The videogame industry initiated rating systems largely in response to threatened federal intervention in the early 1990s. On December 9, 1993, the Senate Subcommittee on Juvenile Justice and the Government Affairs Subcommittee on Regulation and Government Information convened the first of a series of three joint hearings entitled "Rating Videogames: A Parent’s Guide to Games." The impetus for the hearing was a bill proposed by Senators Joseph Lieberman and Herbert Kohl that would have “establish[ed] the National Independent Council for Entertainment in Video Devices as an independent agency of the federal government to oversee the development of ‘voluntary’ standards to warn parents of the content of videogames.”
In response to this proposed federal action, two major game developers — Sega of America and Nintendo of America — agreed to work together as part of a coalition of game developers to establish a rating system for videogames. The Software Publishers Association (“SPA”) — an industry trade group for developers, publishers, and online distributors of software for personal computers — and the Video Software Dealers Association (“VSDA”) — an industry trade group representing retail sellers of software — announced the formation of an industry coalition at a press conference shortly before the December 9, 1993 Senate hearing.
In January 1994, the SPA, along with other trade associations, set up the Game Ratings Working Group, which brought together representatives from both the videogame and computer game industries. The companies and organizations participating in the Working Group “represent[ed] nearly 3,000 software developers, publishers, and distributors — virtually the entire personal computer software industry.”
But a split soon emerged within the Working Group between the developers and publishers of personal computer software and the developers and publishers of videogame software, the latter of which can be played only on a cartridge- or compact disc-based console system, such as those produced by Sega and Nintendo. By April 1994, a group of videogame companies had formed the Interactive Digital Software Association (“IDSA”) to advance the industry’s fledgling self-regulatory efforts. The IDSA and the Working Group proceeded to develop separate rating systems for interactive software. In the meantime, the American Amusement Machine Association, an industry trade group representing over 120 manufacturers, distributors, and parts suppliers of coin-operated amusement equipment, began creating yet a third rating system to provide public disclosure of the violent content of coin-operated videogames.
IDSA/ESRB System Edit
Congress held follow-up hearings on the videogame industry’s self-regulatory efforts in March, June, and July 1994. In March, Jack Heistand, a representative of the Interactive Entertainment Industry Rating System Committee (a pre-cursor to the IDSA), outlined five principles underlying the videogame industry’s plans for a self-regulatory system:
- (1) the Committee would form a new industry trade association (the IDSA) and create, as an independent arm of the association, a ratings board made up of people from a variety of fields, including educators, parents, child development experts, business representatives, and others;
- (2) the board would determine a final rating for games before they reach store shelves;
- (3) the board would develop rating symbols, which would be accompanied by a description of the content of the game, such as “contains graphic depictions of animated violence”;
- (4) all packaging, advertising (television, radio, online, and print), and consumer marketing material would display the rating symbol; and
- (5) all members of the trade association would agree to adopt a voluntary advertising code of conduct that would include guidelines on “such things as properly targeting ads to users for whom the product is rated as appropriate.”
Mr. Heistand also described several elements of the IDSA’s rating process. The ratings board would have an executive director (chosen by the trade association’s board of directors) who would be responsible for selecting “expert independent raters” whose identities would be unknown to the industry and the trade association staff. The raters would be paid by the ratings board, not the trade association. To obtain a rating, a publisher would submit a video tape of game play to the ratings board as late in the development process as possible. Publishers would be required to submit tapes that “show the boundaries of the game and include the most extreme portions that could affect the rating,” along with an affidavit answering a series of questions about the game and certifying that the submission is representative of game play. The system would result in “tough sanctions” against companies that withheld relevant information and, in effect, secured a rating fraudulently.
In June and July 1994, Mr. Heistand and Douglas Lowenstein, president of the newly formed IDSA, reported to Congress on IDSA’s progress in creating a rating system, which was formally approved and implemented in September 1994, including the formation of “an independent, third-party entity” (eventually known as the Entertainment Software Ratings Board (“ESRB”)) to assign ratings to software.
The ESRB rating system became the industry’s predominant rating system. It covers entertainment software for all platforms, including personal computers and videogame consoles, that are intended for distribution through retail establishments, mail order, and online.
