Reactions

The new policy sparked an outcry, especially from librarians.  The protests are visible on the Web, from the Twitter hashtag #hcod to a small Facebook group to the website boycottharpercollins.com, whose sole mission is to promote a boycott of HarperCollins books.  The site reads, “Are we still boycotting HarperCollins?  Yes,” and it contains a page explaining the issue.  Protesters have also advertised “Librarians Against DRM” shirts (DRM stands for Digital Rights Management, which refers to technology employed to limit access to digital content).  Finally, librarians Sarah Houghton-Jan and Andy Woodworth released the eBook User’s Bill of Rights, a list of desired rights that emphasizes access to digital literary content without restrictions.  It also calls unacceptable the eBook licensing arrangements, whereby consumers do not own eBooks but rather purchase a license to access them.

The first news of the twenty-six checkout policy came from Steve Potash, CEO of OverDrive, an eBook distributer that carriers HarperCollins titles.  Potash wrote a letter to customers describing the change in HarperCollins’ policy.  He wrote, “[W]e have been required to accept and accommodate new terms for eBook lending as established by certain publishers” (emphasis in original).  OverDrive has since changed its ordering process to help address the disfavored HarperCollins policy.  OverDrive removed HarperCollins eBooks from their main catalog, instead segregating them in a separate catalog.  Libraries can thus more easily avoid purchasing the short-lived HarperCollins eBooks.

Why the sudden change, and why twenty-six checkouts?

HarperCollins released an open letter to librarians, explaining it’s new policy.  “[S]elling e-books to libraries in perpetuity, if left unchanged, would undermine the emerging e-book eco-system, hurt the growing e-book channel, place additional pressure on physical bookstores, and in the end lead to a decrease in book sales and royalties paid to authors.”  However, it seems that these arguments apply equally well to print books.  In fact, the arguments can be read as arguments against libraries themselves, not restricted to eBooks in libraries.  So what distinguishes eBooks from print books?

One major difference is the ease of copying and distributing eBooks, compared to hard copies.  This aspect of eBooks has already been addressed, as libraries have accepted the one-copy/one-user model.  That model mimics the hard copy reality that only one user can access one copy of a book at any given time.

Another difference is that eBooks are not subject to the usual wear and tear of hard copy books: rips, spine damage, and bent and marked-up pages.  Such wear eventually necessitates a paper book’s replacement.  Potash’s initial letter to customers noted many publishers’ concerns that “a single eBook license to a library may never expire, never wear out, and never need replacement.”  If the greater durability of eBooks is the only concern of publishers, one possible economic remedy is for publishers to set higher prices for eBooks.  In reality, just the opposite is done.  HarperCollins pointed out in its open letter that its eBooks generally cost 20% less than print versions.  Another solution may in fact be to renew eBook licenses periodically, the policy at the heart of the present controversy.  A more reasonable eBook lifespan might assuage the checkout limit opposition.

So is the twenty-six limit reasonable?  Given a two-week circulation period for eBooks, the twenty-six checkout limit amounts to one year of use.  A three-week circulation period leads to 1.5 years of use.  HarperCollins stated that the new policy resulted from many months of examination, but did not detail the decision process.  Librarians from Oklahoma’s Pioneer Library System undertook their own analysis, posting a YouTube video showing their physical inspection of hard copy books.  The video demonstrates that even books with 120 checkouts can still be in good enough condition to circulate.  Accordingly, the HarperCollins one-year circulation limit (based on a two-week circulation period) seems low.  A more agreeable limit might be the equivalent of two or three years of circulation.

The Unique Nature of Digital Content

Electronic media is fundamentally different from hard copies, creating novel challenges for content owners, particularly in the realm of protection.  Digital content can be replicated quickly and distributed.  A single purchased copy can thus wind up in the hands of multiple users simultaneously, flying in the face of Copyright law.  This problem is not unique to eBooks.  Digital movies, music, and computer software all face the same protection nightmares.

