Delaware Law Office
of Larry D. Sullivan, Esquire

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The weblog thing comes from www.blogger.com, which offers us a convenient way to manage the posting, administratively. You don't really need to know all of that, but we have included this explanation so that you won't be confused by the term "blog".

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Thursday, March 23, 2006

Spreading the Yankee hate...

 
Richard Roberts, Jr., Esquire of Roberts & Roberts, a New Jersey intellectual property firm, pointed me towards an ESPN.com article about a case that he is working on. Rich is a big New York Yankees fan, but he's working against the Bronx Bombers on this one.

A Red Sox fan named Mike Moorby has decided to fight back against the high and mighty New York Yankees. He created a company to sell hats and shirts with his Yankees Hater logo. Now the "Evil Empire" is saying that his logo, a Y and H with devil horns, is infringing upon their trademarked NY logo. The case is scheduled to go before the Trademark Trial and Appeal Board before the end of the year.

I have to admit to being a Yankees hater myself, so I can't help but root for Mr. Moorby. But, as a lawyer, I think that he is right. There should be no confusion between his logo and the Yankees' logo and it should be obvious to consumers that they are not purchasing Yankees Hater hats directly from the New York Yankees.

You can purchase Yankee Hate gear at www.yankeeshater.com . I might have to get myself one of those Baltimore hats.


Wednesday, March 22, 2006

Video Games and Violence: Delaware to Criminalize Sale of Video Games

 
A piece of legislation before the House of Representatives in Delaware is taking a stand against violence in video games. The Bill, An Act to Amend Title 11 of the Delaware Code Relating to Video Games and Obscenity, would make the sale, rental, or "providing access" by an owner, operator, or an employee of a business of games without ratings a class A misdemeanor.

Title 11 is the part of the Delaware Code which involves Criminal Offenses, and many of the statutes listed provide specific details involving those crimes, including the elements of the crimes that must be listed in an indictment of information, and which need to be proved "beyond a reasonable doubt."

The Bill has two sections that would be added to Title 11. The first, as I noted above, would make it illegal for businesses to provide access to video games that don't include ratings. The second would make it against the law for a person to sell or rent a game to an underage person, and requires checking proof of age prior to sale or rental.

I know my brother has sold nintendo video games through eBay. I'm not sure if this Bill would cover him, but I'm also not sure that the games he sells have ratings on them. It's also difficult to check ID online. Will this legislation apply to him?

More importantly, I've seen a few people refer to video games as free speech. Does this law criminalize free speech?

The Bill leaves a lot of questions open. I have more, and I'm sure that the folks who make video games, the folks who sell them, and the people who buy them will also have questions.

Here's the first section of the Bill:

Section 1367. Sale, rental, or providing access to unmarked video games; Class "A" Misdemeanor.

(a) No owner, operator or employee of a business shall sell, rent or otherwise provide to another a video game unless:

(1) The official rating of the video game is clearly displayed on the outside of its cassette, case jacket or other covering; or

(2) If the video game has no official rating, the video game is clearly and prominently marked as 'not rated'.

(b) As used in this section:

(1) 'Official rating' means the rating of the Entertainment Software Rating Board.

(2) 'Video game' means any copy of a video game that is meant to be played with a hand-held gaming device using a television or computer.

(c) A person who violates this section shall be guilty of a Class "A" Misdemeanor.

As I was looking around the web for information about video game ratings, I came across an excellent page on the wikipedia titled Video game controversy, which goes into a lot of depth covering issues involving criticism and censorship issues involving video games. I'm not convinced that violent video games cause violent children, and I'm also not convinced that a State should step in and act in place of parents when it comes to determining whether or not they should play certain games.

But it's good to be informed about the issues surrounding games.

The legislation surrenders responsibility for determining whether or not a game is harmful to a child by relying upon guidelines set up by a private company, the Entertainment Software Rating Board. The ratings from this Board were intended to be used as advisory information for parents when deciding whether or not to purchase a game. But, they weren't intended to be the determining factor in deciding whether or not criminal charges should be tied to the purchase of a game, or the sale of a game to a minor.

The second section from the Delaware House of Representatives does impart criminal offenses to those sales:

Section 1368. Unlawfully providing access to mature or adult only video games; Class "A" Misdemeanor.

(a) It shall be unlawful for a person to sell at retail or rent or attempt to sell at retail or rent, to:

(1) A person under the age of 17 any video game with an official rating of "M" for mature audiences;

(2) A person under the age of 18 any video game with an official rating of "AO" for adult only audiences; or

(3) Any person any video game rated for mature or adults only audiences without first requiring the person to show an identification card that provides a date of birth.

(b) As used in this section:

(1) "Official rating" means the rating of the Entertainment Software Rating Board.

(2) "Video game" means any copy of a video game that is meant to be played with a hand-held gaming device using a television or computer.

(c) A person who violates this section shall be guilty of a Class "A" Misdemeanor.

Microsoft has a nice guide to ratings for video games, and it's good to see that some thought went into this system. But I'm not sure if the ratings should be tied to criminal offenses. Some interesting discussion on this topic over at gamepolitics. Another thread from there on this topic generated more than 400 comments from readers - Dishing More Dirt on Last Week's Delaware Hearing

I will say that I'm convinced after reading those that a game is as much free speech as a music CD or a book. A Wall Street Journal article from this past December, Courts Lift Curbs on Kids Buying Violent Games appears to take the same stance, and points to court battles over the subject, including a passage from District Court Judge Richard Posner:

"Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture," Judge Posner wrote. "To shield children right up until the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to deal with the world as we know it."

From: American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001)

The Wilmington News Journal has offered an editorial on the subject. I can't say that I agree with all of their editorials, but I think they are spot on with this one: State shouldn't assume parent's role in picking which games kids play.








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