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April 2008 Update
The following summarizes key video government affairs activities during April of the Entertainment Merchants Association. Please contact me if you have any questions or need further information.
Arizona Civil Liability Bill
EMA helped defeat a proposed Arizona bill that would have allowed the victims of violent crimes to sue the retailers of DVDs, video games, and other forms of media for injuries the victims suffer.
Arizona House Bill 2660 would have imposed liability on an entertainment retailer for the criminal acts of a customer if the customer committed a violent crime and: the entertainment sold by the retailer "incites" the commission of a serious crime; the entertainment was "a cause" of the crime; and the retailer "knew of a significant risk that the material would substantially … encourage" the commission of a crime. The bill was approved by the House on a 36-23 vote in March.
EMA opposed the measure because it would encourage meritless lawsuits against retailers and retailers could not possibly know whether a particular video or video game presents a "significant risk" that it would "substantially encourage" criminal activity.
EMA was scheduled to testify against the bill on April 7. In light of the strong opposition to the measure expressed by EMA and many other organizations, however, the committee – recognizing the danger presented by the bill – cut short testimony and voted the measure down.
Utah Secondhand Goods Bill
EMA contacted the Utah Division of Consumer Protection after it came to our attention that the division was contacting retailer in the state that were offering previously viewed rental titles for sale and indicating that those businesses may need to register as a secondhand goods dealer. The division's action was a result of amendments made last year to Utah's secondhand goods law. EMA explained to the division that we have been repeatedly assured that the sponsor and primary proponents of the 2007 amendments did not intend for the revised secondhand goods law to cover sales of excess inventory from video and video game rental stock, and they do not believe that it does.
Separately, EMA requested information on how to file for an exemption from the law for trade-ins for store credit. Under additional amendments to the law passed earlier this year, the state is supposed to provide an administrative procedure for exempting certain transactions from coverage under the act.
ESA v. Swanson (MN Video Game Law)
EMA and the Entertainment Software Association filed a brief with the U.S. Court of Appeals for the Eighth Circuit that encourages the court to decline the state of Minnesota's request for a rehearing on its appeal of a lower court decision that found the state's video game restriction law to be unconstitutional. The law would impose a $25 civil penalty on minors under the age of the 17 who rent or purchase video games rated "M" ("Mature") or "AO" ("Adults Only") by the Entertainment Software Rating Board.
In March, a panel of the appeals court upheld the lower court ruling. The state has asked that the panel's ruling be revisited. EMA and ESA informed the court that a rehearing is unnecessary because, although the panel may have misstated the legal standard to be applied in the case, the lower court's decision would still be upheld under the correct standard and there were other, independent grounds for finding the statute unconstitutional.
Indiana "Adult Product" Registration Law
EMA has agreed to be a co-plaintiff in a challenge to a newly enacted Indiana law (House Bill 1042) that will require businesses and their employees that intend to sell or offer for sale any material that is legally "harmful for minors" to register with the state, provide a statement detailing the types of materials that the business intends to sell or offer for sale, and pay a $250 fee. (Material "harmful to minors" is sexually oriented material that may be sold to adults, but not to minors.) Businesses that offer such material as of June 30, 2008 are exempted from the registration requirement, so long as they remain in the same location.
EMA is joining the suit because the law would impact our members who open new establishments in Indiana (or relocate an existing one) and carry even a small number of covered materials, and the employees of those businesses. We are also concerned that, if unchallenged, the law could spread to other jurisdictions.
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