L.A. Needs to Get Back all That Rampart Lawsuit Money Somehow

The city of Los Angeles files suit against the makers of "Grand Theft Auto: San Andreas" for false advertising and unfair competition, since if the Entertainment Software Ratings Board had known about its secret sexual content, L.A. City Attorney Rocky Delgadillo claims, it would have gotten an "adults only" rather than merely "mature" rating and supposedly sold fewer copies. This could make game maker Take-Two Interactive's stock a worse buy than Fortune is already saying it is.

Delgadillo could have a field day attacking one of his own city's greatest industries with this sort of close reading of the implicit meaning of entertainment advertising and marketing; I hereby publicly tip him off, for example, that the Laugh Factory only rarely produces mirth; and that despite what it says in many ads, it is altogether possible that Brokeback Mountain is not the "best picture of the year"--get some city attorneys on it, Rocky.

Comments

[jp]

Hey, Primal Health Man knocked off the Carpet Humper. Way to go, PHM!

[Dave W.]

Would you be happier if Take Two competitor's had sued it for false advertising?

The false advertising seems clear enough. Personally, I would be more comfortable if Take Two competitor's had been the ones who decided to sue. However, if Take Two is a lot bigger than its competitors, they may not be willing to defend their rights for reasons not really related to the false advertising injury they suffered.

What is worse, if a private standards setting body that the public relies on is duped (as was the case here), then there is also a harm to the public at large who relied. A poke in the ribs lawsuit to get the private standards setting body back into the land of accountability seems much preferable to some of the likely alternatives, like one of those messy class action suits, or like setting up a gov't standards setting body.

Maybe your comments about the Take Two stock value are meant to imply that Take Two has already suffered enuf for its false advertising. Maybe, but your suggesting that possibility (if you are) don't make it true.

[xray]

DaveW: what false advertising?

[independent worm]

The city of Los Angeles files suit against the makers of "Grand Theft Auto: San Andreas" for false advertising and unfair competition

I thought you had to be a "competitor" to have standing to sue for those things. Am I wrong?

[thoreau]

I thought you had to be a "competitor" to have standing to sue for those things.

The LAPD is the city's number one provider of mayhem and chaos.

[Brian Doherty]

As the news story from MTV linked from "files suit" says, what Take Two did supposedly involves "violating the state's business code" and thus breaking the law and leaving them open to suit. I am not myself a professional city attorney, mind.

[independent worm]

The [California] Unfair Competition Law [Bus. & Prof. Code ? 17200, et seq.] on its face, and as interpreted by the courts, has unique standing provisions with respect to enforcement. Certain public prosecutors, as well as private parties may sue for violations of ?17200 as well as ?17500. ... Although the remedies differ, private parties have standing to sue not only on their own behalf but on behalf of "members of the public," without having to bring a class action.

OMFG. I had no idea. California has GOT to be the only state that's like that. Holy shit. No wonder they have so many lawyers.

[Lionel Hutz]

Mr. Simpson, this is the most blatant case of fraudulent advertising since my suit against the film, ?The Never-Ending Story.?

[rdkraus]

Worm, there is a whole industry out there built on this nonsense. It's lawsuits that benefit the lawyers and no one else.

[MP]

iw,

You need to read Overlawyered more often.

[Mr. F. Le Mur]

what false advertising?

Well, the State, as usual, uses false claims to advertise itself:

1 - Stating that, barring fraud or force, there's such a thing as "unfair competition."

2 - Stating that "sexual content" is harmful to anybody.

[James Feldman]

If I'm not mistaken, wasn't the "secret sexual content" eliminated from the game as shipped, and then rediscovered by enterprising gamers and made availible through a user-created mod? So how is Take 2 guilty of anything, if the content was not accessible to anyone in the game they shipped?

[David]

The false advertising seems clear enough

I'm not sure it is, Dave. First, you'd have to consider the "M" rating to be advertising. Take Two doesn't assign the rating to its own games as a marketing tool, it submits games to have a rating assigned by the ESRB. The game, as released, does qualify for the "M" rating. It is only with with a modification made after purchase that it becomes "offensive". You'd also have to assume that Take Two plays up the "M" rating as opposed to the "AO".

[Pro Libertate]

?17200 is an evil law. California uses it to assert jurisdiction over companies for things they do in other states. Nice. The Federal Republic of California has spoken.

[Dave W.]

First, you'd have to consider the "M" rating to be advertising. . . . You'd also have to assume that Take Two plays up the "M" rating as opposed to the "AO".