Recreational Software Advisory Council Edit
In September 1994, the Software Publishers Association (SPA)-sponsored Working Group founded the Recreational Software Advisory Council (“RSAC”), with the mission of “providing parents and other consumers with the information they need to make wise decisions about the recreational software they bring home.” As explained to Congress by the SPA counsel, RSAC was incorporated as an organization outside of any industry trade association “[b]ecause independence from industry is essential for the credibility of a ratings program . . . .”
Like the IDSA/ESRB system, the RSAC system assigned ratings to software titles before they were shipped to retailers, and authorized the imposition of penalties, such as fines and product recalls, for companies that submitted misleading information about game content during the rating process. The assignment of an RSAC rating was largely based on a self-report of the game's content by the developer or publisher after completing sworn responses to a detailed questionnaire. The developer or publisher was required to complete a highly specific, definition-intensive questionnaire concerning the game's content, and a computer program automatically assigned a rating to the game based on these answers.
Unlike the IDSA/ESRB system, the RSAC system did not rate games based on age appropriateness. Rather, it rated content according to three criteria: violence, nudity/sex, and language. If there was no violence, nudity/sex, or offensive language in the game, the game receives an "All" rating, meaning that it is suitable for all audiences. If the game contains any degree of violence, nudity/sex, or language, however, a content icon(s) representing violence, nudity/sex, and/or language would appear on the game.
A four-degree thermometer icon also appeared next to the RSAC content icon; a higher "temperature" on the thermometer indicating a more intense degree of violence, sexual content, or profanity. Thus, for example, a game depicting situations in which creatures were injured or killed might justify a violence icon (pictured as a bomb with a burning fuse) and a temperature level of one degree, whereas a violent game that depicted torture or rape would justify a violence icon and a temperature level of four degrees. Depending upon the violent content of the game, descriptors such as "creatures killed," "humans killed," "blood and gore," or "wanton and gratuitous violence; rape" also might appear on the RSAC Advisory label.
The RSAC rating was required to be displayed in accordance with minimum size requirements on the front panel of all packaging and printed retail displays associated with the rated software. If the software was distributed in a purely electronic form without significant physical packaging, the ratings information was required to be displayed prominently on the boot-up display of the software title; the IDSA/ESRB system, by contrast, required only that the rating information appear on the page where the game information (such as price) was provided, not within the game software itself. The RSAC system did not impose any requirements for the display of rating information in marketing materials or regarding the manner or media in which it was appropriate to advertise the games.
The ESRB rating system became the industry's rating system of choice. By the end of 1999, only one software publisher was using the RSAC’s rating system for its games, and the last time any one of the eleven game publishers sought an RSAC rating was in February 1997.
Starting in April 1996, the RSAC system was redesigned for use on the Internet and launched as RSACi. RSACi was "folded into" the ICRA (formerly the Internet Content Rating Association), which is part of the Family Online Safety Institute. The original aims of RSAC, to protect children from potentially harmful content while preserving free speech on the internet, continued to provide the cornerstone for the Institute's work, backed by some of the biggest names online.
System for Coin-Operated Games Edit
The American Amusement Machine Association (AAMA) and the Amusement and Music Operators' Association (AMOA) manage a separate industry rating system for coin-operated games. These two associations, with help from the International Association of Family Entertainment Centers and the International Association of Amusement Parks and Attractions (now the International Association for the Leisure & Entertainment Industry (IALEI)) initiated the development of a Parental Advisory System, concurrent with the development of the ESRB and RSAC systems. The Parental Advisory System was implemented in 1998.
Unlike the ESRB system, the Parental Advisory System does not use a rating board. Similar to the RSAC system, the AAMA provides manufacturers and developers with a "System Guidelines" sheet to help them determine the appropriate rating through a series of questions about the game's content. Like the RSAC system, the Parental Advisory System does not link the suitability of games with mild or strong descriptors to any age. However, a Code of Conduct developed by industry trade groups encourages the staff of coin-operated game establishments to discourage "children who are unaccompanied by a parent" from playing videogames labeled with a red (strong) disclosure message. The Code also states that the manufacturers and developers of video coin-operated games should strive to create fewer violent games and more games that are suitable for people of all ages.
