning, there was nothing. So God started making stuff.

Re: New York Video Game Law: Exclusive FAQ

Because it's a waste of tax payers' money and lawmakers' time.

The ratings and parental control requirements are already voluntarily and universally followed by the gaming industry, so why spend money and time to legislate on it?

At worst the advisory council will be nothing but a grandstand for moral crusaders, at best it's a body that makes recommendations based on half-assed research or outright lies by people with their own agendas.

As a New York State taxpayer I'd prefer they used all that time and effort figuring out how to defeat MTA's proposed fare hike. I'm sure I'm not alone.

-- http://pixelantes.blogspot.com/

Re: New York Video Game Law: Exclusive FAQ

What's the definition of a "retail" store? If a pawn shop counts, then that means that pre-ESRB games (like the original Super Mario Bros, hell, all games before 1994) would be unable to be sold. I go to Gamestop and see old Sega, SNES and NES games, those would be illegal to sell. Think about it, this would affect sales, and IS unconstitutional.

Re: New York Video Game Law: Exclusive FAQ

Pawn shops would probably come under "used games", which are exempt.

EDIT: Except they aren't as it's used systems that are exempt. Oops.

/b

Re: New York Video Game Law: Exclusive FAQ

What Gmaestop do you go to that has Sega, NES and SNES games? None here in Oklahoma carry them.

E. Zachary Knight
http://www.editorialgames.com
Oklahoma City Chapter of the ECA
MySpace Page: http://www.myspace.com/okceca
Facebook Page: http://www.facebook.com/profile.php?id=1325674091

Re: New York Video Game Law: Exclusive FAQ

Some Virginia GameStop's carry them as well. My sister bought a bundle of old-school SNES games a few months back, to get her oldest kid hooked (6 years old) hooked on the classics.

Re: New York Video Game Law: Exclusive FAQ

Novi, Michigan, lol. They have a section for really old used games. I also herd tehy r hoarding battletoads from us...

Re: New York Video Game Law: Exclusive FAQ

Scratch my last statement. Looking 1 comment down, I saw that pre-ESRB games are excluded....so really, it doesn't affect anything, but is still unconstitutional

Re: New York Video Game Law: Exclusive FAQ

No shops should not be fined. The government can not fine people for selling something which is protected speech.

Re: New York Video Game Law: Exclusive FAQ

There's a difference between 'protecting [free] speech', as you put it, and selling games illegally (which is pretty much what is happening when a game is knowingly sold to someone underage). The fact that it's a fine is irrelevant in the grant scheme of things: it's a deterrent, nothing more. And I think there should be a deterrent in place to stop minors getting their hands on M-rated games.

 - In the beginning, there was nothing. So God started making stuff.

- In the beginning, there was nothing. So God started making stuff.

Re: New York Video Game Law: Exclusive FAQ

Actually, its not illegal. Its a voluntary system, and stores don't have to follow it even.

Re: New York Video Game Law: Exclusive FAQ

My knickers are in a twist over this because my money which I'd would rather spend on gas money, insurance costs, and apparently the knickers that I wear has to be spent on pointless laws that essentially are laws insured to get everyone involved with said pointless law a favorable look in the eye of the voting public come this election year.

Taxes on Long Island are expensive enough as it is and I don't need to pay taxes for this....

Re: New York Video Game Law: Exclusive FAQ

Knickers are getting twisted, as you say, because the bill would be a dangerous precedent for industry detractors to point to when trying to pass more harmful bills.  Think of it as baby steps; someone proposes another law that's just a little different from this one, but in a significant, damaging way.  Then they say "well, this one passed, and we're almost the same thing.  You didn't oppose that one, why are you suddenly trying to oppose this one?"

It also takes some of the bite out of the constitutionality argument.  If we don't oppose this one, it de-legitimizes any future attempts to use that defense.  "If it didn't apply to the 2008 NY law, why does it apply now?"

We can't wait for them to put one up that actually hurts us to oppose it.  If it's wrong, it needs to be opposed, end of story.

Re: New York Video Game Law: Exclusive FAQ

@llumi:  You are 100%...no, 150%...no, 20000% correct.  This is just the first step to getting a legal precendent set that goes unchallenged.  Then they will extend the reach a little bit, and wait for that to be no big deal...then again, and again, and because people were willing to accept each step unchallenged, each one becomes legal precedent and accepted practice.

We MUST fight every step, no matter how "toothless" it is.  I'm pretty disappointed in Gamepolitics' seeming laid-back stance on this.  The toothlessness is a smokescreen to hide future development and intrusion into protected speech.

Do not be fooled.

Re: New York Video Game Law: Exclusive FAQ

What a foolish eargument.

It is entirely possible that this bill ISN'T the first in a large series of steps.

But still just because we don't challenge this bill doesn't mean we have less legal footing to stand on in terms of challenging future laws. The proposed argument 'well you didn't oppose the last bill why are you opposing this one?' isn't a valid argument. Different laws different circumstances. Shouldn't each law be decided on a case by case basis instead of acting like each law will automatically lead to more restrictive laws being passed?

Imagine if our court system acted that way

"If I allow to use Excuse C as a good enough excuse to get you off the hook future defendants will use Excuses D, E, F and eventually Excuse J as good excuses [in this scenario assume that the further you go into the alphabet the excuses get looser, crappier and allows for less personal responsibility]. I can't allow people to use Excuse J as a legitimate defense (even though you are using excuse C) so you are guilty."

In both this law and the aforementioned scenario we can use court precedent to draw a line in the sand in terms of what is and isn't appropriate legislation or excuses.

---------------------------------------------------- Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

Re: New York Video Game Law: Exclusive FAQ

@ Father Time

Darlin' I'm not even a Law Student and I know that is actually how the legal system works. You -DO- take baby steps to larger more dangerous bills because the courts and the public will notice the change less then rushing forward and saying "M-Rated games are bad! Ban them all!" you simply up the stakes a little at a time...

Also, Legal Precidence is exactly how Judges rule on cases, they look at past cases and the circumstances, match it up to the current case and take the punishment that fits. I'm sorry you think it works differently however, it doesn't This is how the Judicial system works. Thats why firsts of their kind try to get the maximum sentance in cases like unusual murders and stuff so that all criminals that follow that line will be likely to get the maximum sentance. Court rooms are games, politics, they don't call it a three ring circus for nothing you know.

Re: New York Video Game Law: Exclusive FAQ

 

But a precedent is only created when there has been a court judgment. In this situation there are no 'baby steps',  as there has been no case. The only way in which the first step is taken is if this NY Law was challenged and found to be Constiuttional.

In many ways it is sensible to leave this law alone, as it is quite easy to live with, and keep the constiutional powder dry for a more more dangerous provision that may be passed in the future.

Re: New York Video Game Law: Exclusive FAQ

This is incorrect.  The courts don't need a case to cite precedent; the lack of a challenge right now would be more than sufficient.

Re: New York Video Game Law: Exclusive FAQ

"Darlin'"?

Could you be any more patronising? Who are you, Cooper Lawrence?

Re: New York Video Game Law: Exclusive FAQ

"Imagine if our court system acted that way"

LOL, your funny!

Re: New York Video Game Law: Exclusive FAQ

You are so obviously unfamiliar with how both the judiciary and the legislatures work in this country.

 
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