HHR New Media, Entertainment and Technology Group

Over the last year, we’ve been following the recent trends in Europe regarding “three strikes” legislation, where end-users may be subject to sanction by their ISPs for repeated acts of copyright infringement.  Following passage of the first such law in France last fall, the United Kingdom followed suit in early 2010 with passage of the Digital Economy Act.  While it is too early to say with certainty whether the laws will achieve their stated goal of deterring and ultimately reducing infringement, the debate surrounding these laws and early experience under their enforcement schemes provides insight into whether or not “deputizing” ISPs to police piracy will become more prevalent or whether yet another approach will need to be devised to protect content owners. Continue Reading »

The Ninth Circuit will issue an opinion addressing the constitutionality of content-based regulation on the sale and rental of violent video games in the next few months.  Since policymakers are expressing growing concerns over the possible effects of violent video games on the psychological and emotional well-being of children, this decision is expected to play an important role in determining what boundaries, if any, constitute permissible regulation of video game content.

The statute at issue is a 2005 California law that would prevent minors from renting or purchasing violent video games that depict serious injury to human beings in a manner that is “especially heinous, cruel, or depraved.”  Retailers who rent or sell such games in violation of the act would face a maximum fine of $1,000 for each violation.

Shortly after this law was enacted, its constitutionality was challenged by the Video Software Dealers Association and the Entertainment Software Association, two trade associations that represent companies in the video game industry.  The groups argued that video games are protected speech under the First Amendment and that the act constituted an impermissible restriction on such speech. The district court agreed with these arguments, holding that the law was unconstitutional and granting a permanent injunction against its enforcement.  Continue Reading »