ESRB vs 3D Realms

[tombofsoldier]

Story at shacknews (http://www.shacknews.com/onearticle.x/47983)

Last week, the developer received a letter from the ESRB, which it forwarded to Shacknews, listing over 30 instances of its website violating the ESRB's Terms and Conditions Agreement. Most of the violations stemmed from 3D Realms' use of "old pixilated" rating icons and the lack of content descriptors, such as "Blood" and "Nudity." Steps to obtain the proper rating icons and content labels were not provided, though the letter contained contact information for an ESRB representative.

The ESRB specified that 3D Realms had only 10 days to comply before facing penalties...Alright, I can understand not wanting outdated stuff out there, but 10 days to comply? Yet another sign that it's close to time to get rid of the ESRB

[Evil Avatar]

I honestly think developers should just ditch these ratings. Just give up on the ESRB and put your own label on the box. Some of the big publishers, like Electronic Arts, could get away with this easily.

[Netami]

Oh come on! 3D Realms? Do you know what they sell at their websites?! Old games! They make them available for people that lost them years ago. I got my Blake Stone fix for a paltry cost... This is like closing down the museum because the curator didn't update a bathroom sign.

THINK OF THE CHILDREN, ESRB! >:O

[Deepsleeper]

Ten days to comply or -what-? The ESRB throws a hissy-fit and tells everyone not to play with 3D Realms anymore?

[Grifter]

I would love to see everyone drop the ESRB at the same time and adopt the film rating system G-NC17, at least in the states. I am not familiar with the rating systems in other country's so I don't know if it would work for them or not.

[Wolvie]

First Hot coffee bungling, then the bullshit Oblivion re-rating, and now this wishy-washy bullshit. Somebody over at the ESRB needs to get a grip, they are acting batshit crazy right now.

[Deadend]

So old games have to have the new descriptors on them?

SHENANIGANS!

[Varsity]

All they need do is replace a bunch of images on their website. Ten days is more than enough...half an hour would do.

[Steve_Erhardt]

So the ESRB gave 3DR 10 days to comply, eh?

Heh... evidently they have no idea how 3DR perceives the passage of time. LMAO

[GunnyMo]

I honestly think developers should just ditch these ratings. Just give up on the ESRB and put your own label on the box. Some of the big publishers, like Electronic Arts, could get away with this easily.

You realize that as soon as the industry ditches the ESRB and everyone goes willy nilly with their own rating systems it will be the perfect opportunity for the government to step in successfully.

I think the ESRB is doing a great job. Why is it bad to give 3D Realms 10 days to comply? It's not something that is hard to do. Changing out graphics would take, what, an hour tops?

What I find interesting is that people bitch about the ESRB not enforcing the ratings (on both sides of the argument) and having a backbone but as soon as they do everyone complains they are being too harsh.

The minimal amount of "harshness" that the ESRB is enforcing right now is a much better guaranty that our industry can stay self regulated.

Calls for everyone to abandon the ESRB are ignorant and shortsighted, folks.

[Klade]

I'm not sure why people think this is such a hard thing. I mean they are talking about replacing a couple of images. This something that can be done in less then a single day. In the legal world its pretty typical to give the opposing side only 15 days to respond to something that could determine the entire outcome of the case. 10 days is fine.

[Nura]

ESRB: Did you see that?! the britts got a game banned with a rating! man we rate stuff too, we have that power! powertrip! woo!

[Goronmon]

What I find interesting is that people bitch about the ESRB not enforcing the ratings (on both sides of the argument) and having a backbone but as soon as they do everyone complains they are being too harsh.Yes, because when people complain about the validity of the ESRB, not cracking down on old ratings graphics is one of the most pressing issues.

Anyways, looks like 3D Realms already updated the site from what I can tell.

[Stormwatcher]

You realize that as soon as the industry ditches the ESRB and everyone goes willy nilly with their own rating systems it will be the perfect opportunity for the government to step in successfully.

I think the ESRB is doing a great job. Why is it bad to give 3D Realms 10 days to comply? It's not something that is hard to do. Changing out graphics would take, what, an hour tops?