Okay, let's consider it. Are there stores out there that sell M games, but won't sell "Addults Only." Is the answer: yeah, most stores are like that. I don't know. I do know that R and/or X ratings are widely perceived has being a detriment to movie ticket sales, so it wouldn't surprise me that if there is a similar dynamic in the game software market. If it was the M rating that enabled GTA to get into WAL*MART, then I think Take Two did "play up" the M rating, even if the playing up consisted entirely of letting WAL*MART know that the game was "M" at some closed door meeting or another.

The game, as released, does qualify for the "M" rating. It is only with with a modification made after purchase that it becomes "offensive".

This is an interesting issue, but it is just that -- an issue. Even without considering this issue thoroughly, you can see some factors that might be relevant: did the powers that be at Take Two know about the hidden code? have other games (prior to GTA SA) been hacked in a similar way? was it known that there are hackers out there looking for just such hidden content?

If the "hidden" code was really, really hidden then Take Two may have a good defense. On the other hand, if they were playing dumb* then it seems like any otherwise-existing liability should still attach. I imagine there are many shades of grey in between. The key is that we can't really know the answers on this issue until we know what Take Two thought, knew and/or had reason to know at the relevant time. But you can't find this out unless you get discovery. and you can't get discovery until you bring a suit. Presumably if the discovery shows that Take Two had good reason to believe and did believe that its code would stay hidden, then the suit can be settled favorably to Take Two before trial (especially if Take Two co-operates really nice and gives the discovery quick & painless (lol)).

[independent worm]

You need to read Overlawyered more often.

I hadn't looked at it in a long time. Last few times I did, it always comes across as one of those "I lost my kids in a custody battle so I hate the entire legal system and I wanna go and shoot everybody at the courthouse" type of rant-o-ramas. Not that I mind a little ranting, but it was a little too ranty for my personal tastes.

The site looks to be re-done since then, and comes across as more reasonable (where I'm not going to see dollar bills referred to as "slave paper" or "FRAUDs", or see raves about how the fringe on the flag at the courthouse nullifies the court's jurisdiction, or how the signs of the zodiac trump the US Constitution). Good to see. Might have to start looking at it again.

Have not encountered this section 17200 stuff before, but it helps, I guess, that I am 3,000 plus miles away and the laws of certain former colonies of which I have knowledge do not contain such free-for-all-inducing kinds of provisions.

[Dave W.]

FOOTNOTE FROM PREVIOUS (plying dumb*):

* makes me think of the Simpsons quote: we just lower the net; for liability purposes it is the sea that will kill you.

[Larry A]

IMO what LA is actually pissed about is that GTA pictures the city as rife with car theft, murder, rape, prostitution, and other forms of mayhem. But they'd have a tough time getting a false advertising suit out of that.

[rdkraus]

MP

That's great. I had a client that was sued as part of one of these suits, and it was an eye-opening experience, to say the least. Dozens of big companies tossed in thousands of dollars to settle out, even though no money (zero) was going to any customer of the product, or "victim" of any kind. All the money went to the lawyers and/or a foundation they had that sponsored more of these lawsuits; I swear it's the truth.

I had one telephone conversation with a Plaintiff's lawyer (before I figured out what was really going on) where I kept asking who had been damaged, and who was going to get any money my client paid. Ultimately, she hung up on me.

[ChrisO]

This is an interesting issue, but it is just that -- an issue. Even without considering this issue thoroughly, you can see some factors that might be relevant: did the powers that be at Take Two know about the hidden code? have other games (prior to GTA SA) been hacked in a similar way? was it known that there are hackers out there looking for just such hidden content?

Disagree. It is a controlling issue of law, not an issue of fact. As such, discovery and trial proceedings are inappropriate. All parties agree that the game, as released, did not contain sexually explicit content. Subsequent modification by third-parties destroys proximate causation ("legal" cause as opposed to "factual" cause) on the company's part. Unless the complaint pleads some kind of fact to show that the company secretly intended for the explicit content to be revealed (which seems unlikely), this case should be dismissed on summary judgment before any discovery occurs, if you ask me. And the issue of whether a third-party game rating can constitute "advertising" is also a matter of law, not fact.

Merely filing a lawsuit does not give the DA (or any other litigant) grounds to go on a fishing expedition--they have to have a sound legal and factual basis for their suit in order to survive a motion for dismissal or summary judgment, and I don't see that here. Of course, it's kooky California we're dealing with, so who knows what will happen. But if I were the company, I would ask for attorneys fees and costs from the city for having to defend such a BS suit.

[Bonar Law]

California's law may be "kooky" and oppressive, but that doesn't mean *only* California lawyers would have a problem with this situation.

