Computer and Video Game Piracy – What is the Entertainment Software Association (“ESA”)

Introduction

The ESA engages in copyright infringement (intellectual property) protection and lobbying for the computer and video game industry.  They are located in Washington D.C. near capitol hill.

According to Wikipedia:

The Entertainment Software Association (ESA) is the trade association of the video game industry in the United States. It was formed in April 1994 as the Interactive Digital Software Association (IDSA) and renamed on July 16, 2003. It is based in Washington, D.C. Most of the top publishers in the gaming world (or their American subsidiaries) are members of ESA, including:

• Capcom
• Electronic Arts
• Konami
• Microsoft
• Bandai
• Namco Entertainment
• Nintendo
• Sony Interactive Entertainment
• Square Enix
• Take-Two Interactive
• Ubisoft
• Warner Bros. Interactive Entertainment
• 505 Games
• Blizzard
• Bethesda
• Softworks
• Deep Silver
• Electronic Arts
• Epic Games
• Focus
• Home Interactive
• Greybox
• GungHo Online Entertainment
• Konami
• Legends of Learning
• Level-5
• Magic Leap
• Nexon America
• Nintendo
• Nividia
• Popupgaming
• Snail Games
• Sony Interactive Entertainment
• Square
• Take-Two Interactive
• Technicolor
• SA Tencent
• THQ
• Nordic
• Triseum
• Vanitv Entertainment Solutions
• Virtuix
• Wargaming
• Xseed Games

Note:  This list may no longer be accurate so check their page for current members.

Legal issues involving video game intellectual property

Here are some of the legal issues involved in video game piracy:

1. Archival backup copies (okay to have a backup for an original game you physically possess, but cannot get a copy off a torrent website for example)
2. DMCA anti-circumvention of Technology Protection Measures (“TPM”)
3. SOPA
4. PIPA
5. Copyright infringement
6. Freedom of Speech (games protected by First Amendment, just like movies are)
7. DMCA takedown notices to ISP
9. Software game ratings (ESRB)

The ESA legal issues page talks about some of the first amendment cases and points out:

• “The U.S. District Court for the Northern District of Illinois granted a permanent injunction against the Chicago Transit Authority's attempt to ban certain computer and video game advertisements.

• The U.S. District Court for the Western District of Oklahoma issued a permanent injunction against that state's unconstitutional attempt at regulating computer and video games, ruling that video games are entitled to protection under the First Amendment.

• The U.S. District Court for the Middle District of Louisiana ordered a permanent injunction to block implementation of a Louisiana statute seeking to ban the sale of violent video games to minors, acknowledging previous cases that found that video games are protected free speech.

• The U.S. District Court for the District of Minnesota issued a permanent injunction to halt implementation of a Minnesota law which sought to penalize minors for the purchase or rental of M- or AO-rated games, rejecting the science presented by the state purporting to show a link between violent games and behavior.

• The U.S. District Court for the Eastern District of Michigan issued a permanent injunction halting the implementation of a Michigan bill, which sought to ban violent video game sales to minors.

• The U.S. District Court for the Northern District of Illinois enjoined the Illinois Violent Video Games Law and Sexually Explicit Video Games Law, ruling that the state has failed to present substantial evidence showing that playing violent video games cause minors to have aggressive feelings or engage in aggressive behavior.”

What was SOPA?

According to wikipedia:

“The Stop Online Piracy Act (SOPA) was a controversial United States bill introduced by U.S. Representative Lamar S. Smith (R-TX) to expand the ability of U.S. law enforcement to combat online copyright infringement and online trafficking in counterfeit goods. Provisions included the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and web search engines from linking to the websites, and court orders requiring Internet service providers to block access to the websites. The proposed law would have expanded existing criminal laws to include unauthorized streaming of copyrighted content, imposing a maximum penalty of five years in prison.”

The law did not pass.

DMCA notices to ISP

One of the measures ESA gets involved in is sending DMCA “take down” notices to persons believed to be downloading pirated games.  The DMCA notice may serve as a warning, and repeated attempts at infringement or illegal circumvention of technology protection measures could result in a federal court lawsuit being filed.

Brown v. EMA case

This was an important first amendment case that held that the State of California could not prohibit the sale of violent video games to minors.  You can listen to the case on the Oyez supreme court website.  According to the Oyez website:

“The Supreme Court affirmed the lower court order in an opinion by Justice Antonin Scalia. “Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.” Justice Samuel Alito concurred in judgment, joined by Chief Justice John Roberts. Alito noted that he disagreed “with the approach taken in the Court's opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology.”

ESA in the news

1. 

2.   ESA nails 5 million for copyright infringement

3.  Entertainment Software Association v. BlagoJevich (Illinois violent video game law at issue)

4.  Entertainment Software Assn v. Foti (Louisiana violent video game law at issue)

5. ESA taking issue with Oklahoma “inappropriate violence” law

Contact a copyright & entertainment infringement law firm

If you or your company needs help with an infringement case involving the DMCA, free speech, internet law, torrent downloads, or other entertainment technology contact us to discuss at (877) 276-5084.  We are able to offer low flat rate fees for most non-litigation cases.