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Killing Games: A Look At German Videogame Legislation

Killing Games: A Look At German Videogame Legislation

Over the years, game designers and publishers in the U.S. have become used to stories of game banning in Germany. However, in 1998, the German USK (a independent organization that rates computer games prior to their publication) declined to assign an "18+" rating to Quake 2, and subsequently the game's publisher, Activision, decided not to release Quake 2 through German retail channels. The game was subsequently put on the Index – a list of products that cannot be sold or marketed to minors.

quake_box.gif There is a rough, if incomplete, understanding of how Germany enforces its parental guidance system, also known as the Index. Because of this lack of understanding, most people overlooked the significance of the Quake 2 incident. Neither the Index nor parental guidance ratings were at the heart of the matter in this case – Quake 2 was to become subject to German criminal laws, just like Mortal Kombat. And this type of action against games might become more common in the future. Soon, the impact of criminal laws on the first-person shooter (FPS) game market in Germany might actually outweigh that of the Index.

BPS and the Index

Germany has a federal authority, the "Bundesprüfstelle für jugendgefährdende Schriften", or BPS (see Sidebar 1), that was set up to protect minors from publications that are considered harmful, (i.e., prone to cause "confusion or disorientation with respect to social behavior or ethics"). It was formed based on the school of thought that observing violence leads to imitation, and that exposure to descriptions or representations of unlawful, violent or aberrant behavior will initiate, contribute to, or cause, similar behavior patterns in adolescents.

The BPS has at its disposal a single means of enforcement, the Index. Putting a book, video tape, or game on the Index restricts advertising and sales – basically, the item in question has to be kept out of sight from minors, to make sure that, ideally, minors don't even know of its existence. The Index is explicitly not meant to censor items from adults, and, in theory, access to material put on the Index should still be available to adults. Furthermore, the right of parents to choose to expose their own offspring to material on the Index is not restricted by law. In theory, the Index equals an 18+ rating, with added precautions to keep the product out of children's hands. In practice, however, the additional costs and the overall hassle involved led to many publications being taken out of the market following a BPS decision - a censorship by effect if not by name.

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The somewhat makeshift procedures lead to sometimes inconsistent and confusing decisions, and the workload adds to that. For example, the request to put Wolfenstein 3D on the Index was filed in 1992, but the decision was taken only in 1994. A decision about its successor, Spear of Destiny, was not made by the end of 1997, long after it was released.

Further, the BPS often neglected to inform the publisher or author about problems related to a title. Sometimes it found itself unable to simply determine the address of a publisher. Decisions taken without notifying a German representative of the game, or in the absence of such an entity, the original publisher, in fact contradicts the right to be present and be heard at the BPS ruling. German courts have rejected BPS decisions following appeals in such cases. Additionally, an author or publisher has every right to challenge a BPS decision in court. To name a particularly interesting example, GT Interactive in 1997 successfully appealed a 1984 decision which put Battlezone on the Index. However, challenges to BPS decisions are rarely undertaken, and they're not always successful.


The USK's Voluntary Ratings

The BPS is only part of the story, though. It is complemented by independent organizations that implement voluntary self controls, such as the ASK (which handles arcade games), FSF (TV), FSK (video, movies), and finally the "Unterhaltungssoftware Selbstkontrolle", USK, which handles entertainment software.

The USK is a non-profit service serving the publishers and entertainment industry. Upon request, it determines a recommended rating for a given product. Costs are covered by fees on a per-case basis (which can amount to a good US$3,000 depending on the evaluations requested, and the details of the product). The USK came into being after an agreement in 1994 between the German organization of entertainment software publishers ("Verband der Unterhaltungs-Software Deutschland", VUD), and the FJS, an independent non-profit organization founded in 1990 that dedicates itself to youth work and which is supported by federal and federal state funding. The USK is supposed to ensure that no entertainment software is published in Germany that violates human rights, the German constitution, or the values these protect. It also tries to protect minors against products that fall within the scope of the law the BPS enforces, by assigning a rating that recommends a minimum player's age.