A couple clicks led me to this story, which explains the difference between the "Mature" and "Adult" versions of the game:

?Gamers have always been able to send the title's protagonist, CJ, on dates with women. If players could, through CJ, sufficiently charm one of these ladies, they'd get an invite to the her house for 'hot coffee.' At that point, the game's camera would remain outside the house, but the muffled noises emanating from within the digital domicile left no doubt as to what the 'coffee' really was.

?Wildenborg's [i. e., the hacker's] mod tweaked the game, so that an invitation for coffee would lead to an interior view of CJ and his date in the bedroom indulging in their affections, according to Internet reviews by people who successfully ran Wildenborg's programming trick. More than a non-interactive cut scene, the couple's copulation would play out as a controllable mini-game. Button presses affected performance.?

OK -- sex *sounds* are "mature," while graphic footage of sex is "adult." Whether it's a reasonable distinction is up to the ESRB.

Do I understand that the manufacturer submits its games for ESRB approval? If so, this might be problematic.

I don't know what happened in this case, but I can imagine being an unscrupulous game developer. I create a game with two version: One version would be accepted as "mature" by the ESRB, the other version would be rated "adult." I submit the "mature" version to ESRB, but (without telling the ESRB), I have the "mature" version behind some sort of firewall that needs a special program to break through. Then, after the ESRB gives the game a "mature" rating (allowing the game to be sold at Wal-Mart and other places which don't sell "adult" games), I send word through the hacker community about how to access the adult version of the game.

This results in a trifecta of beautiful, profitable publicity: First, the news of the adult version circulates, prompting more kids to nag their parents into buying the game ("I suppose I can get little Johnny a 'mature' game; after all, Wal-Mart is selling it!"). Then, the MSM learns about what's going on, and the "scandal" gives my game extra publicity, so I sell even more copies. The ESRB locks the barn door by re-rating the game as 'adult,' but I've already managed to sell lots of copies of the game thanks to its "mature" label. Then, if I'm accused of false advertising, I scream "Hillary Clinton is censoring me!" and hope people will swallow it.

[Dave W.]

Unless the complaint pleads some kind of fact to show that the company secretly intended for the explicit content to be revealed (which seems unlikely)

This is where we disagree. This is the part that I think likely becomes a fact issue. However, if the plaintiff did fail to plead this theory, then I am with you. It would Demurrer (sp? California still have this wonderfully-named form of pleading?) City.

[Stretch]

Simply put, this is content that Rockstar removed from the game either because they felt it crossed the line or because (if you've seen it) it's just plain silly. In order to claim "false advertising", you'd have to prove that Rockstar intended for the material to be uncovered and used that to boost sales. I'm sorry, but that's just not the case.

GTA is one of the best selling game franchises ever. It was selling like hotcakes long before the hot coffee mod was discovered, and considering that you have to download the code from the internet, the majority of all GTA:SA owners can't even access the content. There is no plausible way that this was a ploy to gain any sort of unfair advantage. Secondly, I'm not convinced that it would be enough to actually merit an AO rating, considering that a game like God of War has considerably more TnA and even a semi-offscreen but very obvious sex mini-game.

[Bonar Law]

"In order to claim 'false advertising', you'd have to prove that Rockstar intended for the material to be uncovered and used that to boost sales. I'm sorry, but that's just not the case."

I don't know if such was their intention, but it's is hardly beyond the bounds of possibility. A company which is willing to make a buck by selling violent (and apparently racist) video games to kids shouldn't be surprised if it's suspected of cutting some other moral corners as well.

They're not claiming that some disgruntled former employee slipped the sex footage into the game ("how did *that* get in there? We're as much victims as anyone!"), but that they put it in, and then tried (not fully successfully) to delete it. Maybe that's true, but can you blame people who don't immediately rush to believe it?

[ChrisO]

I don't know what happened in this case, but I can imagine being an unscrupulous game developer.

I can imagine it, too. Problem is, you need a little more than imagination in order to bring suit. Your scenario sounds a lot more like out-and-out fraudulent business practices, which (IIRC) is covered under a different, and more onerous, section of the California B&P Code.

I'm going to take a wild guess and say that the more likely scenario is that the offending code was accidentally left in the game, rather that purposely installed to be found in a third-party hack. From my limited experience with strategy games (shoot-em-ups bore the shit out of me), the bigger developers aren't fans of user mods.

It would Demurrer (sp? California still have this wonderfully-named form of pleading?) City

Yes, Cali still uses demurrers and writs, which is kind of weird since Calif. has pretty liberal pleading standards, unlike such other procedural mavericks as Oregon and Virginia. Whenever I review Calif. case opinions for my job, I have to look several times to get past the kooky terminology.

[Dave W.]