What I find interesting is that people bitch about the ESRB not enforcing the ratings (on both sides of the argument) and having a backbone but as soon as they do everyone complains they are being too harsh.

The minimal amount of "harshness" that the ESRB is enforcing right now is a much better guaranty that our industry can stay self regulated.

Calls for everyone to abandon the ESRB are ignorant and shortsighted, folks.
I definitely agree. ESRB, with all its faults, is a lot LOT better than letting the government take over or something.

[GunnyMo]

Yes, because when people complain about the validity of the ESRB, not cracking down on old ratings graphics is one of the most pressing issues.


I'm not saying it isn't a nitpicky thing to do but it is their job to cover any conceivable holes a politician could wiggle use to its way into our defenses.

The ESRB's job is rating and enforcing those ratings. That includes stupid stuff like having 3D change ratings and big, important stuff like defending YOUR past time against those who would turn every game into Barbie's Farm Animal Adventures.

Instead of bitching about it, we should be thanking the ESRB for doing what they do. Sure, they are fine tuning their processes and policies but every company does that. The ESRB needs to enforce every policy equally, no matter how inane or "pressing" gamers might feel the issue is. They have to in order to keep the political and moral morons off of our industry.

[Ancalagon]

The question is, why does the ESRB have to be so anal to 3d realms? why let things build up like this, and not let them know sooner.

Why not send a letter like, please fix these things now. they know that 3d realms cant ignore the esrb.

and what does the 3d realms website have to do with the esrb? I thought they only rated titles?

[Jart]

No, it is most definitely NOT time to get rid of the esrb. The esrb is a private rating system, meaning everytime the government tries to step in they can hold up their hand and say "Stop we've already got this under control." Without the esrb the government would be in control of the entire video game rating system, and penalties, and that would most definitely be a Bad Thing.

It's their job not to be sloppy in what they do. I don't know what Scot Miller thinks he is going to gain by forwarding this on to Shacknews, instead of just updating a few images on their website.

[JCtheMC]

I don't know what Scot Miller thinks he is going to gain by forwarding this on to Shacknews, instead of just updating a few images on their website.
He's really really busy with not actually getting DNF out; By doing stuff like this he's building "Hype", for when it does. Which is in about 20 years, when 3D Realms is long gone, and someone finds a harddisc of source code and the licensing agreement for the IP at a garagesale.

[Citizen Philip]

I do not follow comic books - or graphic novels (whichever), but I do recall a story from the 50-60s about the exact same thing: the self-appointed members of the "making comics safe for kids association" got too big for its britches and was subsequentially (sp) dumped by Marvel and DC. The end result was the current rating system, which works fine.

Perhaps the ESRB should remember they are on the side of publishers and developers who chose to agree to their rating system and not the nanny state.

[Kagger]

First Hot coffee bungling, then the bullshit Oblivion re-rating, and now this wishy-washy bullshit. Somebody over at the ESRB needs to get a grip, they are acting batshit crazy right now.


The Oblivion re-rate really gets me. I just watched Raiders of the Lost Ark last night. Rated PG, but that was before PG-13 came about. It would definitely fall into that category now, blood from headshots, a ton of cursing, face melting, but the MPAA has left it at PG-13. Spaceballs has the f-word and is still PG. Yet the ESRB goes and re-rates games over hidden content.

I think the ESRB is better than government regulation, and am glad we have them, but re-rating something higher when the movie industry does not is annoying.

I do think lowering a rating is good. Starcraft used to be M when it first came out, but now is T.

[GunnyMo]

Perhaps the ESRB should remember they are on the side of publishers and developers who chose to agree to their rating system and not the nanny state.

So you're saying the ESRB should just let the publishers and developers do what they want? The ESRB is not being the "nanny state". They are doing the job these same publishers and developers agreed for the ESRB to do! Why is that so hard for people to comprehend? Enforcement of any regulations, big and small, is part of their job.

For example: let's say a politician wanted to use the fact that 3D was using outdated ratings on their website as impetus to introduce new legislation against video games (and after the moronic stuff we've seen these politicians try, that is not beyond the realm of possibility). Next thing you know, the industry would be bitching at the ESRB for not making 3D change the ratings!