There is no institutional connection between BPS and USK, but obviously the whole concept of the USK rating system is an attempt to preempt BPS decisions by assigning PG ratings. After all, a 14+ rating only makes sense if the BPS decides not to put the product on the Index. The Index and the underlying law do not handle any age requirements except 18+, at which a German citizen is legally adult. These voluntary ratings thus derive their legitimacy from the omission of a more fine-grained law, and from the existence of an independent organization that strives to follow the same guidelines as the BPS.

dark_forces_box.jpg However, the USK ratings do not prevent a given product from being put on the Index. It is a difficult and, judging from the outside, presumably a subtle process by which the USK has to implement cautious and conservative ratings to preserve credibility of the process with the BSP. The overall objective of the VUD is to maximize sales, the duty of the BPS is the unconditional protection of minors, and the USK attempts to balance these interests in a reasonable way, by allowing the BPS to focus on those products that don't even apply for USK rating. A USK rating of "18+ only" is a borderline case, as it effectively means that the game is considered harmful for all minors. If the BPS didn't put such a product on the Index, it would not only imply that publishers and distributors can be trusted to enforce all sales restrictions, but also that public advertising does not contribute to minors being exposed to the product. Obviously, this is a rather unlikely stance to take. In the case of Dark Forces, the USK ruling of "18+ only" (given in March 1995) was followed by a BPS ruling (in September 1995) that placed the game firmly on the Index. Applying for an "18+" rating is therefore a slightly paradoxical notion.

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Against this backdrop, the USK's declining to assign an "18+" rating to Quake 2 makes a more powerful statement: that id Software's game is in violation of the fundamental values of Germany society. Activision did not appeal the USK decision, nor did the company try to introduce Quake 2 to the German market without a USK-assigned rating. With or without a USK rating, Quake 2 would undoubtedly have ended up on the Index, just like Wolfenstein 3D, Doom, and Quake.

Blunting the Blade

Despite the huge impact that the prohibition of advertising used to have for some books and other products, the Index is indeed in danger of becoming a blunted blade. The Internet is only the most recent, albeit most lasting, blow dealt to the BPS. The BPS has always had trouble enforcing restrictions on advertising, as it has been outpaced by distribution channels that specialize in selling controversial products. It's relatively easy to get banned games across the border by going through mail-order game distributors and, nowadays, by purchasing shareware games online. These methods diminish the Index' impact on sales. Germans are now used to relying on suppliers in other European countries for their games. In the age of the web, national advertising restrictions rapidly become meaningless.

Similarly, the BPS has no authority whatsoever regarding adults, and the law the BPS implements is explicitly aimed at minors. This means that parental negligence (as well as parental discretion) can get in the way of what the BPS considers its task. Seeing its leverage vanish in many areas, be it television or electronic entertainment, the BPS has sought both extensions of its mandate, and assistance from outside.


Section 131: Outlawing Games

There is a second body of laws relevant to the USK, one that knows no exception by age: criminal law, and in particular, paragraph StGB 131 (see Sidebar 2). It is not really up to the BPS to enforce these laws, but the same youth offices that request a BPS ruling can initiate public prosecution, and have done so in the past.

Like the law the BPS is based upon, the criminal law in question originates in uncomfortably recent German history. Its purpose is to prevent public displays glorifying violence. The preceding section of criminal law, section 130, prohibits the public display of Nazi symbols. The idea is to prevent exploitation and glorification of the atrocities of Third Reich, to fend off the display of indecencies and inhuman acts in general, and to uphold the values that post-war German society is built upon.

Prosecution of a game that violates criminal laws can be initiated by anybody willing to file a complaint. There have been incidents with public prosecutors and police rashly taking action against various print publication with little or no evidence, and even in those cases where court decisions finally restrained them, significant damage to publishers has been done. One notable recent incident was the confiscation of an Art Spiegelman drawing from the comic "Maus" as alleged Nazi-propaganda, followed by police searching bookshops all over Germany. Public media uproar does not prevent such incidents. In reality, few people take notice, effectively paving the way for inconsistent, random censorship, and even private vendettas.

How does this affect games? Contrary to what some might believe, section 130 was not relevant to Wolfenstein 3D (see Sidebar 3), despite the abundance of Nazi symbols which, to German eyes, qualified as a superficial commercial exploitation. No, Wolfenstein 3D and Mortal Kombat share the dubious honor of being the only two U.S. games confiscated in Germany up until 1995 based on violations of section 131, and they are the only two among the nine games on that list that are genuine games – not extremist propaganda in freeware disguise. So Section 131 and its prohibition of "glorification of violence" are sometimes applied in full force, and publishers might be affected more by this law in the future.