GTA is one of the best selling game franchises ever. It was selling like hotcakes long before the hot coffee mod was discovered, and considering that you have to download the code from the internet, the majority of all GTA:SA owners can't even access the content. There is no plausible way that this was a ploy to gain any sort of unfair advantage.

If I were the judge and Take-Two tried to feed me something like this, I would make extra sure that Take-Two did a good job responding to discovery requests.

[grylliade]

All this presumes that San Andreas would have gotten an AO rating if the minigame had been left in. That's by no means certain. A number of games with sexual content much more explicit than the Hot Coffee mod were given M ratings. Singles comes to mind, a game that's basically The Sims 2 with nudity. And oral sex. And sex. And masturbation. And homosexuality. All portrayed pretty graphically. Not hardcore, but definitely the equivalent of softcore porn, though I suspect that's the result of programming limitations rather than intent. But this got an M rating, as did the Playboy mansion game (the name of which escapes me at the moment). Would it have been the combination of sex and violence (not at the same time) that got San Andreas an AO rating? Or is it just the ESRB trying to cover their ass by pandering to politicians that made them say that it would have?

Further, to unlock Hot Coffee isn't just as simple as downloading a file and executing it. Hot Coffee isn't an executable file; it's a zip of files that you have to unzip, then copy over into a subdirectory of the game directory. You can't unintentionally install the mod; you have to have downloaded it, read the readme file that tells you what the mod is, as well as what to do with the files, and then do it. It's easy, but it's not something you can do without realizing what you're doing. The argument against this is that kids might mod the game without their parents' knowledge. Well, damn, you mean that parents that are negligent enough to buy their kids this game should have a leg to stand on? I mean, you have to be a moron to have missed all the controversy over Grand Theft Auto in the media, take your kid to the store, ignore the rating sticker, ignore the dude at the register asking you for your ID, and then ignore the sounds of gunfire coming from your kids' TV while he's playing it. I thought libertarians were against the government protecting us from our own stupidity, by and large.

[Erik]

The PS2 and XBox versions sold the vast majority of the copies. PS2 requires a 3rd party hardware device to unlock the hidden content, which is not hardcore/X/AO to the best of my knowledge (no visible penetration, no ejaculation). The PC version requires a downloaded file and additional work.

Take Two didn't make these features accessable to the market. The Hot Coffee portion of the game is an unintended use of the product: Sony doesn't make the hardware that accesses the code, and your legitimate, purchased software doesn't run the Hot Coffee file.

If Take Two doesn't bring this content to market, yet it is on the software they sell, where does that leave us? If I masturbate using a can of cream of mushroom soup, did Campbell's make an obscene product (saw this at the LA Museum of Modern Art a few years ago)? If I kill someone with my chef's knife, should Henkel be held responsible for deceptive practices? If I play Baldur's Gate: Dark Alliance and don't put any armor on the female elf character, she runs around in a thong and triangle top. This isn't the intended way the game is to be played, but ut certainly makes me question the "Teen" rating when I get a face full of Elvish jubblies every time I look at the character.

GTA:SA is intended to entertain--if people manipulate it to entertain themselves in other ways, so be it. The game as sold was reviewed by an independent board, and they agreed on an "M" rating. ESRB is not as dumb as they look, and they know that at least on the PC version, people could easily make skins (alternate images) for characters in the game. You could easily make all the women naked as they walked around. But to do so, you would have to alter the product or the way it was used.

The product was sold as "M". Take Two may or may not of had the intent to hide "AO" content on the software. But it was not accessable without 3rd party assistance. Take Two did not gain any advantage on the marketplace or hurt sales of its competitors by having this content on the game. Unless there is proof that Take Two provided payment to the 3rd parties that unlocked the content, there was not commercial malfeseance. No minors are allowed to purchase the game with an "M" rating in the first place, so there is no "for the children" arguement to stand behind. Adults purchased a game with known violent and sexual content. There was additional sexual content that was accessable with non-Take Two hardware or software. But the fact stands that the game, used in the way it was intended and in the way that it was presented to market is an "M" game. Even if there was a deception involved, which has yet to be established, there is no damage.

[Stormy Dragon]

Yeah, who could possibly have expected a game named Grand Theft Auto to have objectionable content in it?

[Stretch]

Look, I'm not saying Rockstar is a moral, or even a decent company. There are already federal investigations going on to determine whether or not they intentionally lied to the ESRB, and they may well get smacked for that. But to go from there to the idea of "unfair competition" in LA is absurd, imo.

