ESRB shows 'tough love' to game developer

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The Entertainment Software Rating Board has been called lots of things. A favorite punching bag of legislators and parents groups, it's often been accused of being too lax, of not being tough enough when rating video games for sex and violence.

However, this may be the first time that the ESRB has been called to the mat for being a bully, of all things. For being overly harsh. For "sucker punching" a game developer. One wonders whether it might be finding this new image of itself vaguely refreshing.

The scuffle began the week of July 9 when 20-year-old Garland, Texas-based developer 3D Realms, best known for the "Wolfenstein 3D" and "Duke Nukem" series, received an "Internet Warning Notice" from the ESRB. The board claimed that it had found on the developer's Web site 31 separate incidents of non-compliance with ESRB requirements. They included failure to post a ratings icon (such as "T" for Teen or "M" for Mature), using outdated icons, and not having displayed "content descriptors" like "strong language" and "animated blood and gore."

Furthermore, the notice said, 3D Realms had 10 business days to clean up its act or it would "be assigned the appropriate points and/or fines ... as well as the temporary suspension of all ESRB rating services for any other 3D Realms products." According to the notice, the "fines" were no mere slap on the wrist; multiple instances of the same "class A violation" could cost the company $10,000 per violation.

"To say I was shocked is an understatement," said Scott Miller, the company's founder and CEO. "The letter came from out of the blue giving us only 10 days to comply and it didn't even occur to them to send us the correct graphics or even link to where we might find them. Boy, I sure do feel good about having these guys as our industry overlords. The Dark Side is in control."

Miller claims that all the infractions involved games that had been posted six to eight years earlier and that, at the time, all the postings adhered to ESRB regulations. Neither he nor his staff had revisited the postings since.

"Am I supposed to know that every time the ESRB updates its icons, I need to update mine? How would I know that?" asked Miller. Indeed, because his company is a developer, Miller says he has never had contact with the ESRB; he is used to having his publisher take care of the entire ratings process. "I wonder how many other developers are aware of this requirement," he added.

"This is the first time we have ever heard from the ESRB," he said, "and we've been around for 20 years now. Which is a lot older than they are." The ratings board was established in 1994.

Miller's beef, he says, has nothing to do with compliance; his Webmaster made the changes quickly. "What I don't like is the ESRB's tone which was unnecessarily inflammatory. They came off sounding like a bully. And the demand to meet a 10-day deadline is also unreasonable, especially over a busy period like E3 [the industry trade show]."

But the ESRB adamantly disagrees.

"It's unfortunate that Mr. Miller's feelings were hurt, but let's be clear," said Patricia Vance, the board's president. "The ESRB is the self-regulatory body for the video game industry. We were established by the industry and we simply enforce the rules and guidelines that the industry has imposed upon itself. The games industry determined that there should be rules with regard to the proper display of rating information and that ESRB should enforce those rules by notifying companies who are not in compliance. We created a standard notice by which to do so, and that's precisely what Mr. Miller received.

"Unfortunately, due to 3D Realms' lack of experience submitting games to the ESRB, it would appear that they were unaware of the various industry guidelines in place and the consequences of not complying with those guidelines. However, that possibility aside, many other companies have received similar notices over the years and not one of them has ever complained about their tone. To the contrary, they are typically grateful for the information and being given the opportunity to fix the problem without further enforcement measures being necessary."

Vance denies that the notice Miller received amounted to "fix this stuff now or pay us $10,000."

"What 3D Realms received was simply a 10-day warning notice that did not carry any penalties whatsoever," she explains. "We're hardly the heavy-handed bullies that Mr. Miller is painting us as. Tough love might be a better way to describe it."

However, Miller suspects that recent incidents in which the ratings system failed the public, like the so-called Hot Coffee controversy, may have inspired the ESRB to adopt a new get-tough stance.

Indeed, the Web site GamePolitics.com reported that the ESRB recently ordered publishers D3 and 2K to withdraw Web trailers for the games "Dark Sector" and "The Darkness," respectively. The site, which covers the political side of the games industry, commented: "This has happened before but it hasn't happened a lot. It looks like the ESRB may be adopting a tougher new posture in the wake of continuing political pressure and the April FTC report on the marketing of violent entertainment to children.

It would seem that the ESRB may be caught between a rock and a hard place, industry observers note -- if it fails to enforce its regulations, critics take it to task; if it enforces the rules, the industry balks.

But the ESRB's Vance denies that her agency is going about its tasks with new vigor.

"The guidelines we enforce are industry-adopted and we've been enforcing them with the same vigor since they were adopted back in 2000," she says. "The fact that our enforcement of these guidelines is getting more attention these days doesn't mean that we're necessarily doing anything differently. [Scott Miller] may want to cast himself as a victim, but he's subject to the very same standards that the rest of the industry is, and he's the only one who has expressed any issue with that."

Hal Halpin understands what irks 3D Realms' Miller. Halpin is the president and founder of the Entertainment Consumers Assn., a nonprofit advocacy association that represents the needs of consumers who play video games.

"In my previous life, when I managed the Interactive Entertainment Merchants Assn., we managed to reduce the size of the PC game box and, in doing so, created a new standard platform identification mark," he recalls. "The vast majority of publishers and developers were eager to sign a royalty-free contract that essentially stated that they could use the trademark for free, but they had to promise not to misuse it and to keep it up-to-date with current policies and procedures. Our in-house council would periodically spot check product boxes, marketing collateral, and Web sites and -- as I'm sure was the case here with the ESRB -- send out standard form letters reminding them of their contractual obligations. Those letters were typically written in legalese, as they were sent from our attorney to the publisher's.

"I can see how the same correspondence to a developer who may not have on-staff council could be interpreted more harshly in tone than intended, as seems the case here. Honestly," Halpin said, "I believe this is more a case of that than anything with malice."

But Miller is convinced that rules can be enforced without being antagonistic. "Instead," he said, "the ESRB came out with the big guns right away as if we were some sort of bad guy. And what had we really done that was so wrong? These were just old graphics on old games that, frankly, we don't even think about anymore."

Miller says he wants to think this isn't a case in which "the pendulum is swinging too far in the other direction," he adds. "Maybe the ESRB was a little too lax a few years ago and now it's trying to be way too harsh about things. I think we may have been one of the first victims of that harshness, I don't know.

"It's probably going to look good to the public that the ESRB is being tough," he concludes. "But to those of us in the industry where, out of the 2,000 games released each year there are only a handful of problems, we're the ones who are going to have to pay for that."

Paul Hyman is the former editor-in-chief of CMP Media's GamePower. He's covered the games industry for more than a dozen years. His columns for The Hollywood Reporter run exclusively on this Web site.
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