Precedence: Mortal Kombat

mk_logo.jpg In Germany, Mortal Kombat in all its various incarnations has been confiscated by court order, presumably doing significant financial damage to the retailers and publishers involved. Similar rulings targeted Wolfenstein 3D, which, however, the court considered to be less vulnerable to such measures due to its shareware registration distribution model. In both cases, additional penalties (including jail) for distributors were a possibility.

The court decision described Mortal Kombat in quite some detail (see Sidebar 4). It cited the highly detailed "one-on-one" combat, with the inevitable "fight to death" outcome and all its explicit gore, all of which was deemed as "glorifying violence" again and again in German courts. And in some sense, who would seriously debate this? To be fair, a Disney or Warner Brothers cartoon might qualify just as well. But in the case of Mortal Kombat, the game was doomed.

A key issue for Mortal Kombat was its "human opponents". Yet Doom, which serves as an example of outstandingly glorious violence, was never mentioned in court this way, despite its possessed former humans which the player was forced to kill. Quake 2, on the other hand, with its cyborg aliens, was thought to foster violence against humans. It has often been claimed that German law solely concerns itself with violence against entities that are recognizable as humans: green blood and deformed bodies supposedly make a difference. But these loopholes demonstrates the overall inconsistency of the process. Take the 1995 USK ruling on LucasArts' Dark Forces, which stated that smashing opponents in flashes of light or disintegrating them to dust is no less bloody, despite the absence of reddish pixels. The USK found fault with the with the game's destruction of human-like targets. Furthermore, the ruling pointed out that the game forces the player to kill – it leaves no alternatives to the problems faced – and that the game requires reflex killing (that is, fast and without consideration). LucasArts' claim that the weapons were too abstract and futuristic to be linked to real weapons was refuted, and the judgement stated that the "display of violence is not defined by the type of weaponry used, but by the conflict resolution offered". The USK also took aim at the game for not providing a clear distinction between good and evil, discarding the notion of "fighting for a good cause" as a superficial disguise applied to cover an automatism of mass murder. So much for the Force. Consequently, the BPS put the "18+ only" game on the Index later.

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While some kind of assessment of games is probably necessary, the BPS and USK rulings are often arbitrary. The USK list of games deemed suitable for children and minors in 1995 rated Master Of Orion as "12+", but in my personal opinion, this game is easily one of the most horrible and depressing games I have ever played, since every turn it pressures players to trigger multiple nuclear holocausts to entire populations. It is also hard to understand why many war games receive less severe ratings from the USK, when war games use the same impressive explosions the USK considered objectionable in Dark Forces. It's just that those explosions destroy tanks, helicopters, or jet fighters manned by villains the player never sees. (Note that the aforementioned retraction of the Battlezone decision adds to the ratings confusion. The ruling stated that the lack of visual realism in the game's 1984 graphics made further harmful influence of such a game very unlikely.)

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Ignoring for a moment the double standards as well as the odd inconsistencies of the German game rating systems, the following criteria can be used to determine whether a game will be found offensive by the BPS or USK:

  • Ample violence
  • Elaborate violence
  • Graphically impressive
  • Anatomical correctness (foremost, but not limited to, the red variety of blood)
  • Repeated use of violence
  • Enforced use of violence
  • Short time span between perception and decision
  • Absence of other, non-violent response options
  • Encouragement for using violence
  • Rewards for having successfully applied violence.

But there is territory left to explore in German law, and Quake 3: Arena and its siblings will boldly go where Doom went unnoticed: shooting at human beings "for real".


Precedence: PaintBall

Red blood, green blood, no blood – ultimately, it won't matter. While online multiplayer games have been spared so far, location-based entertainment (LBE) already came under public scrutiny five years ago. In 1994, authorities shut down laserdromes in several locations, on the grounds that games which simulate the hunting and killing of other human beings endanger public order and peace and violate fundamental values of German society (see Sidebar 5). Simply put, the authorities felt that "imitation leads to depravation". According to some German court rulings, passively observing a violent movie is considered less harmful than entering a building armed with a toy gun that shoots lasers beams at fellow participants in the human adventure. Having fun, presumably, makes things worse.