One major solution has been to license content rather than sell it.  Licenses enable restrictions on digital content, as was seen in Vernor v. Autodesk, Inc., a case that found that a purchaser of particular software was a licensee, not an owner (based on evaluation of the copyright owner’s explicit grant of a license and the restrictions placed on use and transfer of the software), and thus could not resell the software to another party.  Another pro-license case was ProCD, Inc. v. Zeidenberg, which recognized the validity of a shrink-wrap license, which is a license contained inside the purchased package.  Shrink-wrap licenses frequently accompany software.  Upon opening the package, a user can reject the license agreement by not installing the software and returning it.

Similar to software, eBooks have been licensed, not sold, enabling greater restrictions on eBooks.  The eBook User’s Bill of Rights, mentioned earlier, expressed dissatisfaction with the license arrangements.  Instead, it advocates ownership and application of Copyright’s First Sale doctrine, which permits a valid purchaser to transfer the copyrighted work to another.  If library purchasers were eBook owners instead of licensees, publishers would not be able to impose restrictions, such as caps on the number of circulations.  Publishers are unlikely to capitulate to such library demands, particularly as the eBook business booms among non-library consumers.

Two questions are before the Supreme Court: (1) whether the First Amendment bars a state from restricting the sale of violent video games to minors, and (2) under a strict scrutiny standard of review, must a state, before prohibiting the sale of games to minors, demonstrate a direct causal link between violent video games and physical and psychological harm to minors?  This post focuses on the first question.

Provisions of the California Law

The California law prohibits the sale of violent video games to a minor, defined as any person less than 18 years of age.   Violators are liable up to $1,000.  The law further requires violent video games in California to be labeled with an “18” sized at least two inches square on the front of the package.

The law defines violent video games as those games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” if the depiction of such acts (1)(a) “appeals to a deviant or morbid interest of minors,” (b) is patently offensive to community standards for content suitable for minors, and (c) causes the game “to lack serious literary, artistic, political, or scientific value for minors,” or (2) if the depiction entails virtual infliction of serious injury to human-like characters in a manner that is “especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.”

Why the Ban?

Setting characters on fire; shooting and dismembering them; playing fetch with a dog and dismembered body parts.  These are some of the options available in Postal 2, a video game that has become emblematic of extreme gaming violence.  Indeed, Postal 2 was mentioned more than once during oral arguments as an example of a game whose sale would be regulated under the California ban.  But what pushed California to regulate violent video games?

The main rationale for the ban was, and continues to be, the prevention of psychological harm to children.  Indeed, California State Senator Leland Yee, who holds a doctorate in Child Psychology, authored the law.  The legislative history shows that when proposing the bill, Yee cited psychological studies on the issue and highlighted the greater impressionability of children.  However, the 9th Circuit, pointing out flaws in methodology of the studies and establishment of correlation but not causation, held that “the evidence presented by the State [did] not support the Legislature’s purported interest in preventing psychological or neurological harm.”  Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 964 (9th Cir. 2009).

Proponents of the law also maintain that industry self-regulation is unsuccessful.  This criticism refers to the Entertainment Software Rating Board (ESRB), an organization formed by a video game industry trade organization, to rate games and enforce advertising guidelines.  The law’s supporters argue that the voluntary rating system is insufficient.  When the bill was drafted, Senator Yee cited statistics from a Federal Trade Commission (FTC) July 2004 report, “Marketing Violent Entertainment to Children,” to illustrate that the ESRB system was not perfect in stopping sales of adult-rated games to minors.  For instance, the study reported that in a mystery shopping test 69% of minors were able to purchase M-rated (mature) games.

However, opponents of the ban reference the same FTC series of studies to demonstrate the overall effectiveness of the voluntary rating system.  The FTC recognizes that the video game industry’s self-regulatory code surpasses both the movie and music industries’ codes in preventing minors from obtaining adult-rated content.  Even more, the studies show that the ESRB system has increased in effectiveness over the past decade.  The latest FTC follow-up report, released in December 2009, found that video game retailers sold M-rated games to only 20% of minors.  This figure is down from 85% in 2000.

The First Amendment: “Congress shall make no law…abridging the freedom of speech.”

