The Electronic Software Association (ESA), the video game industry lobbying group that runs the ESRB and E3, has apologized for a cease-and-desist order against blogs Bits, Bytes, Pixels & Sprites and Kotaku for merely posting the image from a T-shirt being sold on another site (image at right). Looks like somebody at the ESA councils office was bucking for more billable hours and skipped the day in law school about that silly First Amendment in the United States Constitution. Neither the one-man-band running BBPS or the Gawker network's Kotaku were paid for marketing the T-shirt, they merely thought it was a funny piece of paraphernalia and posted where gamers could buy the shirt. Of course the story doesn't end here. Now the question is: How did this happen? There are plenty of worthy questions to be asked about the root of this blatant disregard of the First Amendment, most of them involving a lawyer or two being completely asleep at the wheel. It could very well be that the lawyers truly had no idea what function BBPS and Kotaku serve in the industry. We gamers have a term for people like that: n00b!
The apology letter to BBPS -- the Kotaku letter is identical -- stated:
The ESRB Rating Icons are valuable trademarks of ESA, and we must be vigilant in protecting them against unauthorized commercial uses, lest our trademark rights become diluted. At the same time, we also understand and respect the First Amendment rights of those who, like bitsbytespixelssprites disseminate news and information.
That said, we have taken a second look at this issue and concluded that bitsbytespixelssprites was reporting on a product in the marketplace, and is not involved in distributing or marketing this product, and thus did not engage in any conduct sufficient to trigger the issuance of the cease and desist letter we sent. Please accept our apologies. I am happy to discuss this with you further if you so desire.
Sincerely,Gail Markels
Senior Vice President and General Counsel
