A Legal Analysis of Brown v. EMA

July 8, 2011 -

            No doubt everyone has heard the good news out of the Supreme Court last week. Video games are saved from government censorship based on violent content, California’s law prohibiting the sale of violent video games to minors is invalid, good times had by all. This article is for those curious as to the how and why of this outcome, and will take readers through the Court’s principal opinion written by Justice Scalia (which is the governing law and will be used as precedent everywhere in the US from now on) as well as touch on a few points from other opinions penned by other Justices.

 

U.S. Supreme Court Upholds Ninth Circuit Decision in Brown v. Entertainment Merchants Association

June 27, 2011 -

The United States Supreme Court has ruled in favor of the video game industry and retailers in Brown v. Entertainment Merchants Association (formerly known as Schwarzenegger v. Entertainment Merchants Association). The full opinion can be found here. According to Justice Scalia, who wrote the opinion: "the act forbidding sale or rental of violent games to minors does not comport with the 1st Amendment." Alito concurred with the judgment, joined by the Chief Justice. Justices Thomas and Breyer dissent, in an opinion by Thomas - according to SCOTUSBlog.

The court had to decide if a state law restricting the sale of violent video games to minors violated the First Amendment right to free speech. The Ninth Circuit Court ruled in favor of the EMA, saying that the law violated the First Amendment.

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Lead Counsel In SCOTUS Violent Games Case Lays Out Arguments

October 7, 2010 -

The lead counsel for the video game industry in the upcoming Supreme Court fight against California’s proposed violent video game restrictions outlined the problems with the state’s legal arguments in a recent public appearance.

Speaking at an intellectual property forum at Chicago-Kent University last week, Jenner and Block LLP Partner Paul M. Smith said that no matter how a state defines "extreme" violence in such laws, they will run into constitutional problems with vagueness.

"I've litigated nine cases in a row where states have tried to define the category nine different ways – and they always lose when they make this case because violence is considered a perfectly appropriate and normal part of what we give our kids to see starting from a very young age," he said.

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Justice Elena Kagan Questions Her Decision in 'Brown v. EMA'

December 30, 2014 - GamePolitics Staff

Supreme Court Justice Elena Kagan says that she still isn't sure if she made the right decision in Brown v. EMA, which brought the law sponsored by California State Senator Leland Yee (D-San Francisco) before the highest court in the land. Ultimately the court sided with the video games industry and free speech advocates, saying that video games are protected speech under the First Amendment.

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'Alice v. CLS' Supreme Court Ruling Strikes Again

September 19, 2014 - GamePolitics Staff

Another day, another patent case tossed out on its ear thanks to the Supreme Court ruling on Alice v. CLS. This time out it's Lumen View Technology, who had its case against Santa Barbara-based startup FindTheBest thrown out. At first the company approached FindTheBest asking it to pay a settlement of $50,000 for a "do it on a computer" patent related to data matchmaking.

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SCOTUS Decision in 'Alice v. CLS Bank' Having Profound Effect on Computer-Related Patents

September 15, 2014 - GamePolitics Staff

The US Supreme Court's June 26 decision in Alice v. CLS Bank is having a profound effect on computer-related patent fights; the federal courts have already invalidated 11 "do-it-on-a-computer" related patents since that ruling, according to this Ars Technica report.

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Legal Scholar: 'Davis v. Electronic Arts' Perfect for Supreme Court Review

September 10, 2014 - GamePolitics Staff

An appellate case in court this week brought by former NFL players over the use of their likenesses in video games created by Electronic Arts could make its way to the U.S. Supreme Court, according to William Ford, a professor who teaches intellectual property law at The John Marshall Law School in Chicago.

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Supreme Court Decision Questions the Validity of Some Computer and Software Patents

June 19, 2014 - GamePolitics Staff

While a new Supreme Court decision may cut down the number of valid software patents, experts generally agree that it will not eliminate them altogether. The Supreme Court ruled on Thursday that a patent related to a centuries-old financial concept was invalid because it was an abstract idea, even when the concept is implemented through a computer system.

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Author Lists Brown v. EMA as One of the 'Worst Decisions of the Supreme Court'

March 5, 2014 - GamePolitics Staff

A national press tour for the Fourth Edition of Joel D. Joseph's book chronicling (what he believes) are the worst decisions made by the United States Supreme Court in recent years is about to get underway. The book was published by Imprint Books in December of last year and was recently updated with new material.