At oral arguments the Justices grappled with the application of the First Amendment.  Should exceptions be made for violent video games?  In an effort to resolve the question affirmatively, the state of California drew parallels to obscenity regulations.  The Court previously has asserted, “Obscenity is not within the area of protected speech or press.”  Ginsberg v. New York, 390 U.S. 629, 635 (1968).  In Ginsburg the Court upheld a New York law that forbade the sale to minors of obscene materials, defined as materials depicting nudity.  It reaffirmed that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”  Id. at 639, quoting Prince v. Massachusetts, 321 U.S. 158, 170 (1944).

Nevertheless, carving out an exception to the First Amendment for violent video games would be a novel extension of First Amendment doctrine.  Justice Scalia split with the other conservative Justices on this issue, voicing concern that the American people never understood the First Amendment to apply as such.  He stated, “[I]t was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.”  Justice Alito rejected this historical analysis on the grounds that video games are a new medium.

The Justices and attorneys employed other analogies to help clarify the ambit of the First Amendment.  Justice Ginsburg inquired as to why the law stopped at video games, leaving other media such as comic books and films unaddressed.  The response from the state of California was that greater harm comes from the interactive nature of videogames, where the player carries out the violent acts as opposed to observing them passively.

Justice Sotomayor asked how this case differs from United States v. Stevens, decided this past April, in which the Court, applying the First Amendment, struck down a federal law making it a crime to sell videos depicting animal cruelty, including dogfights.  In that case the Court declined to recognize a new category of speech outside of First Amendment protection.  Sotomayor, referring to the decision in Stevens, recalled that the Court, when addressing regulations of speech, does not analyze a category of speech for potential low value but instead looks to a tradition of regulation.  As Scalia pointed out, there is no tradition of regulating portrayals of violence.

In light of the principles recently espoused in Stevens, the Supreme Court is unlikely to create an exception to the First Amendment that allows regulation of depictions of violence.  Indeed, the state of California does not request such a categorical exclusion.  Instead, California argues that for minors only, violent video games should not be granted First Amendment protection.  The possibility of such an exception is not automatically foreclosed.  The Court voted to hear this case after handing down the decision in Stevens, the timing of which suggests that Stevens will not be immediately dispositive in the case sub judice.  Because the Court has previously recognized different standards for regulating the conduct of children, it is not unforeseeable that the Court might elect to carve out a First Amendment exception for speech as it reaches children.  Nevertheless, as exemplified by Ginsburg, past regulations of speech that applied to minors dealt with obscenity, an already unprotected category of speech.  Even if it were restricted to its influence on minors, a ban on depictions of violence would be a new regulation on formerly free speech.

A Quick Note on Strict Scrutiny of the California Law

If the Court does not create an exception to the First Amendment, the California law, because it infringes on a fundamental right, must be examined under strict scrutiny.  To satisfy this standard of review, California must demonstrate that the law is narrowly tailored to achieving a compelling government interest.

California’s stated objective is to protect the physical and psychological welfare of minors, as well as their ethical and moral development.  The 9th Circuit, however, was unconvinced by California’s evidence that there was a material harm for the state to address.

Also at issue is the means California employed to address the alleged harm.  Assuming a compelling government interest exists, opponents of the law argue that it is not the least restrictive means of addressing the sale of violent video games to minors and therefore not narrowly tailored.  They point to success of the ESRB self-regulatory system, as well as parental controls that serve to restrict minors’ access to violent content.  So long as less restrictive means of achieving California’s objective are identified, the law is unlikely to pass strict scrutiny.

The Final Stage

As advances in video game graphics enabled increasingly realistic depictions of human-like characters and worlds like our own, the critics of violent video games became more numerous and more outspoken.  California is not alone in attempting to regulate the sale of violent video games to minors.  Similar laws were passed in Illinois, Michigan, and Washington, as well as the cities of Indianapolis, Indiana and St. Louis, Missouri, although the courts have struck down these laws as violations of the First Amendment.  Now that the Supreme Court has taken up the issue, we must ask ourselves — have we reached the final stage?