Mailed this today:

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The Hon. Eliot Spitzer
State Capitol
Albany, NY 12224

April 19, 2006

Dear Classmate:

I am writing in response to a recent report in Business Week that your administration is considering legislation restricting the sale of digital games on the basis of their violent nature, and that your approach will be along the lines of legislation restricting sales of cigarettes to minors.

I urge you to rethink this agenda, as it seems to me a fruitless attempt to infringe on the rights of New Yorkers, a likely waste of taxpayer dollars, and a wholly unnecessary attack on the 21st century's most vibrant and promising popular artform.

1. The Degree of Violence in Games is Vastly Overblown

A cursory look at the best-sellers list in any month will verify this. While there are unquestionably some games that depend at their core on violence, and some games that are disturbingly gory, these are rarely the most successful games in the field, and the degree of media attention they receive is disproportionate to their actual impact. This month's console best sellers list (via Gamespot) includes three Nintendo platformers with minimal violence; three sports games; a pet sim; a game specifically designed to help seniors retain mental facility as they age; and only two games that can reasonably be characterized as "violent". This is typical.

The idea that games are uniquely violent and have a disproportionate impact on children is clearly false; please understand that the median console gamer is now in his or her 20s (and the median PC gamer in his 30s). Contrary to the opinion of anti-game crusaders, sales of games are no longer, as they were in the 1980s, primarily to children; a generation has grown up with games, continues to play them--and expects more adult content in the games they play as a consequence. This is not to be condemned, but to be praised; games are today grappling with more mature themes, as you might expect any artform to do as it evolves.

2. Games are Speech

The idea that games can be equated in any fashion with cigarettes--a physically addictive product with severe and proven negative impacts on health--is on the face of it, absurd. Games can provide thoughtful insight into systems, processes, and ideas in a fashion different from other media; are for the vast majority of players nothing worse than harmless pastimes; and even if (as no reliable study has demonstrated) they may spur violence in some users, the same is of course true of text and film. (Mein Kampf, anyone? And would you prohibit its sale?) While it is true that many games are intended primarily as brainless entertainment, it's also true that the power of this expressive medium can and has been harnessed to make important philosophical and political points, as in Impact Games's Peacemaker (on the Arab-Israeli conflict) and SimCity. The same, of course, can be said for prose, music, and film--which merely points up the fact that, as the courts have repeatedly held, games are quite as subject to the protections of the First Amendment as other media. As indeed they should be.

For this reason, attempts by the states of Illinois, Louisiana, Minnesota, and Michigan to regulate the sales of games have been struck down by the courts, just as, in all likelihood, any attempt by the State of New York will be. Consequently, I might ask on what basis it is proposed to spend the dollars of the taxpayers of the State of New York to defend the indefensible.

Rather, in an era in which the rights of Americans are under assault from our own federal government, it seems to me that Democratic governors should be seeking to defend and protect our liberties, rather than to diminish them.

3. Self-Regulation Works

Over the last several years, the Entertainment Software Ratings Board (ESRB)--which, incidentally, is located in New York and most of whose staff are employed here--has partnered with major game retailers to increase public awareness and understanding of the rating system the industry has voluntarily adopted--and also to help those retailers ensure that their staff enforces these ratings in the store. The results have been noticeable, as both the FTC (in its recent report) and the NIMF (in its comments thereon) acknowledge.

No system is perfect, and doubtless M-rated games do get sold to minors from time to time. This would no doubt continue to be true, even in a regime when doing so was subject to government sanction. I question, again, whether taxpayer dollars are best spent on police enforcement of a system that is already subject to private enforcement, with the largest industry players already committed to compliance.

Please note also that some of the severest critics of violence in games--including our own Senator Clinton as well as Senator Lieberman of Connecticut--have recently joined with the ESRB in promoting awareness of its rating system, abandoning the antipathy in which they formerly viewed it and the game industry. In light of this, I wonder why you should not do likewise.


4. Mandatory Regulation Injures Small Companies Most

Most previous attempts to impose criminal sanction for selling adult games to minors have exempted only games that are rated as suitable for sale to minors by the ESRB. In other words, all unrated games have been treated as for adults only, regardless of actual content.

The ESRB charges stiff fees to rate games, and while for the publishers of multimillion dollar titles, this is no barrier, it is a substantial issue for smaller game developers, particularly those who sell into the mobile, casual, or independent game markets, where unit sales are more typically in the thousands or tens of thousands (and usually at lower price points), rather than in the millions--and where almost all games are currently unrated.

In short, a legal attempt to enforce a ratings system raises a substantial economic barrier to the lone-wolf developer, the small team, and the small publisher who sells primarily online.

Many game developers in New York cater particularly to one of these markets--my own firm included. In short, criminal enforcement is something that ultimately benefits primarily the major publishers who are accused of fostering violence in this medium, at the expense of those pursuing independent creative vision.

5. The Game Industry Benefits the State of New York

While New York is, by industry standards, not a major development center--we lag California, Quebec, British Columbia, Washington state, Texas, Florida, Massachusetts, and even Maryland--there has been something of a local efflorescence in recent years, with a number of important developers springing up both in New York City and in the Albany region (both have vibrant chapters of the International Game Developers Association). In addition to this, several major game publishers have either their worldwide or their North American headquarters in our state, including Atari, Vivendi Universal's game division, and Take Two Interactive. Furthermore, many media companies with important game-related assets, including Viacom, Ziff Davis, Fox, and Time Warner are strong local employers.

Given New York's strength in other entertainment media, and the fact that the game industry is the fastest-growing entertainment medium, there is no question in my mind that the resources of our state government would be better used in fostering local growth in the game industry--rather than in attacking it.

In summation, therefore, I urge you to eschew what would undoubtedly be a fruitless, immoral, costly, injurious, unwarranted, and inappropriate attempt to infringe on the free speech rights of game creators--and perhaps instead to consider what measures the State of New York might take to position our region as an excellent place to create and develop games.

Regards,

Greg Costikyan
Horace Mann, Class of '77
CEO, Manifesto Games, Inc.
355 South End Ave #2B
New York, NY 10280
posted by Greg at 8:05 PM 20 comments