EFF Urges SCOTUS to Clean Up Software Patent Law in Amicus Brief

March 3, 2014 - GamePolitics Staff

The Electronic Frontier Foundation (EFF) has asked the U.S. Supreme Court to reign in overbroad patents and "clean up the mess that is software patent law" in an amicus filed last Thursday. The EFF's amicus brief was related to a case the court is set to hear: the long-running Alice Corp. v. CLS Bank. The case is over a patented computer system that helps close financial transaction by avoiding settlement risk.

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Supreme Court Denies NCAA Request in College Sports 'Likeness Case'

January 15, 2014 - GamePolitics Staff

Earlier this week the U.S. Supreme Court rejected the National Collegiate Athletic Association’s (NCAA) attempt to become a party to a lawsuit regarding the rights of the NCAA and other entities to use athletes’ likeness in video games, publicity purposes, and other materials.

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NSA Will Continue Bulk Spying Despite Lawmakers Efforts

December 12, 2013 - GamePolitics staff

An interesting report on Ars Technica reveals that the National Security Agency would continue bulk spying activities even if Congress passes a law forbidding them to do so. In fact, the agency would likely take the fight to court - though which court that would be remains uncertain.

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U.S. Supreme Court to Hear Software Patent Case

December 9, 2013 - GamePolitics Staff

On Friday the Supreme Court announced that it will take on a case that will examine the validity of software patents. The court will hear Alice v. CLS Bank, which will attempt to answer the question of whether so-called software patents are impermissibly abstract. In May of this year a divided federal court was deadlocked on the case, with five judges voting to strike down patent claims to a "computer system programmed to implement a financial transaction," and five judges ruling to uphold the claims.

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Keller v. EA Delayed for Supreme Court Review Petition

August 22, 2013 - GamePolitics Staff

It looks like Electronic Arts is getting a little breathing room from the Ninth Circuit Court of Appeals in San Francisco this week concerning Keller v. Electronic Arts.

On July 31 the Ninth Circuit ruled that the company wasn’t protected by the First Amendment from former college athletes’ claims that the company violated their rights by using their likenesses in its NCAA Football games without paying compensation or getting permission.

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Supreme Court Justice Kagan Played Video Games to Prepare for Brown v. EMA

August 21, 2013 - James Fudge

There's a common perception that the Supreme Court justices rely too heavily on the opinions of their younger staffers when it comes to technology. But a story on Talking Points Memo reveals that at least some of the justices are trying a bit harder to learn things on their own - particularly when it comes to technology that is completely foreign to them.

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Free Speech and Lap Dances: NY's Exotic Dancing Tax May Get Supreme Court Review

August 8, 2013 -

The U.S. Supreme Court is considering a review of the 677 New Loudon Corp. v. State of New York Tax Tribunal, following a decision from the New York Supreme Court that the state government may tax exotic dancing but not other forms of dancing. Free speech advocacy group Media Coalition thinks that if the Supreme Court were to review this decision, it would likely overturn it because it violates the First Amendment. The group recently filed an amicus brief with the court urging it to review the case.

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Two Years Ago Today, Video Games Won In The Supreme Court

June 27, 2013 -

Two years ago today, the US Supreme Court ruled in favor of the First Amendment rights of gamers and the games industry. This ruling came about after years of legal battles between the games industry and various states. This particular ruling was over a legal dispute between the state of California and the games industry.

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Supreme Court Rules That First Sale Doctrine Not Limited by Geography

March 19, 2013 -

Broadcasting Cable reports that the U.S. Supreme Court has overturned a Second Circuit ruling on a First Sale Doctrine case that could expand its protections beyond U.S. borders. The court ruled that the Second Circuit court erred when it ruled that First Sale Doctrine did not apply to work legally made abroad and imported into the United States.

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Lead Council on Brown v. EMA Joins Media and Entertainment Law Firm

July 16, 2012 -

Former Entertainment Software Association (ESA) senior vice present and general counsel Kenneth Doroshow has joined the law firm of Jenner & Block as a partner. Jenner & Block is a law firm that specializes in media and entertainment and is located in Washington D.C.

Doroshow and Jenner & Block partner Paul Smith led the legal team that won the Supreme Court Case Brown v. EMA. The court ultimately struck down the California law authored by California State Senator Leland Yee (D- San Francisco).