The Parental Advisory System uses four different content descriptors: animated violence, life-like violence, sexual content, and language. Warning labels include one of the above content descriptors on a green, yellow, or red sticker depending on the level of that behavior188 exhibited in the game — green meaning "suitable for everyone," yellow meaning "mild," and red meaning "strong." Because each content descriptor warrants a separate disclosure message, it is possible for one coin-operated game to have four red ("strong") disclosure messages, one for each content descriptor. These disclosure messages must be of a minimum size, and must appear in the artwork of the front header portion of each game unit. Beginning in the summer of 1999, AAMA also has asked manufacturers to include in all advertising for coin-op videogames a color-coded Parental Advisory Disclosure Message setting out the games’ content descriptor (e.g., "Life Like Violence Mild").
Although an industry study found that parents "offered praise for the industry's initiative in providing information regarding the content" of games, it also concluded that parents "explicitly permitted their children to play coin-op games that contained ‘Strong’-rated content."
- ↑ Rating Video Games: A Parent’s Guide to Games: Hearings Before the Subcomm. on Juv. Just. and the Gov’t Affairs Subcomm. on Reg. and Gov’t Info. of the Senate Comm. on Gov’t Affairs, 103d Cong. (1993) [hereinafter Rating Video Games], reprinted at 1993 WL 664394.
- ↑ Id. at 11 (statement of Sen. Orrin G. Hatch), reprinted at 1993 WL 664409. It also would have provided an exemption from the antitrust laws for the industry to develop such standards. Id.
- ↑ Jane Greenstein, "Game Makers Moving Toward Rating System," 14 Video Bus. 1 (Jan. 7, 1994).
- ↑ Senator Lieberman lauded the industry’s intention to create a voluntary rating system, but articulated three concerns he wished to see addressed in any such system:
“ First, there are questions about the system itself: who will do the rating? Will all manufacturers participate? How many age-specific ratings will there be? Will the industry spend money to inform parents about the meaning of the ratings?
Second, a rating system must not be perverted into a cynical marketing ploy to attract children to more violent games. We must not allow industry to trumpet a violent rating as a selling point. Third, the industry must work to enforce whatever rating system it creates. It must consider licensing agreements and contracts which specify that ratings will be clearly visible in any advertising and understandable by parents and consumers. Distributors such as video rental stores or toy stores should face some contractual penalties from manufacturers if they sell or rent to children below the minimum ages in the ratings.
Rating Video Games, at 3-4 (statement of Sen. Joseph I. Lieberman), reprinted at 1993 WL 664383.
- ↑ The Working Group also encompassed the following trade and professional organizations: Association of Shareware Professionals, Educational Software Cooperative, Shareware Trade Association and Resources, the Software Entrepreneurs Forum, and the Computer Game Developers Association. See Rating Video Games, at 171-72 (testimony of Mark Traphagen, Counsel, Software Publishers Association), reprinted at 1994 WL 394778.
- ↑ Id. at 171.
- ↑ Id.
- ↑ “[P]ersonal computer software is designed for an ‘open platform,’ which can run software developed and published by thousands of different companies without the need for restrictive license agreements” from the platform developer. Id. at 172. By contrast, games for console systems must be licensed by the console manufacturers.
- ↑ Violence in Video Games: Hearing Before the Subcomm. on Telecomm. and Fin. of the House Comm. on Energy and Commerce, 103rd Cong. 14 (1994) [hereinafter Violence in Video Games] (statement of Douglas Lowenstein, President, Interactive Digital Software Association). The founding members of IDSA were Acclaim, Atari, Capcom, Crystal Dynamics, Electronic Arts, Konami, Nintendo, Philips, Sega, Sony, Viacom, and Virgin Interactive. Id.
- ↑ The Working Group and the IDSA had several sources of disagreement. First, IDSA had proposed creating a software ratings board as an arm of the IDSA, but the SPA was concerned that situating the ratings board within an industry trade association would be tantamount to an “insulated” ratings system lacking objectivity and creating the appearance of favoritism to the industry. See Rating Video Games, at 172. Second, the SPA was distrustful of a ratings system potentially controlled by the videogame industry, fearing that the videogame industry would exercise its influence to reduce the availability or competitiveness of personal computer software. Id. at 172–73. Third, the SPA and IDSA harbored differences over the ratings categories, the rating structure, and the ratings process itself. Id. at 176.
