Major Legal and Legislative Victories

EMA's advocacy efforts have yielded a strong record of success for more than a quarter-century:

Videos and the "First Sale" Doctrine 

Shortly after its founding, VSDA , which later merged into EMA, mobilized its grassroots power to successfully oppose congressional efforts to abolish the "first sale" doctrine of copyright law. The "first sale" doctrine is the legal underpinning of the home entertainment retailing industry. It gives retailers the right to rent and sell prerecorded videos and video games without the authorization of the copyright holder.

Legislative initiatives such as the "Consumer Video Sales/Rental Amendment of 1983" (H.R. 1029/S. 33, 98th Congress) sought to require anyone wishing to rent videotapes to obtain prior permission from the copyright owner. VSDA's success in defeating efforts to undermine the "first sale" doctrine ensured the phenomenal growth of the industry.

WIPO/Digital Millennium Copyright Act 

VSDA successfully campaigned for international protection of the right of retailers to rent digital versatile discs (DVDs). In 1995, the World Intellectual Property Organization (WIPO), an agency of the United Nations, began a dialogue about international copyright protection of digital works. Because WIPO treaties often provide the basis for U.S. and international copyright laws, VSDA attended the negotiations as the representative of the industry and discussed issues such as the importation, distribution, and rental of audiovisual works.

VSDA was instrumental in preventing the WIPO from adopting the European model of rental rights, which gives the copyright holder the power to prevent rentals or charge royalties on them, and the resulting WIPO treaty protected U.S. copyright laws and maintained the "first sale" doctrine. Utilizing grassroots advocates, VSDA actively lobbied for U.S. implementation of the WIPO treaty and enactment of the companion Digital Millennium Copyright Act, which occurred in 1998. The Digital Millennium Copyright Act also strengthened "black box" anti-piracy laws.

VSDA v. Webster, 968 F.2d 684 (8th Cir., 1992) 

In a 1992 case brought by VSDA, the Motion Picture Association of America, two video retailers, and others, the U.S. Court of Appeals for the Eighth Circuit found a Missouri statute that attempted to restrict "violent" videos to be unconstitutional. The statute would have forbidden the sale or rental of violent videos to minors and would have required video dealers to display the videos in separate areas of their stores.

In a unanimous decision, the Court of Appeals recognized the distinction between materials depicting violence and those that are beyond the scope of First Amendment protection: "videos depicting only violence do not fall within the legal definition of obscenity for either minors or adults."

The Court held that the statue was "not narrowly tailored to promote a compelling state interest," and therefore "Missouri's statute cannot survive strict scrutiny." The ruling also found the statute "unconstitutionally vague" because it lacked any "narrowly drawn, reasonable and definite standard identifying the expression that is subject to the statute's restriction."

In the absence of such standards, the Court found it could not support "Missouri basically prohibiting the rental or sale of 'offensive' videos containing any form of violence."

Video Software Dealers Association v. City of Oklahoma City, No. CIV-97-1150-T, Lexis 22095 (W.D. Okla., Dec. 18, 1998); State of Oklahoma ex rel. Robert H. Macy v. Blockbuster Videos, Inc., No. CIV-97-1281-T, Lexis 22096 (W.D. Okla., Oct. 20, 1998) 

These two cases involved the seizure by police of every rental copy in Oklahoma City, Oklahoma of the Academy Award-winning motion picture The Tin Drum, which was based on a novel by Nobel Prize winner Gunther Grass. VSDA led the legal challenge to the attempted censorship. The court found that the movie did not violate Oklahoma's child pornography statute and that the action of police in seizing copies of the film was "unlawful prior restraint."

In an important ruling regarding the application of the Video Privacy Protection Act to law enforcement, the court also found that the police violated the act when they obtained the names of individuals who rented The Tin Drum.

The Video Game Cases

Between 2000 and 2006, seven states and two local governments enacted laws that attempted to restrict minors from playing, purchasing, or renting video games containing fictitious violent imagery. EMA and its predecessor organizations challenged eight of those laws of First Amendment grounds in federal court and submitted an amicus brief to the Court of Appeals for the Seventh Circuit in the ninth case. These cases resulted in every one of the video game restriction laws being found unconstitutional.

In successfully challenging the video game restriction laws, EMA helped establish legal precedents that video games are protected by the First Amendment, depictions of violence cannot be treated as obscenity, there is no credible evidence that playing violent video games leads to real-world violence, and video games should not be treated differently than other forms of entertainment that depict violence.

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