Alright… Zero Punctuation is one of my guilty little pleasures and I’ve been a member of the Videogame Voters (“Grassroots”) Network since I first heard about it in 2007. I think whole-heartedly that games are art (so much so that I no longer even pay attention to the argument because it has descended into absurdity) and as such should be protected under the first amendment. I agree wholeheartedly with what Yahtzee is saying, that indeed the anti-fun-brigade is throwing poop at videogames. But, unfortunately, and I’ve written about this and talked about it at conferences before. As the game industry has constructed itself thus far, it isn’t the same as books, film, television, radio, newspapers, etc. That isn’t to say games don’t have that potential, but that the game industry consistently shoots itself in the foot making games look more like “commercial speech” (speech for profit) over critical social and political commentary, which is what the whole first amendment is about.
I’m not even saying that games don’t do this already. Clearly, one need to only look at a game studio like Molleindustria or Persuasive Games or Brenda Brathwaite‘s installation games like Train and Siochan Leat to see the truth of this. But, this is not what the game industry predominately produces and as such is not how it is perceived by the general public. Now, it is true that major media does not predominantly produce this either, but it is percieved to by the “Lay Man” as Yahtzee calls them.
The trouble is this. I can create film, books, television, radio, newsletters, etc, critical of social or political issues and release that information to the broader public. Local movie theaters, public television (which, yes, is on the decline), public radio (which, yes is on the decline), printing presses, and numerous other venues await me to speak upon. In games, the situation is quite different. I can release my game online, on the Internet. These are not the games that legislation is attacking. It is attacking major videogame manufacturers, who I cannot publish with. If game companies were more open about their development tools and communities (which Microsoft has attempted to be, and even Apple has pushed this direction as well, although that is arguable until recent App Store changes), then I think the argument would hold, that mainstream videogames are indeed speech, and as such should be protected.
But I can’t speak on my Wii. I can’t speak on my DS, my PS3, my PSP, or even my bloody NES. It is largely a broadcast medium; a commercial medium. So while I deeply and firmly believe that games should be protected and current efforts, like those in California, are unconstitutional, the game industry is its own worst enemy in this respect with its tight control over content.
Of course, one might argue that the tight control is necessary for the functioning of the ESA/ESRB’s ratings system. True. But the foundational software development platforms need not be as tightly controlled. Major distribution channels can be governed, much like Apple’s much lamented, “walled garden,” which the videogame industry invented. At the same time, as someone who speaks, I can release my source-code to the world and anyone (with requisite knowledge) could play the game. There is a “public access” path to the mainstream. Interestingly enough, even though circumvention of an “mobile phone’s” copy protection methods to install unauthorized software is now legal despite the DMCA, the videogame industry has managed to exempt itself from this. The R4 and other mod-chips that can be used for copyright violation can also be used to create unauthorized games.
Long term, it is about raising awareness that games are bigger than Sony, Microsoft, Nintendo, and now Apple. Games are a medium for speech and rhetoric. At the same time the game industry must also perhaps begin making changes that speak towards the importance of the medium rather than strictly bottom lines.