GTA:SA was going to be one of the best selling games of all time regardless of this mod. And, in fact, it was long before anyone even knew about it. If anything, this has cost them sales as they've had to suspend sales, reprint a "clean" version, issue AO stickers, develop a patch, lose support of many large retailers and had to engage in numerous lawsuits.

I have no problem with thinking that they expected this mod to be discovered. Maybe they thought it was funny, and that a few people would laugh and talk about it. That's a far cry from intentionally trying to boost sales with this laughable and minor content. If anything, it's the negative media and the pandering politicians that have now created a "black market" for original copies of the game. They've succeded in making the "dirty" copy a collectors item, one which the developer can't sell but we can. Of course, that's not such a bad thing since you can't actually open a collectors item.

[Dave W.]

Erik and Grillaid,

How many companies do you want L.A. to sue? It doesn't sound like you are exonerating Take-Two so much as you are setting up claims against other software makers and the industry association that created and implements the standards. If the rating system is a big sham, that is arguably a form of false advertising, too.

also, Doherty is back on his quest to find contradictions apparently with that thing about one of the "city's greatest industries." Yes, Doherty, a LA is one of those rare cities that knows that a private ratings system that can be somewhat trusted by parents will cause a healthier, larger market over the long run as compared to an industry where the rating system is a sham. LA is doing what it is doing because it knows that a reliable, honest, transparent ratings system can be economically helpful to a great industry, and LA has special expertise in the area, leading potentially to greater economic synergy locally. It is also quite possible that some local concerns *WANT* LA to bring this suit, even if they are too chicken, too impoverished or would jeopardize too many business relationships to bring the suit themselves.

[Dave W.]

would jeopardize too many business relationships

In other words, how would you like to be software house that brought a false advertising suit and then had deal with the console makers, who might not like the suit?

[Bonar Law]

?a face full of Elvish jubblies?

Sounds like a good name for a rock band. Darn it, you distracted me; I forgot what I wanted to say. Oh, yes . . .

?I'm going to take a wild guess and say that the more likely scenario is that the offending code was accidentally left in the game, rather tha[n] purposely installed to be found in a third-party hack.?

That would make them innocent. But if they admit installing the adult stuff, they should at least explain how they went about trying to delete it. Given that their attempts at deletion weren't successful, they should come up with a plausible account of the purportedly good-faith steps they took, and how come these steps weren't enough to remove the adult content from prying eyes.

?Take Two may or may not [have] had the intent to hide 'A[dult] O[nly]' content on the software. But it was not accessable without 3rd party assistance.?

If they deliberately (as opposed to accidentally ? accidents happen) put extra content in a game, the question is why? For the purpose of a private joke? Or in the hope that at least *some* gamers might access the extra content? If the latter was the intent, then the intervention of ?third-party assistance? shouldn't shield them from responsibility. If they intended that the game have extra content for *some* gamers, they should have so notified the ESRB.

?No minors are allowed to purchase the game with an 'M' rating in the first place, so there is no 'for the children' argu[]ment to stand behind. . . . Adults purchased a game with known violent and sexual content.?

If parents want to differentiate among degrees of sexual content, as the ESRB apparently does, that is their right, whether it makes logical sense or not. If the ESRB's ratings are arbitrary, the company shouldn't submit to those ratings. Unless (here's a wild guess) they *need* an ESRB rating to get access to certain stores (like Wal-Mart).

?I have no problem with thinking that they expected this mod to be discovered. Maybe they thought it was funny, and that a few people would laugh and talk about it.?

If they expected even *some* gamers to discover the extra content, they should have notified the ESRB of said extra content. If they lose more money on the gimmick than they expected, that shouldn't affect the intent.

[mediageek]

Anyone capable of installing the "Hot Coffee" mod is more than adequately skilled to download all the hardcore, live-action video content they want via the internet.

This lawsuit is fucking stupid.

[David]

I miss the days when games had no rating system.

[D.A. Ridgely]

'I thought you had to be a "competitor" to have standing to sue for those things.'

The LAPD is the city's number one provider of mayhem and chaos.

Now THAT'S funny!

[Bonar Law]

"Anyone capable of installing the 'Hot Coffee' mod is more than adequately skilled to download all the hardcore, live-action video content they want via the internet.

"This lawsuit is fucking stupid."

Assume these kids can download all they want off the Internet -- they still seem to think it's *also* worth their while to access the steamy "Hot Coffee" sequence in the game. Many of them are getting the Hot Coffee sequence in a game their parents bought for them -- their parents relying on a voluntary video rating body which (it turns out) wasn't familiar with this most interesting Hot Coffee sequence.

These parents might have been relying on the assurances of people who praised the usefulness of private rating systems for games. It may be on the basis of these assurances that they have been opposing government regulation.