Those who backed the anti-LBE cases apparently went too far, however, and some of these rulings did not last long. Attempts to make a case based on alleged violations of the first article (Artikel 1 Grundgesetz) of the German constitution, which guarantees the unalienable dignity of human life as the basis of all human rights, were struck down. Other arguments proposed to shut these LBE businesses down based on the article of the constitution that restricts weapons training and practice to military and law enforcement personnel (Artikel 12a,26, GG). Similar court cases occurred in other parts of the country, and politicians from both major German parties jointly initiated legislation to ban commercial enterprises and privately organized non-profit (paintball-style) activities. In effect, the politicians ended all "hunting games" on German soil.

With paintball and comparable war games considered to be in gross violation of the ethical and moral foundations of German society, there is now ample legal ammunition to be used against online gaming, too. Not only are the single-player modes of Quake 3: Arena, Unreal Tournament and similar products mimicking Mortal Kombat, what's potentially more offensive is that their online deathmatches feature human-controlled opponents. Opponents that respond to taunt and insult, but which remain conveniently faceless, and can be mercilessly shot, maimed and gibbed over and over again, in an overwhelmingly detailed display of blood and intestines. Powered by hardware-accelerated 3D, sketchy violence hardly more convincing then your average Tom & Jerry cartoon is seriously striving to approach big-screen realism. Whether red or green blood, whether player avatars are deformed by oversized muscles or breasts, whether the characters are cyborg or not – in the end, it all comes down to "kill thy neighbor".

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German authorities have not yet made that connection however. So far, there has been little need to. In Germany, the cost of local calls and related online expenses have kept the reasonably wealthy, well-equipped gaming community from participating in online deathmatches to a large degree. A few cyber cafes are now exploring the legal and licensing issues of pay-per-play on a LAN. Soon the situation might change, and whether legal initiatives to prohibit laserdromes and paintball succeed or not, confiscation of such games might well happen, given the precedent set in 1995.

The BPS is slowly but surely losing ground in the Internet age, as are many other agencies. Evolving distribution and advertising methods for computer games are weakening the BPS's power. It is becoming futile to try to prohibit client/server games that use server-side game logic, or attempting to ban automated resource downloads from servers outside the country. In some cases, U.S. game companies have supplied advice about circumventing localization-based content control on the Internet, often along with the reviews and screenshots comparing the "German edition" of a game to the original.

In situations like these, the BPS is likely to rely on the much more powerful legal armaments provided by criminal law, since the criminal laws so closely parallel the categorizations, criteria, and arguments used by the BPS. The BPS is also closely following the rulings on LBE. To fulfill what it considers its duty, the BPS will encourage public prosecution in those cases where its own means fail.

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The ultimate outcome might well be that the purchase and use of an online deathmatch game is prohibited for "children of all ages" in Germany, simply because they are first-person multiplayer shooters. Whether enforcement of these rulings is possible, practical, or even desirable, is a different question. The inherent fuzziness and inconsistency in the evaluation process, along with the scarce resources of the agencies involved, makes determining a game's fate very difficult. Each ruling that goes unopposed by the publisher, however, adds to the list of precedents that can be referenced in future cases. Once a developer, company, or title trademark has made it onto the Index, it becomes more difficult to spare successive products from the same fate.

Germany can serve as an example of the pros and cons of government imposed regulations on games. The developments in the U.S. following the shooting in Littleton, Colorado, as well as the passage of the Communications Decency Act in 1996 illustrate that the legal conditions in the U.S. market might change – perhaps quickly and possibly in incomprehensible ways. Large-scale retailers and distribution chains, and even publishing companies, are apt to develop their own makeshift regulations in anticipation of changes to the political and legal landscape. Publishers may also opt for "curtains" of all kinds between game content and public perception (as seen with the E3 showings of Soldier of Fortune) – a short-sighted approach to the issue, indeed. As such, the past and current situation in Germany might well serve as a case study of things to come.

Bernd Kreimeier is a writer, coder and physicist who has been DOOMed to pursue immersive game technology topics since early 1994. You can share your secrets with him at [email protected].


Sidebar 1: What is the BPS?