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How the Internet Helped Shape Opinions on Brown v. EMA SCOTUS Decision

July 9, 2012 -

In the old days, Supreme Court Justices had very little information to turn to outside of legal briefs presented by combatants and case law when making a ruling, but a new study by William & Mary law professor Allison Orr Larsen finds that justice are increasingly turning to information on the Internet to shore up their opinions. According to research from Larsen, there were more than 100 instances where justices used information on the Internet in their opinions.

Supreme Court Poised To Rule On Important First Sale Case

June 15, 2012 -

The First Sale Doctrine has been an important part of copyright law for well over a hundred years now and an important part of the gaming culture for the last 30 years or so. Unfortunately, these last few decades have also seen a lot of effort to erode what protections consumers have to resale their property without the permission of the copyright owner. Once again, the Supreme court is poised to rule on how far the protections the First Sale Doctrine go when it comes to copyright.

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WildTangent Patent Fight Could Change Future Patent Claims

May 30, 2012 -

Last week the Supreme Court told the Federal Appeals Court that it needs to reconsider its ruling in WildTangent, Inc. v. Ultra- mercial, a patent infringement battle that relates to seeing paid advertisements before viewing or using copyrighted material online. Business leaders like Google and Verizon have sided with WildTangent on this one, as well as the Electronic Frontier Foundation. The tech industry is also watching this case very carefully because it could signal an end to patents with weak definitions or general software ideas or techniques being awarded easily.

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Sandra Day O'Connor's 'Counties Work' Game Launches

May 3, 2012 -

The nonprofit started by retired Supreme Court Justice Sandra Day O'Connor has launched an online game to teach children about their local government. O'Connor is spending her time in retirement pushing the idea that children and Americans in general need to learn more about their state, local, and federal governments. The game is called Counties Work, and was put together by O'Connor's group iCivics and the National Association of Counties.

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Supreme Court to Revisit First Sale Doctrine in Next Term

April 17, 2012 -

The Supreme Court will hear a case related to the First Sale Doctrine. The court decided Monday that it would hear arguments in its next term related to a case that will test the reach of U.S. copyright law outside of the United States. The Federal circuit courts of appeal are split on the issue. The case is Kirtsaeng v. John Wiley & Sons (docket 11-697).

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EFF Takes Patent Fight to the Supreme Court

March 9, 2012 -

The other day we showed you an Infographic the Electronic Frontier Foundation (EFF) made concerning the harm that the current patent system in the United States. Today we'll tell you what the advocacy group is doing about it on the legal front.

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Happy Thanksgiving!

November 24, 2011 -

GamePolitics is going dark today in observance of Thanksgiving and boy howdy do gamers like us have oodles to be thankful for this year.  Fall 2011 is jam-packed with more awesome video games than most will ever have the time (or money) to play.  See the bottom of Leland Yee’s recent “Don’t buy these video games” press release to parents for a few good suggestions.

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Thinkfinity Education Speaker Series Interviews Sandra Day O’Connor

October 13, 2011 -

In an exclusive interview with Verizon Foundation's Thinkfinity Education Speaker Series, retired U.S. Supreme Court Justice Sandra Day O’Connor urged educators in the United States to do their part to enliven civics education and engage students in the democratic process.

"You have to study [civics] and be taught how our system of government works," Justice O’Connor said. "And you have to be shown how each individual can be part of it and can make things work.”

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Brown v. EMA Expenses Kicked to Ninth Circuit

October 3, 2011 -

It looks like the State of California and the Entertainment Merchants Association (EMA) have not quite completed their courtroom business together, but the rest of their battle will take place in a lower court.

The Supreme Court of the United States chose not to make a ruling on the EMA’s request that the court award it $1.4 million in attorney’s fees and expenses related to Brown v. EMA (08-1448). Instead, the court sent it back to the Ninth Circuit Court for adjudication.

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Sony Changed ToS Because of AT&T Mobility v. Concepcion Decision

September 21, 2011 -

You may think the unprecedented and massive security breach that took down multiple Sony services including Sony Online entertainment and PlayStation Network is what pushed Sony to make the changes it did recently to the PSN Terms of Service, but a CNN report points to another reason: The Supreme Court. Last week Sony changed the document for PlayStation Network asking customers to give up their rights to file class-action lawsuits against the company and its partners.