Now some big-government types will be using this case to illustrate how private game regulation doesn't work -- "the ratings aren't even based on what's in the game, only on those selected parts of the game the company chooses to show! Let's have a government censorship board instead of these private, toothless, watchdogs!"

Dave W mentioned how the private regulators have to establish their credibility, and demonstrate that there are consequences for cheating (if that's what the GTA designers have done). If this doesn't happen, the soccer moms will be ripe for the picking by Hillary and her brethren and sistern.

[mediageek]

"Assume these kids can download all they want off the Internet -- they still seem to think it's *also* worth their while to access the steamy "Hot Coffee" sequence in the game. Many of them are getting the Hot Coffee sequence in a game their parents bought for them -- their parents relying on a voluntary video rating body which (it turns out) wasn't familiar with this most interesting Hot Coffee sequence."

A game that, even without the Hot Coffee mod was given an "M" rating by the ESRB.

From the ESRB website:
"MATURE
Titles rated M (Mature) have content that may be suitable for persons ages 17 and older. Titles in this category may contain intense violence, blood and gore, sexual content, and/or strong language."

No rational person would buy this game for their child, any more than they would buy a grade-schooler a DVD copy of Scarface.

The Hot Coffee mod shows some T&A roughly on par with an "R" rated movie. Only more pixelated and with a lot more intersecting entities.

[Phil]

Yes, Doherty, a LA is one of those rare cities that knows that a private ratings system that can be somewhat trusted by parents will cause a healthier, larger market over the long run as compared to an industry where the rating system is a sham. LA is doing what it is doing because it knows that a reliable, honest, transparent ratings system can be economically helpful to a great industry, and LA has special expertise in the area, leading potentially to greater economic synergy locally.

1. All entertainment industry ratings systems are shams. Every last one.

2. If your insinuation concerning LA's experience with "a reliable, honest, transparent ratings system" is supposed to refer to the MPAA, you might want to consider that the MPAA is neither reliable, honest nor transparent. The very fact that the identities of its ratings board is a secret might clue you in to that.

Well, it was a secret until now, anyway.

[Dave W.]

lol on number 2. You do got me there. However the bigest laff on this thd goes to that one Ridgley said wuz funny, powerfully funny.

[Rhywun]

Anyone capable of installing the "Hot Coffee" mod is more than adequately skilled to download all the hardcore, live-action video content they want via the internet.

Let's sue the Internet!

[Bonar Law]

"A game that, even without the Hot Coffee mod was given an "M" rating by the ESRB. . . .

"The Hot Coffee mod shows some T&A roughly on par with an 'R' rated movie. Only more pixelated and with a lot more intersecting entities."

This argument -- "there ain't much difference whether the game has the Hot Coffee sequence or not" -- might be useful if the company is arguing that the inclusion of this sequence was inadverdent. "Why would we deliberately try to smuggle a sex scene past the ESRB when it makes little if any difference in the shock value? If we *really* wanted to smuggle something past the ESRB, we'd smuggle something truly shocking -- necrophiliac bestiality, for example, not a generic sex scene like our gamers see all the time on basic cable." I might use that argument if I were them.

But what if they *did* deliberately sneak this sequence past ESRB, with the intent that at least *some* gamers would access it? Then the company should be debarred from using the "no difference" argument, since they would clearly have shown they think there's a difference. And they would be getting an ESRB rating based on a game different from what at least some gamers actually played.

I don't know if the ESRB would have given the game an M rating if the Hot Coffee had been openly included. That's not the point -- like a perjurer saying he shouldn't be punished because he didn't affect the trial's outcome.

[Bonar Law]

I mean, yeah, I agree that it's hard to see what would constitute "over the top" for a game like this.

Top 10 ways GTA can improve its shock value among its target audience of modern kids:

10) After having sex, the characters smoke cigarettes. *Philip Morris* cigarettes.

9) The male protagonist wears a suit and tie.

8) The woman he has sex with is his *wife.*

7) Protagonist turns down a proffered crack pipe, explaining: "Can't smoke that -- have to be alert -- got to get to work at the insurance company on time tomorrow."

6) Protagonist speaks in grammatical sentences.

5) Protagonist stops at red lights.

4) Protagonist stops at pedestrian crosswalks.

3) Protagonist drives on street, not sidewalk.

2) Someone jostles protagonist in crowd. Protagonist ignores it.

1) Mozard CD in protagonist's car belongs to protagonist -- and he's playing it.

[grylliade]

That would make them innocent. But if they admit installing the adult stuff, they should at least explain how they went about trying to delete it. Given that their attempts at deletion weren't successful, they should come up with a plausible account of the purportedly good-faith steps they took, and how come these steps weren't enough to remove the adult content from prying eyes.