The German federal "Bundesprüfstelle für jugendgefährdende Schriften" (BPS) is responsible for policing video and computer game content, among other forms of media. The BPS has also made repeated attempts to exert control of cinema, and broadcast and cable television, most of which seem to have failed in courts. The BPS, while associated with the federal ministry of health, is an independent entity with its own budget, and by law exempt from any outside directions – a position unique within the German federal bureaucracy, originating in the initial setup of the authority in post-war Germany under the mandate of the western allied forces, and due to the sensitive nature of any kind of censorship.

The BPS (the numbers given here describe the situation before East Germany became part of the Federal Republic of Germany, and might have changed) maintains a board of 27 representatives elected by the governments of the German federal states, and 38 representatives elected by the ministry of health. It follows proposals from professional organizations in arts, literature, book selling, publishing, youth organizations, teaching, as well as from the two predominant Christian churches and the Jewish synagogue. The BPS has two boards of 12 people each, which conduct a court-like trial in the process of determining whether a given publication should be placed on the Index (decisions are based on a majority vote), and a board of three people for so-called "emergency decisions" (which require unanimous vote). These trials are not open to the public, but the defendants are entitled to be present or represented, and the chairman of the board has the right to admit further attendants of any kind as considered useful.

The BPS has sole authority to implement the "Gesetz über die Verbreitung jugendgefährdender Schriften" (GjS), the law that defines what kind of publication is considered harmful to minors.

The boards act only upon the request of authorized sources (the ministry itself and all the various youth offices in the federal states down to the local offices). The board has to decide whether a given publication is deemed likely to:

  • Incite violence or crimes. Textbook examples include protagonists that solve conflicts solely by applying violence (especially if they discard law and order in the process) and indulging in self-applied justice throughout (with the view that the ends justify the means). This yardstick is often applied to games that brutalize the player (i.e., those in which killing opponents is inherent part of the game).
  • Glorify the Nazi reign, or play down Nazi crimes. Prime among these are publications that debate the existence of concentration camps and/or the number of Jewish people killed by Nazi Germany.
  • Incite racism or intolerance, particularly against ethnic groups or religious beliefs. An often quoted example is anti-Semitism combined with denial historic facts about the holocaust.
  • Glorify drug abuse, or play down consequences of drug abuse.
  • Ethically disorient or confuse minors with respect to sexuality (i.e., pornography).
  • Discriminate against women (e.g., by presenting women as mere objects or in degrading sexual contexts).
  • Glorify war, or play down the consequences of war.

The decision to put a publication on the Index is announced in print in the federal gazette, and can be appealed in regular courts through all instances. Following the announcement, the following restrictions apply:

  • The product may not be offered, lent, handed over, nor made accessible to minors; nor be presented, exposed or previewed in a place accessible to minors.
  • Certain channels of retail distribution (supplying mail order businesses, door-to-door sales, and so on) are prohibited entirely (presumably due to considerations of reliability, lack of sales records, etc.).
  • Public advertising, announcements, or reviews are prohibited. In particular, the fact that the product has been, or might be, put on the Index is not to be mentioned.
  • Shops which sell or rent out to the public, to which minors have access, have to keep and handle such products out of sight (e.g., in separate rooms to which minors are denied access).

Pornography and racist publications are subject to these restrictions by default, without having to be put on the Index. Publishers, authors, and salespeople are required to make themselves knowledgeable about both the regulations and the current list of products subject to these restrictions, under the penalty of law (which includes jail).


Sidebar 2: Criminal Law

The GjS legal regulationsare duplicated in German criminal law, and apply to adults. Most notably, Section 131 StGB imposes penalties for distributing publications that glorify violence; Section 130 StGB covers racism and Nazi propaganda; and Section 184 deals with child pornography, pornography involving animals, and pornography involving violence.

A number of freeware and shareware computer games (mostly originating in Germany or other parts of Europe) have been created to spread Nazi propaganda and racism. The list of games confiscated under Section 131 is dominated by this type of software (of the nine games that had been confiscated up until 1995, seven fell into this category). It is noteworthy that the German ministry of the interior in 1994 financed the development of its own freeware game opposing fascism and racism, to counter the freeware offers from extremist, right-wing organizations. Such developments have always attracted public attention in Germany, sometimes blown way out of proportion to the actual size of the problem.

Pornography in games, and pornography marketed as games have yet to become an issue, thus Section 184 is not yet relevant. However, the combination of violence and sex, as shown superficially in Sin, might become a front-page issue some day. The pornography industry is bound to discover interactive technology in the age of motion capture and multi-resolution modeling, and some games might find themselves thrown into a bin adjacent to hardcore pornography.