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Paul Smith and Gaming the Courts

August 4, 2011 -

Metro weekly profiles Paul Smith, one of the leading Supreme Court litigators in the country, and particularly his noteworthy work on Brown v. EMA. But before tackling that landmark case, Smith has (and still does) fought to advance gay equality in the courts. Smith was a key factor in successfully arguing Lawrence v. Texas before the Supreme Court in 2003, which resulted in ending sodomy laws.

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Andrew EisenIf you do, I hope you can provide some examples of people (again, other than random no-name numbnuts on Twitter) who are genuinely trying to dictate what should and should not be allowed so far as themes, topics, language, plot devices, etc. go.07/01/2015 - 9:43am
MattsworknameI'd go into why I think it's a bigger problem then most realize, but nows not the time really. I'll catch up with everyone later07/01/2015 - 9:42am
Andrew EisenThat's the thing though, rarely is anyone (again, other than random numbnuts on Twitter) attempting to dictate what can and cannot be said or done.07/01/2015 - 9:39am
Andrew Eisen"Don't write rape scenes" is being offered as advice (along with reasons for that advice) not a mandate.07/01/2015 - 9:37am
MattsworknameOh, on that last one andrew I wasn't talking about the article, I was being more general, lately it seems like all the news and media is trying to decide what is and isn't proper to say. Thats what i was refering to.07/01/2015 - 9:37am
Andrew EisenPerhaps you should consider reading the entire article. Despite quotes you can pull from the intro and conclusion, the author isn't arguing that you can't or shouldn't be allowed to cover a certain topic.07/01/2015 - 9:35am
MattsworknameOne of the things I hate right now is that people are trying to be the deciders of what is and isn't proper to be said. It's political correctness to a level that makes me angry.07/01/2015 - 9:29am
Mattsworknamemake them, i just tell peopel that I think what they did sucked. Just cause I dont like what they did, doesn't mean I can tell them "You shouldn't wrtie that" cause thats just another step on the way to telling them "YOU CANT WRITE THAT".07/01/2015 - 9:24am
MattsworknameNo, but you or I aren't the one to tell someone else what they can or cannot do beyond EXTREMELY narrow limits. Telling a person then shouldn't write something or say something. I may hate certain movies or music, doesn't mean I dont' tell peopel not to07/01/2015 - 9:23am
E. Zachary KnightHasbro is taking steps to fix its Dinosaur gender issues. http://io9.com/the-jurassic-world-dinosaur-toys-are-clever-girls-again-171513589607/01/2015 - 9:20am
TechnogeekImagine that level of accuracy, only applied to something that has actually caused physiological and psychological trauma in more cases than just whatever the equivalent of the CD-i Zelda games would be.07/01/2015 - 8:40am
TechnogeekThat's the issue I see as well, E. To put it in terms anyone reading this site will likely understand: you know how any time video games show up on TV, they feature absurdly outdated 3D graphics and/or audio from the Intellivison era?07/01/2015 - 8:40am
InfophileWell, you CAN go to a crowded streetcorner and tell everyone who passes by your social security number and bank account PIN, but you shouldn't. Is that censorship?07/01/2015 - 8:36am
E. Zachary KnightSo if it is going to turn out to be a bad scene, why even bother writing it?07/01/2015 - 8:07am
E. Zachary KnightMatts, Goth, The article, and others I have read making the same conclusion, state that most people fail in their attempts to write rape scenes without being overly offensive or overly incompetent in their attempt.07/01/2015 - 8:07am
Adam802http://www.sfgate.com/news/article/Ex-Sen-Leland-Yee-may-be-headed-for-a-plea-deal-6358941.php07/01/2015 - 7:12am
Adam802Possible plea deal in Yee case: http://www.mercurynews.com/crime-courts/ci_28408532/leland-yee-case-plea-deal-appears-likely07/01/2015 - 7:11am
MattsworknameInfo, Im with goth on this, the moment people start saying "You can but you shouldnt" thats a slow slide into censorship07/01/2015 - 6:05am
InfophileIn other words, you stopped when you found out it was arguing for a position you disagreed with, but before you found out why.07/01/2015 - 5:29am
Goth_Skunk"In short, anyone can write a rape scene—but should they? Chances are, the answer is no." And that's where I stopped reading.07/01/2015 - 5:11am
 

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