Well, probably they did what most programmers do: they just removed the ability to access the content from the game. Because it takes waaaaaaay too much time and effort to actually go through and find and delete every little file that you end up not using in the final product, especially if you want to get the game out the door in a reasonable amount of time. This isn't uncommon practice in the videogame industry; modders are continually finding content that the programmers just didn't have time to fully implement, or fully delete. Hell, Knights of the Old Republic II: The Sith Lords is being redone extensively, including readding voice parts that weren't in the final game, and restoring the story to something close to its original course.

There are many other examples. Making a modern video game is a vast, complex undertaking, employing hundreds of programmers for years at a time. All these people generate a vast amount of code, and it'll be hard to keep track of everything. So when you remove something, you just take the path of least resistance. More than likely the programmers just realized that the Hot Coffee code wasn't really all that good, so they removed it from the final game. It wasn't there with the intent that someone would find it and activate it, though I'm sure that the programmers didn't particularly care if somebody did find it. Or if they didn't. It just was a matter of great indifference to them.

But whatever. I'm sure that, once the lawyers are involved, it won't matter one way or the other. There's blood in the water, and so what if some gamers have to give up having a GTA4, or if they pay more for that game when it comes out? They're just gamers. What's really important is the chiiiiiiiiildren. And that the nanny state takes one more step towards making sure that nothing bad ever, ever happens.

Assume these kids can download all they want off the Internet -- they still seem to think it's *also* worth their while to access the steamy "Hot Coffee" sequence in the game. Many of them are getting the Hot Coffee sequence in a game their parents bought for them -- their parents relying on a voluntary video rating body which (it turns out) wasn't familiar with this most interesting Hot Coffee sequence.

Whatever. Those poor, poor parents who bought a game rated M for their kids. And who didn't then review the game. Who could possibly know that a game that caused this much controversy when it came out would be bad for their kids? Seriously, if you buy an M-rated game for your kids, then don't pay any attention to what they do with it, you don't have the right to blame the game's maker for your incompetence. Especially when said maker didn't include the material in the finished game. Wow, kids will get around their parents' wishes? No shit? Well,okay, but how is the state involved in this again?

And, point by point:

10) After having sex, the characters smoke cigarettes. *Philip Morris* cigarettes.

Not in the game, to my knowledge.

9) The male protagonist wears a suit and tie.

You can, indeed, do this near the end of the game.

8) The woman he has sex with is his *wife.*

Well, if the protagonist were married. But he's not.

7) Protagonist turns down a proffered crack pipe, explaining: "Can't smoke that -- have to be alert -- got to get to work at the insurance company on time tomorrow."

In San Andreas, the protagonist does, indeed, turn down a proffered crack pipe. Twice, at different points. Which is actually kind of humorous: "I may be a murderer, a pimp, a thief, an assassin, whatever, but I don't do drugs. 'Cause drugs are bad, mmmmmkay?"

6) Protagonist speaks in grammatical sentences.

Protagonist speaks grammatical Black English, which is entirely appropriate. It'd be quite a crappy game if CJ spoke the Queen's English.

5) Protagonist stops at red lights.

You can do this, if you want to. The game doesn't force you to break any traffic laws, or to obey them. The cops only come after you if you hit them or hurt someone; you can break every other traffic law there is.

4) Protagonist stops at pedestrian crosswalks.

You can do this, too.

3) Protagonist drives on street, not sidewalk.

And this.

2) Someone jostles protagonist in crowd. Protagonist ignores it.

This too. You don't get points for hurting someone in the game. You might get money, but unless it's a drug dealer, it's not worth it.

1) Mozard CD in protagonist's car belongs to protagonist -- and he's playing it.

You can actually mod the game to do this. The game comes with preset stations, and on the PS2 and Xbox you can't change what they play. But on the PC, you can put whatever mp3's you want into the Music folder, and it'll play them when you drive. But that'd be, y'know, modding the game.

[Dave W.]

Bonar Law:

Since this is a statutorily based false advertising claim (inter alia), I wonder whether Take-Two's level of intent is even that relevant (at least if one assumes that "Hot Coffee" jeopardizes the M rating).

I mean, if Take-Two actively wanted for the gamers to access Hot Coffee, then that is a more egregious case, but I wouldn't be surprised if negligence (or even strict liability) is the standard for the particular statutory claims LA is pleading.

[Bonar Law]

grylliade,

Thank you for the details of how the game has the protagonist wearing ties, refusing drugs, etc. I had no idea it was so perverted!