Either way, with the court decisions to confiscate various releases of Wolfenstein 3D and Mortal Kombat in 1994 and 1995 under Section 131 regulations, a precedent has been set. The glorification of violence by some games, as well as games that downplay the effects of violence (in particular violence against opponents of human-like appearance), are reason to prohibit distribution to adults in Germany. The casual boldness with which id Software exploited Nazi symbols in Wolfenstein 3D was mentioned in German rulings and might have influenced that decision, but it was the violent content combined with a new technology that caught the authorities' attention in the first place.

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It is noteworthy that Section 131 prohibits sales and other means of distribution and exposure within Germany, yet it does not penalize individuals for possession of such products. This is in contrast to German laws surrounding child pornography, for example (a 1993 amendment of criminal law explicitly sets penalties for possession of child pornography). Is it illegal to own a copy of Mortal Kombat in Germany? Not in the strict sense of a punishable offense. Yet as the game's content is considered to be in contradiction to law, order and constitution, it can hardly be called legal either. The authorities, given the opportunity, might well feel obliged to confiscate a given copy. An offender would not have to face additional consequences, though, unless a case could be made against the individual for participating in the distribution of the game (including sharing the game, selling it second-hand, or handing out copies of shareware or pirated software).


Sidebar 3: Wolfenstein 3D on the Index

wolf3d.jpg On January 12, 1994, the BPS put Wolfenstein 3D on the Index. "The essence of the game is the realistically staged, relentless killing of human individuals," the decision stated. According to the decision, the game is prone to be ethically disorienting. Particularly, it leads the player to practice deliberate killing: "The logic inherent to the software ties the player into an automated system of order and obedience, with reflexive, unhesitating killing of countless human opponents as its essential core. Neither possibilities of evasion nor similarly nonaggressive solutions to conflict do exist. [..] Successful completion of the game is in any case tied to the liquidation of countless opponents, the event of which is amplified by elaborate simulation of bloodily shredded bodies." The BPS emphasizes the realism of the acts of killing, and that weapons and ammunition can be clearly identified and related to items in the real world. Due to the game's intensity and demands on the player's concentration and coordination, "a critical, conscious evaluation of the aggressive content and context of the game" is deemed impossible. The BPS states that "such game scenarios block the adequate processing of irrational aggressive and destructive impulses. Children and minors have to learn to control aggression, destructive frenzies, and rage." According to the BPS, primitive imagery allowing for undifferentiated externalization of such aggressive impulses, or even rewarding them, is apt to harm people. The game forces the player to "remove human obstacles in reflex, almost instinctively. In this playful practice of killing lies the danger of lowering the inhibitions that prevent acts of killing".

The ruling on Wolfenstein 3D can be considered a typical example of BPS decisions on first-person shooters of any kind, with possible variations in the assessments of what qualifies as a "human-like opponent" or constitutes a "realistic" representation. However, Wolfenstein 3D is unique with respect to its imagery: it makes excessive use of Nazi symbols and it exploits German history. While this might not be of significance outside of Germany, it could not possibly be ignored by the BPS, and the above description of the game ("an automated system of order and obedience, with reflexive, unhesitating killing of countless human opponents") wolf3d2.jpg carries a good deal of unintended irony, given the facts of German history. The BPS did not agree that the imagery and the game's minimal back story could serve to legitimize the game's logic of killing without exception. It suggests an opposite effect, actually. Due to the ubiquitous Nazi symbolism in the game, players find themselves unable to decide "whether the steady presence of these visual and acoustic symbols has to be deemed suitable to further extremist patterns of behavior", a viewpoint that might well be incomprehensible outside Germany. But the BPS decision was inevitable, due to "the glorification of the idea of self administered justice inherent to the game", and the positive value assigned to lurid scenarios of killing. The subsequent court ruling to confiscate Wolfenstein 3D presumably followed this assessment. Wolfenstein 3D might just as well have been confiscated in the absence of any Nazi symbols or names.