It is the same with any type of management or enforcement: if you don't push the little stuff with just as much vigor as the big stuff you will never have any credibility or power. You have to be consistent in what you do.

The ESRB should be just as hard nosed as the MPAA when it comes to ratings and enforcement. It is the only way we will ever get the government off of our collective backs.

Edit: and I agree with the person who said this is just Scott Miller drumming up PR for his money pit at 3D. There was absolutely no need for him to take this public except to generate infantile press for his failed DNF project.

[AspectVoid]

I would love to see everyone drop the ESRB at the same time and adopt the film rating system G-NC17, at least in the states. I am not familiar with the rating systems in other country's so I don't know if it would work for them or not.

They're actually not allowed to do that. When the video game industry began using a ratings system, the very first thing they did was go to the movie industry (who has the G - NC17 patented or copyrighted or some legal bullshit like that) and request permission to use their rating system.

The movie industry informed the video game companies that they were not allowed under any terms to use their system and that if they did, the movie industry would sue them for infringement.

That's how this whole mess with the ESRB system started in the first place.

As for 3D Realms, we have no idea how long the ESRB has been trying to get them to update their site to current logos. For all we know, the ESRB has spent the past 5 years with phone calls and polite letters and emails to get 3D Realms to update their page.

As for the 10 days limit, frankly I find that to be more then enough time. It shouldn't take more then a few hours to yank out all of the old ratings symbols and put in the new ones.

[Heretic Machine]

I honestly think developers should just ditch these ratings. Just give up on the ESRB and put your own label on the box. Some of the big publishers, like Electronic Arts, could get away with this easily.

Ya, I'm pretty much tired of these guys. They've worn out their welcome, in a very big way. They're incompetent at rating games 90% of the time, and the most they manage to do is bother developers and publishers every time they get their panties in a wad.

I mean c'mon, pulling some shit like this over pixelated ratings symbols? Fuck them.

[Roc Ingersol]

I'm in the '10 days or what?' boat. I don't know that the ESRB can do anything, aside from legally force 3drealms to remove all the ESRB ratings information and, in effect, become unrated.

As mentioned above, unfortunately the ESRB is a necessary evil. If not for it, we'd face government censorship. And no-one wants that. That's the kind of move that gets any magazine with a nipple tossed behind the counter at the liquor store with the actual stroke mags -- and leaves us with absolutely no room for magazines in the gulf between GQ and STACKED (or whatever it is that kids steal nowadays). It's the kind of move that will send gaming through the bullshit death-spiral that the Comics Code brought to their medium.

You want to see that kind of thing done to video games? By a generation of litigators that --despite all scientific evidence to the contrary-- considers games to be a cause of violent crime?

Sorry, but I'll take the ESRB. The G-men aren't gonna give you 10-days to comply. They're gonna start dropping half-million dollar fines on your ass for a nipple slip, because some politically minded fundies in the bible belt organized a group call-in session.

[Slack3r78]

WHAAA! The gubmint might step in!!!

And get bitchslapped down in court on First Amendment grounds just like every single state that has tried to push through laws regulating video game content.

Wake up, people. The government is already trying to regulate video games, ESRB or not, and failing miserably at doing so.

[Venkman]

Comics code anyone?

[Venkman]

Wake up, people. The government is already trying to regulate video games and failing miserably at doing so.

Ironically, because organizations like the ESA and ESRB are fighting in court for the video game companies.

Mainly, the ESA is doing the fighting, but oh well.

[Slack3r78]

Ironically, because organizations like the ESA and ESRB are fighting in court for the video game companies.

Mainly, the ESA is doing the fighting, but oh well.
The point being primarily that the screaming about how the government would step in and regulate content is a red herring given the established court precedent completely slapping down the notion of regulation based on even voluntary ratings.

I have a very, very hard time taking the argument that a government-run censorship agency would fair any better in court seriously. Pairing that argument with the notion that we should be thankful that the ESRB has been running around with its head up its ass for the past couple of years is outright insulting.

