The Interactive Digital Software Association (IDSA) joined leading retail and
game development groups in filing a lawsuit in the U.S. District Court of Seattle,
Wash., challenging the constitutionality of a recently enacted Washington state
statute (Washington state HB1009) seeking to ban the sale to minors of certain
video games.

“Earlier this week, the Eighth Circuit Court of Appeals unanimously
and resoundingly ruled that video games are a constitutionally protected form
of expression with the same First Amendment status as art, books, film, and
music,” said Douglas Lowenstein, president of the IDSA. “Based
on this decision, and a similar one issued by the Seventh Circuit Court of Appeals
in 2001, we believe the Washington statute will be struck down as well.”
. . .

The IDSA joined the lawsuit with co-plaintiffs the Washington Retail Association,
the Video Software Dealers Association (VSDA), the Interactive Entertainment
Merchants Association (IEMA), the International Game Developers Association
(IGDA), and Hollywood Video.

“While we share the state’s objective to restrict the ability of children
to purchase games that might not be appropriate for them, we passionately oppose
efforts to achieve this goal by running roughshod over the constitutional rights
of video game publishers, developers and retailers to make and sell games that
depict images some find objectionable,” said Lowenstein. “We
believe a combination of voluntary enforcement at retail and consumer education
about video game ratings is vastly preferable.”

The lawsuit argues that the Washington statute is a content-based restriction
on the dissemination of fully protected expression. The lawsuit also points
out that the legislation targets only games with depictions of violence to “public
law enforcement officer(s)” yet there is no definition of the term.

“Does it cover plain clothes police, does it cover corrupt police,
does it cover a Gestapo agent, a futuristic policeman, or even a game where
police cars crash when players throw bananas at them? The law’s definitions
and terms are unconstitutionally vague, making it impossible for developers
and publishers to know what depictions will run afoul of it, and for retailers
to know what games they can and cannot sell,” said Lowenstein.

“VSDA wishes that the legislature and the governor had stood up for
the First Amendment and rejected this law when they had the chance,”
VSDA President Bo Andersen said. “Unfortunately, they chose censorship
instead of free speech, and now we must petition the courts to protect the First
Amendment rights of retailers to offer and their customers to rent and buy the
video games of the customer’s choice. We are confident that the courts will
vindicate those rights.”

“Game developers take their creative responsibilities very seriously,”
stated Jason Della Rocca, program director of the IGDA. “As video games
emerge as the art form of the 21st century, developers need the freedom to explore
and express all aspects of the human condition. Having state-enforced regulation
would stifle creativity –and consumer choice — to a point that would simply
not be accepted in other forms of art and entertainment.”

Computer and video games are rated by the Entertainment Software Rating Board
(ESRB) with both age-appropriateness ratings and content descriptors on each
box. The ESRB system has been called a model for other industries by Senator
Joseph Lieberman (D-CT). The industry has been proactively working with retailers
to improve ratings enforcement at the point-of-sale and to increase parental
awareness of the rating system. According to the U.S. Federal Trade Commission,
parents are involved in the purchase of games 83 percent of the time.

“IEMA has worked to educate parents about the ESRB rating system so
they may make appropriate entertainment choices on behalf of their children,”
said Hal Halpin, president of the Interactive Entertainment Merchants Association.
“Further, the majority of IEMA members have voluntarily begun restricting
the sale of M-rated product to minors. But we oppose this law both because it
violates our consumer’s First Amendment rights, and it is unenforceable and
impossibly vague. Retailers cannot and should not be made to be the content
police, and we are confident that the court will agree.”

Concluded Lowenstein: “If the state really wants to keep content they
feel is inappropriate out of children’s hands, they should redirect the time
and money they’ve put behind this legislation into helping us further the work
we are doing to implement voluntary enforcement measures at retail and enhance
parental awareness and use of the ESRB ratings. We believe Washington families
would be far better served by these efforts than by laws that seek to turn retailers
into surrogate parents.”

The plaintiffs are represented by Paul M. Smith and Deanne E. Maynard of Jenner
& Block in Washington, D.C., and David J. Burman of Perkins Coie in Seattle,
Wash.

The IDSA is the U.S. association dedicated to serving the business and public
affairs needs of the companies publishing interactive games for video game consoles,
handheld devices, personal computers, and the Internet. IDSA members collectively
account for more than 90 percent of the $6.9 billion in entertainment software
sales in the U.S. in 2002, and billions more in export sales of American-made
entertainment software. The IDSA offers services to interactive entertainment
software publishers including a global anti-piracy program, owning the Electronic
Entertainment Expo trade show, business and consumer research, government relations
and First Amendment and intellectual property protection efforts. For more information,
please visit www.idsa.com.

About the VSDA
Established in 1981, the Video Software Dealers Association (VSDA) is the not-for-profit
international trade association for the $20 billion home entertainment industry.
VSDA represents more than 1,200 companies in the United States, Canada, Europe,
Asia, South America, and Africa. Its members operate more than 10,000 retail
outlets in the U.S. that sell and/or rent DVDs, VHS cassettes, and console video
games, including approximately 250 outlets in the state of Washington. Membership
comprises the full spectrum of video retailers (from single-store operators
to large chains), video distributors, the home video divisions of major and
independent motion picture studios, and other related businesses that constitute
and support the home video entertainment industry. For more information, please
visit www.vsda.org.

About the IGDA
The International Game Developers Association is an independent, non-profit
association established by game developers to foster the creation of a worldwide
game development community. The IGDA’s mission is to build a community of game
developers which leverages the expertise of its members for the betterment of
the industry and the development of the art form. For more information on IGDA,
please visit www.igda.org.

About the IEMA
The Interactive Entertainment Merchants Association (IEMA) is the only U.S.
trade association dedicated to serving the business interests of leading retailers
that sell interactive entertainment software (including video and computer games,
multimedia entertainment, peripherals and other software). Member companies
of the IEMA collectively account for almost ninety percent of the $10 billion
annual interactive entertainment business in North America. For more information,
please visit www.iema.org.

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