Sidebar 4: The Confiscation of Mortal Kombat

In 1994 and 1995, several court decisions ruled that Acclaim Entertainment's Mortal Kombat, Mortal Kombat II and other sequels and releases were to be confiscated, as these games were in violation of Section 131 of German criminal law (again, which targets games that glorify and trivialize violence). The games were already on the Index. Confiscation was ordered, and it affected all individuals and companies participating in distribution of the products. A similar decision in 1997 affected Mortal Kombat 3 for the Sony Playstation and Sega Genesis, and in that case the facilities that manufactured the games were also confiscated.

The BPS decision to put Mortal Kombat II for SNES on the Index called the game "an attempt to establish games traditionally found in arcades and not accessible to minors, in children's rooms." This aspect is irrelevant to the decision to confiscate the game, though: in a strict sense, these rulings imply that identical arcade games available to adults are also illegal.

The BPS rulings and the court decisions concur in their description and assessment of the game. They stated that "Successful completion of the game requires the incessant application of bodily harm. The attacks initiated by the player are rewarded by the computer ... e.g. by a digital voice. The characters in the game are embodiments of perfected, brutal and unfair acts of combat. The game suggests to the player that violence against other people is positive, accepting the opponent's death." In addition to the glorification of violence, the game was found downplay the effects of violence as well, as the characters "do not lose their powers, even if repeatedly and headily hit by their opponents [...] previous injuries leave no traces."

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Of particular significance is that "the software leaves no option to [...] solve the conflict by other means aside from brutal violence." One court concluded in November 1994 that the "display of violence as defined by Section 131 can be found if not in every single hit, then at least in every deadly blow, as the killing of the opponent is shown in immediate visuals and sounds." In February 1995, the same court observed the following about its successor, Mortal Kombat II: "In these sequences the death of the opponent is actually celebrated. Particular care has been applied to the representation of the varieties of murder."

These court rulings also refer to the rapid pace of the game, and the necessity to kill – criticisms that have been leveled at many first-person shooters by the BPS. However, just as the BPS didn't pay particular attention to the multiplayer aspects of Doom and Quake, the two-player setup for Mortal Kombat was not singled out as being of importance. The connection between "man hunts" in laserdromes and online deathmatches has yet to be made.


Sidebar 5: "Quasar" Laserdromes and German Courts

An attempt to open up an LBE installation based on the action laser game "Quasar" was prohibited by police order on grounds that it presented imminent danger to order and public security. The higher administrative court of Rheinland-Pfalz confirmed previous decisions when it stated the following in 1994:

The Quasar game is in contradiction of the unwritten rules of any individual's public behavior, compliance with which is commonly considered a mandatory requirement for a community existing in law and order. Dignity of human life (Art. 1 GG) and the right to life and freedom of bodily harm (Art. 2 GG) as upheld by the constitution are expressions of the values held by the majority of the population. The Quasar game contradicts these values in attempting to entertain by simulated acts of killing.

The court further stated that Quasar was a "game designed to shoot with weapon-like devices at human beings. [..] Thusly a game is offered to the public in which e.g. children and parents can try to take each other's life..." Within the same decision, the age groups of 14 to 18 and 19 to 25 are singled out as subject to potential harm, stating that "for these minors and young adults the process of shaping personality is not yet finished, which means that from the public's point of view these groups are particularly prone to lose the inhibition to indulge in real violence". The alleged risk is derived from "turning killing into fun", and from providing incentive to repeat the game and improve performance by scores.

It is notable that this court rejected all notions that games could possibly serve to vent aggression. The claims of desensitization and habituation have been made in other countries. However, some German institutions are particularly concerned that by permitting violence in games, the public's acceptance of the state's monopoly on use of force might be weakened. This concern might be of only minor importance in other societies, though.

laser_tag_28a_29.jpg Interestingly, the court denied that there was a similarity between laserdrome games and arcade war simulations or computer games. It stated, "In Quasar the players [..] do not just use buttons, levers and switches. They do not guide cartoon figures, they are active participants running, hiding, aiming, shooting, or being shot." So it seems that the problem with Quasar was its immersive "real world" nature. It is easy to see how claims of "immersion" by publishers trying to sell computer games could affect how the court views those titles.

The same court believed that the team-player aspects of Quasar would increase the potential harm of the game. It claimed that "as part of a group, the combat becomes even more realistic as compared to the game of an individual in front of a machine." Attempts to evolve online multiplayer games from today's disorganized mayhem into a less solitary, more communicative experience (like a war game) are bound to elicit similar criticism from the courts. This doesn't even take into account claims by some game developers that their products are suitable for training military forces, or the incidents in which games have actually been evaluated for military use.