[Slack3r78]

I honestly think developers should just ditch these ratings. Just give up on the ESRB and put your own label on the box. Some of the big publishers, like Electronic Arts, could get away with this easily.
The only problem with this is that since all three of the major console manufacturers require an ESRB rating to certify games for their platform, it's a defacto standard. Maybe you're right that EA is big enough that the threat of them leaving a platform could get a console manufacturer to reconsider this requirement, but I just don't see the financial incentive for EA to do so.

[Citizen Philip]

So you're saying the ESRB should just let the publishers and developers do what they want? The ESRB is not being the "nanny state". They are doing the job these same publishers and developers agreed for the ESRB to do! Why is that so hard for people to comprehend? Enforcement of any regulations, big and small, is part of their job.

...

No, you spaz. Publishers and developers are capable of developing their own system that works, and not putting up with the antics of an organization that is more interested in showboating for popular opinion than standing behind it's own rating system.

The companies have a vested self-interest in labeling their products to their target audiences (ie. children, teens and adults), this isn't like the Surgeon General trying to get cigarette companies to own-up that smoking is bad for you.

[Slack3r78]

From time to time, local officials attempt to restrict the playing or selling of violent video games. Predictably, the ESA (representing video game publishers) and the IEMA (representing game retailers) oppose the legislation and have been, to-date, victorious in overturning each bill passed. For example, the city of Indianapolis, Indiana in 2000 passed an ordinance barring children from playing arcade games with graphic violence unless parental consent was given. It was generally thought that this law was intended to target the game The House of the Dead, in which players use plastic guns to shoot at the game screen in order to kill zombies that try to kill the player. The ordinance was struck down at the appellate Federal court level, on the grounds that in the United States, video games enjoy some measure of First Amendment free speech protection because they contain real expression of ideas, and children have constitutional rights before the age of 18, and given this, the city did not demonstrate an overriding public interest in passing the ban.

Recently, Illinois governor Rod Blagojevich passed a law banning the sale of "violent or sexually explicit" video games to minors under the age of 18. The new law would have taken effect January 1, 2006, but was struck down by District Court judge Matthew Kennelly. As Kennelly so concisely put it: "In this country, the state lacks the authority to ban protected speech on the ground that it affects the listener's or observer's thoughts and attitudes." In doing so, the Judge confirmed yet again that video games are protected under the First Amendment and deserve treatment no different than film and literature. Illinois was forced to pay the ESRB legal fees, approximately 1 million dollars.

About three months later, similar laws were passed by Michigan governor Jennifer Granholm and California governor Arnold Schwarzenegger. The California law, as California Assembly Bills 1792 & 1793, was sponsored by Leland Yee, the Speaker pro Tem of the Assembly and a child psychologist. The laws were deemed unconstitutional by Judge Ronald Whyte on December 21st, 2005; preventing it from going into effect on January 1st, 2006.

On 2005-11-29, Senators Hillary Clinton, Joe Lieberman and Evan Bayh introduced the Family Entertainment Protection Act to much criticism. The act was intended to protect children from inappropriate content found in video games. It has not passed through the Senate. Similar bills introduced at state level were found to be unconstitutional.
http://en.wikipedia.org/wiki/Video_game_controversy#United_States

Notice how these were struck down on Constitutional freedom of speech grounds, not because of any given rating scheme.

[Goronmon]

The ESRB does fine up until the point where an issue comes to light. Then they just cave to knee-jerk reactions in order to somehow "validate" their existence.

The GTA re-rating to AO seemed to have less to do with the content and more to do with the ESRB punishing Rockstar for making them look bad in the public eye.

The Oblivion re-rating was just plain absurd and yet another case where the ESRB cares less about the content and more about placating the vocally stupid.

[Dr.Acula]

I definitely agree. ESRB, with all its faults, is a lot LOT better than letting the government take over or something.

What would be so bad about the government stepping in? The MPAA and ESRB keeps media out of our hands. Galleries and book stores aren't subject to private censorship boards, and historically artists and novelists have experienced much more freedom than developers and directors.

Just look at "this film has not yet been rated". The doc shows how directors have to appear in front of a secret panel of shadow judges in order to appeal their ratings. Their rating guidelines are confusing, and there are no standards.