"The game doesn't force you to break any traffic laws, or to obey them. The cops only come after you if you hit them or hurt someone; you can break every other traffic law there is."

I think I begin to see the appeal to libertarians.

[grylliade]

I think I begin to see the appeal to libertarians.

Actually, this detail of the game reinforced my committment to minarchy instead of anarchy. It's impossible to drive safely in the game, because no one else follows any traffic laws either (although they do stop at traffic lights). You'll be tooling along in the left lane, no one ahead of you, and someone will suddenly make a left turn from the right lane. Or just suddenly change lanes for no discernible reason. If people drove like they do in the real world, you'd probably be able to drive as fast as you want pretty safely, because the other drivers would be predictable. If people drove in the real world like they do in the game, no one would drive because it would be deadly. It's a pretty good lesson in the necessity of fairly-enforced rules, even if the rules are sometimes arbitrary. Predictability is much more important than absolute fairness.

Thank you for the details of how the game has the protagonist wearing ties, refusing drugs, etc. I had no idea it was so perverted!

Heh. I was just trying to point out that most of the things you thought would shock modern kids are, indeed, in the game. I've noticed that most critics of the game (or of most any game) have never played it, so many of the criticisms raised are based on their own conceptions of what's in the game rather than what is actually in the game (witness the condemnation of D&D by many fundamentalists).

San Andreas is, in many ways, a game of morality. You see what happens when you follow a twisted sense of morality, and it's the sort of thing that makes you think about your own life. Many of the things that you have to do in-game are driven by some corrupt cops blackmailing you into doing their dirty work. A lot of the other things are done because of your loyalty to your gang, or because a CIA agent blackmails you into doing his dirty work. Very few of the things you do are done because the character chooses to do them. Which isn't to say that the things CJ does are okay, but it's not just done out of pure self-aggrandizement. And if most gamers aren't self-aware enough to use this for moral reflection, well, so what? How many people watching The Godfather really come away from the movie with a greater sense of moral awareness, compared to how many come away thinking, "That was a good movie"? Video games are a form of entertainment, the same as any other.

[NickM]

Don't forget the most important aspect of this case: L.A. City Attorney Rocky Delgadillo is currently in a hotly contested Democrat Party primary for CA Attorney General, and has had some very bad recent publicity surrounding how his office handled cases against apartment owners who were also contributors.

Nick

[Stormy Dragon]

>1) Mozard CD in protagonist's car belongs to
>protagonist -- and he's playing it.

Both GTA III and the newly released GTA: Liberty City Stories have classical music stations on the radio (in GTA game, the 'soundtrack' is provided by choosing one of a number of fictitional
radio stations on your car radio), bot of which have Mozart music on them.

PS - You mispelling kind of reminded me of the scene in _The Last Action Hero_ where Ahnold tells the bad guy, played by the actor who did Saleri in _Amadeua_, that the kid in the movie never trusted him. "He said you killed Moe Zart."

[Bonar Law]

all,

Thank you for the crash course (so to speak) in the ins and outs of GTA. It was enlightening.

I had no idea the protagonist could play classical music on the radio! (And I admit "Mozart" doesn't have a "d").

"San Andreas is, in many ways, a game of morality. You see what happens when you follow a twisted sense of morality, and it's the sort of thing that makes you think about your own life. Many of the things that you have to do in-game are driven by some corrupt cops blackmailing you into doing their dirty work. A lot of the other things are done because of your loyalty to your gang, or because a CIA agent blackmails you into doing his dirty work. Very few of the things you do are done because the character chooses to do them."

I was unaware of that context.

I still think that even in a libertarian state, the government could legitimately inquire into the reason kids were able to access a part of the game which wasn't submitted to a voluntary rating board which influences the game's sales. Depending on whether this was a deliberate stunt or an honest mistake, a libertarian regime would either impose sanctions or drop the case.

I don't know what will happen in the actual, non-libertarian state of California.

[Stormy Dragon]

One other thing is that you often hear is that the game encourages you to kill cops. While you can kill the cops in the game, succeeding actually requires you avoid getting into confrontations with the cops as much as necessary.

Any prolonged confrontation with them eventually leads to you getting swarmed by dozens of squad cars, helicopters, SWAT teams, and (in extreme cases) national guard units, who will kick your character's butt all over the place.

[R C Dean]

You'll be tooling along in the left lane, no one ahead of you, and someone will suddenly make a left turn from the right lane. Or just suddenly change lanes for no discernible reason.

In Dallas, this is perfectly normal behavior. What is a little unrealistic in the game is that everyone else stops at red lights. Here in Dallas, if you don't want to be t-boned you'd better make eye contact with the drivers coming up on either side of an intersection.