Finally, the court denied all similarity of Quasar to "traditional sports accepted by society which resemble acts of combat", such as fencing. Claims that computer games qualify as sports are likely to be refuted on the same grounds as was Quasar. A 1995 decision by the higher administrative court in Northrhine-Westphalia referred to this ruling, added that the gamer is supposed to "practice and perfect acts which are rejected by aforementioned standards at the penalty of law", and stated that only law enforcement and military personnel were permitted to participate in such training.

In 1994, an administrative court in Cologne found a different laserdrome installation to be in compliance with the German law. In this case, the court emphasized that inanimate targets were present, none of which were designed to be human in appearance, and that during the game only the reflective targets carried by the players were clearly visible – not the players themselves. Use of a laser was considered to be sufficiently different from imagery of real violence and military operations – more closely related to the realm of "fantasy or science fiction". The Cologne court denied that "contempt for human life" was obvious in the set up of the game, and that the mere fact that human beings were tracked down and shot at by others did not automatically turn them into objects. The same court, however, pointed out that the "dignity of human life" upheld by German constitution is violated if a person is turned into an object, even if the victim has consented. In general, related court decisions argue from the perspective of an observer of the games, neither participating nor willing to participate in the game. In some cases, not even direct observation of the events by spectators seems to be implied – the very fact that a "killing game" is offered has been deemed offensive to the lawful citizen and the state alike.

laser_tag.jpg

The administrative court of Bavaria in 1994 likewise turned down attempts to close down a laserdrome that admitted adults only. The court denied that the game represented a danger or a nuisance to the public, and stated that harmful influence was not immediately evident, and would have to be proven in court. The court, however, confirmed the possibility of harm to minors. In this case, the objections against the laserdrome were based on a different part of German law dealing with minor infringements against public order (public acts deemed grossly improper or indecent, which are comparable to traffic violations). The court rejected the notion that the action laser game qualified as grossly improper behavior, and said that the respective claims were obviously based on exaggerations like "death game, killing game, manhunt, playing all out war, glorifying violence, battlefield, arena, weapons, guns [..], killing as entertainment." The court summarized it this way: "objectively, the process bears little if any resemblance to real world situations of war, civil war, or gang fighting." The court characterized the game as "a game of tag" at its core. However, this assessment was largely due to the technical shortcomings of the set up – the short range of the laser weapons and their lack of accuracy which required close encounters – and the plain and simplistic set up of the playing field. The court compared the set up to that of a poorly equipped dance club, in terms of lighting and ambient music.

The overall impression one is left with is inconsistency. The rulings lack coherence. The variety of the arguments leveled against laserdrome entertainment in general, and the given installations in particular, indicate that many of the objections are construed from law, but that they're not really self evident. As a result, the German Social Democratic Party (SPD) announced in 1995 a proposal to amend the administrative law, which would have let communities prohibit commercial laserdrome installations. This proposal was later rejected by the German government. In 1997, a change to the law governing improper behavior and public order ("Ordnungswidrigkeitengesetz", OWG) was proposed in the federal Bundesrat. The revised law, Section 188a, would have prohibited degrading games. It stated "Contravening the regulations is any person organizing games in which guns or gun replicas are used to simulate killing or injury of participants, or provides sites, buildings or facilities", at a proposed penalty of DM 10,000. In some cases, a proposed penalty of up to DM 1,000 for participating in these games would have applied. Arcade and computer games, and sports like fencing or (though not mentioned explicitly) boxing were supposed to be exempt. The representatives of Bavaria that initiated this proposal aimed it at the approximately 50 "Gotcha" paintball groups which had an estimated 30,000 members. The German government foresaw problems with the proposed law's scope, however (e.g., Would a children's game of tag be illegal? How would the new law apply to existing laws?). The proposal did not pass within that legislative period, and was subsequently discontinued.

Trying to employ such roundabout solutions to constitutional problems that the government wants to address implicitly acknowledges the low likelihood of yielding the desired results. On the other hand, no court ruling rejected the argument outright – rather, games have been assessed based on their realism and immersiveness on a case-by-case basis. In the near future, installations offering LAN-based gaming are bound to face similar uncertainties.

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