I've read Burrough's "Naked Lunch". The ESRB would have crapped all over the book, but Burroughs was able to take his case to the supreme court, where it was determined that his book served a public interest. If Manhunt 2 came before the supreme court, I bet it would pass muster.

[Slack3r78]

I've read Burrough's "Naked Lunch". The ESRB would have crapped all over the book, but Burroughs was able to take his case to the supreme court, where it was determined that his book served a public interest. If Manhunt 2 came before the supreme court, I bet it would pass muster.
I went to a doctor once, all he did was suck blood from my neck... ;)

Bingo. And judging from established precedent, video games already have passed the legal test in every single case that's gone to court.

[Roc Ingersol]

Notice how these were struck down on Constitutional freedom of speech grounds, not because of any given rating scheme.
Because they were attempts to ban speech. Not segregate it. The courts have routinely upheld the ability of government to mandate what can and cannot be on a shelf where minors can get it.

And there are already laws that say 'you can't sell an M game to a minor' and 'you can't sell pornography to a minor'. What do you think happens if the ESRB goes away?
That's right. Wal*Mart, Blockbuster and the Government step in and decide what an M title is, similar to the way they currently decide what 'pornography' is.
And everything that isn't whitewashed is going to wind up behind the counter.

If you don't think that kind of ghetto-ization is bad for the media, you need only look at magazines and comics.

[lockwoodx]

So the ESRB gave 3DR 10 days to comply, eh?

Heh... evidently they have no idea how 3DR perceives the passage of time. LMAO


They will change it....."when it's done"

[Skytram]

Seems like instead of suiting up and just fixing the images, 3DRealms instead chose to bitch and whine to media outlets. Way to be an upstanding member of the community guys. An intern can do the work, go back to failing at developing a Duke Nukem game.

[Slack3r78]

Because they were attempts to ban speech. Not segregate it. The courts have routinely upheld the ability of government to mandate what can and cannot be on a shelf where minors can get it.
Wrong. The Illinois law, for example, was designed very specifically to bar the sale of violent video games to minors and it was still struck down by the courts.

[Stinking Kevin]

And there are already laws that say 'you can't sell an M game to a minor' and 'you can't sell pornography to a minor'.

No,I don't think there are any laws that say "you can't sell 'M' games to a minor. I see you are a fellow Detroiter -- Hansen Clarke and Jenny Granholm tried to create such laws, true, but they were shot down by State Congress, and replaced with versions that did not specifically name the privately owned and copyrighted ESRB ratings (and then later, those enacted versions were shot down in court).

As far as I know, there are no laws that specifically predetermine what is or is not pornography, either. Purveyors of pornography don't submit their content to any ratings board or government agency. They voluntarily label their stuff as porn and sell it "behind the counter" because that's the cheapest and easiest way to go. After all, they are not trying to sell to a mainstream audience in the first place, so why bother trying to defend the SLAPS of each new edition of "Debbie Does..." ?

More generally...
I don't like someone else telling me how to interpret narrative content, but I find it hard to object to a privately run system of age-appropriateness suggestions and descriptors that anyone can choose to ignore. Like any other form of mass media, there is marketplace value in standardized age-appropriateness ratings. We all may be too cool to give ESRB ratings a second thought, but a majority of parents who spend money on video games at retail say they find the ratings useful. I strongly believe this is because of the ESRB ratings are perceived by those parents as familiar and consistent.

No one is forcing 3D Realms to pay to have their games rated by the ESRB. To me, Miller came of sounding like a pouty little schoolgirl, whining about the fact that his company has to comply with a contractual agreement it voluntarily made. His feelings were hurt by a private business communication, so he lashes out in public? Grow up.

[Roc Ingersol]

The Illinois law was struck down for having an overly-broad definition of 'violent' and 'sexual', for having required a ridiculously large warning sticker and for targeting a single medium.

The Michigan law was similarly struck down because it over-reached its goal and targeted only video games. (it was too broad, too harsh, too restrictive.)

Don't confuse judicial summaries for the legal arguments. Both of them basically came down to 'strict scrutiny'. If those laws had been written to pass muster, they would have.