- ↑ Id. at 177 (statement of Steve Koenigsberg, President, American Amusement Machine Association), reprinted at 1994 WL 223121.
- ↑ The Committee members included Electronic Arts, Acclaim, Atari, Nintendo, Philips, Sega, and the 3DO Company. Id. at 88 (testimony of Jack Heistand, Senior Vice President, Electronic Arts, Chairman, IDSA), reprinted at 1994 WL 223061.
- ↑ Id. at 89.
- ↑ Id.
- ↑ Id. at 89–90.
- ↑ Id. at 90.
- ↑ Id.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 90.
- ↑ Id. at 90. These sanctions could include a trademark enforcement suit with the threat of a civil penalty or a demand that a company re-sticker a product already on the market. Id.
- ↑ Violence in Video Games, at 15. In September 1994, the IDSA formed the ESRB as a separate division of the IDSA for the purpose of independently rating the content of interactive entertainment software for all platforms. Although IDSA developed the ESRB rating system (as well as the ESRB itself), it has strived to avoid any involvement in the issuance of ratings by the ESRB or in ESRB’s interpretations of its rating guidelines.
- ↑ News & Info: About the Entertainment Software Rating Board.
- ↑ Rating Video Games: A Parent’s Guide to Games: Hearings Before the Subcomm. on Juv. Just. and the Gov’t Affairs Subcomm. on Reg. and Gov’t Infor. of the Senate Comm. on Gov’t Affairs, 103rd Cong., at 173 (1993), reprinted at 1993 WL 664394 [hereinafter Rating Video Games].
- ↑ Id.
- ↑ RSAC Ratings Application, at 2.
- ↑ The founding members of RSAC decided not to develop an age-based rating system because "not all families are the same." Cyberporn and Children: The Scope of the Problem, The State of the Technology, and The Need for Congressional Action: Hearing Before the Senate Comm. on the Judiciary, 104th Cong., at 93 (1995) (testimony of Stephen Balkam, Executive Director, Recreational Software Advisory Council), reprinted at 1995 WL 435917. According to RSAC, "[t]he FDA food labeling system was used as a model, as it provides objective and quantifiable measures of various ingredients within a product without making a judgment as to who should or should not purchase it." Id. at 95.
- ↑ RSAC Ratings Specifications.
- ↑ Both the RSAC Ratings Application and the RSAC Ratings Specifications described how the ratings information was suppose to be displayed on software packaging and in associated retail displays. They did not set out requirements for other forms of advertising or marketing, although the company was permitted to use the rating in advertising. RSAC Ratings Application at 2, 3; RSAC Ratings Specifications.
- ↑ The AAMA is a non-profit trade association, based outside of Chicago, Illinois, which represents approximately 150 manufacturers, distributors and parts suppliers of coin-operated amusement equipment.
- ↑ The AMOA is a non-profit trade association, headquartered in Chicago, Illinois, comprised of approximately 1,700 owner/operators, distributors, and manufacturers of coin-operated amusement, music, and vending equipment.
- ↑ The IALEI is a trade association based in Symonds, New Hampshire that represents owners and operators of family and location-based entertainment facilities.
- ↑ See "Parental Advisory System" (full-text).
- ↑ See http://www.coin-op.org/Parental%20Advisory%20System%20Code%20Of%20Conduct.htm.
- ↑ Id.
- ↑ See "AAMA On the Record: We’re Willing to Consider More Show Consolidation," RePlay Mag., Oct. 1999, at 160. Generally, advertising for coin-operated games occurs in trade publications that are not usually seen by the general public.
- ↑ AAMA, AAMA Report to Congress: A Report on the Industry’s Pilot Study on Implementation of Access-Limiting Measures Under the Coin-Operated Video Game Parental Advisory System 26 (1998) (submitted to Senators Herbert Kohl and Joseph Lieberman).