The existing laws that regulate sale of M-and-above titles are the general laws that prohibit pornographic/graphic content to minors. Those apply to every other medium, including video games. And without the ESRB, each retailer would have to do their own due diligence to make sure they weren't inadvertantly selling kids tickets to Shortbus. The result of that has always been whitewashing.

[Stinking Kevin]

(in reply to #40)
According to the rulings I read, the game-related laws were struck down in Michigan in large part because there was no basis for the claim that depictions of violence were as dangerous (or dangerous in the same way) to the community as depictions of sex had been judged to be in earlier pornography laws, and so no limitation of First Amendment protections was warranted.

The recent game-related Michigan laws that were not struck down, which I believe were Acts No. 104 and 107 (2005) [?], simply amended current pornography laws to include software as a medium for pornography. I don't know anyone who had a big problem with this, since it merely says we need to apply the same rules to porn games that we apply to porn magazine and porn movies.

But it sounds like you are saying that "M" rated games are now considered porn? That doesn't make any more sense to me than saying that "R" rated movies are considered porn. In fact, I would argue that any game that's received an "M" rating from the ESRB could not be considered porn, under any definition of porn I know.

[Roc Ingersol]

They were struck down on the basis of strict scrutiny. That is, in cases of limiting speech you have to make sure that the level of limitation matches the level of threat. Both the Illinois and Michigan laws were trying to limit video games too far, given the scale of threat to the community.

So, yes, it was in part due to the fact that the district judged laughed off their 'violent games cause violence' report. But the only reason that came up in the first place was because they tried to go to far with the restrictions.

Again, my concern isn't that M rated games may be considered pornography, it's that there are laws regarding the distribution of various graphic content (snuff-type films included). And the line between them and M games is close enough that a judge can't necessarily laugh a 'Hot Coffee' case out of court on its face.

As it stands, when someone takes issue with the content of a game, for whatever tenuous or erroneous reason, the issue gets settled between the ESRB, the developer and the offended. (consider the Oblivion tits debacle)

This is actually good - because it leaves Wal*Mart with plausible deniability.

In the absence of the ESRB, the offended would go straight to Wal*Mart to say "there's an oral sex mini-game in this game you sell" and Wal*Mart would be solely responsible. Wal*Mart doesn't want that. Ever. And if Wal*Mart is left in the position of determining what's good or not, without the plausible deniability that ESRB ratings give them, they're going to err on the side of caution to the point of whitewashing content.

Again while M games aren't necessarily graphic enough to run afoul of local laws, they can certainly be graphic-enough that complaints will wind up costing a bit in legal fees to sort out. Unless the original content, themes and developers are beyond reproach, Wal*Mart would be at risk. And they won't take that. So their gaming shelf would look like Disney-land.

This is not a hypothetical. Look at what the comic book industry was facing when people took issue with their content. The retailers were exposed and they created the Code to basically steer as clear of contentious issues as possible. Their medium artistically fell on its own sword, and that's specifically the fate that the MPAA and ESRB ratings systems were created to avoid.

[Stinking Kevin]

(IRT#42)
Ok, I see what you are getting at now. Sorry it took three posts for me to understand!

[Gilius Thunderhead]

(IRT#42)

Seriously, this isn't 4chan or something. Go ahead and quote, or name drop. I can see names; they will stick in my mind, and I'll know what you're talking about without having to find post 40 or post 42.

Gah.

As for this, I figure that if the ESRB ended up defunct, it would, while equally incorrect as before, be much easier for the government to muster up their own rights to censorship and/or ratings. Now we can say that there's already a consistent system: then we'll have multiple varying systems. The government will come in to 'regulate' the systems or whatnot, and be able to stretch from there. I know how politicians work. They don't care about us, they care about their power, and they like grabbing more.

[Stinking Kevin]

Thanks for the tip! I did not stop to think that my weakness for over-clarification would be inferred as a challenge to anyone’s mental capabilities. I earnestly and humbly apologize.

(Gee, I hope you all realize which post I am responding to….)

[LilAbner]

Since this is a 3D Realms-related thread, I'd like to add one thing:

FUCK YOU GEORGE BROUSSARD.

[ferrarimanf355]

I'm all out of Duke Nukem Taking Forever jokes. :(