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Mining products liability and First Amendment law, U.S. District Judge Janet Bond Arterton of the District of Connecticut found no grounds to sue the makers of the “Mortal Kombat” video game in the stabbing death of 13-year-old Noah Wilson four and a half years ago. The child was killed with a kitchen knife by Yancy S., a playmate who Wilson’s mother charged was “addicted” to the gruesome interactive video game in which pairs of joystick-controlled gladiators battle to the bloody end. She claimed the game lacked warnings and was entitled to no First Amendment protection. Representing her son’s estate, Andrea Wilson claimed Chicago-based Midway Games Inc.’s advertising campaign violated unfair trade practice law by targeting children, and sought damages for loss of parental consortium and emotional distress. But in 34 pages touching on Shakespeare, Marshall McLuhan, the Columbine massacre and a flawed guide to poison mushrooms, Arterton held the video game is not a “product” and is shielded by the First Amendment. The New Haven-based federal judge predicted that if the Connecticut Supreme Court were to rule, it would not allow parents consortium damages from the death of a child. GRIM REWARDS Wilson was represented by Hartford, Conn.’s Joseph A. Moniz. His complaint was praised as “artfully drafted and skillfully defended” but was dismissed on all counts. The complaint said the virtual reality video game uses “sophisticated technology to make players physically feel as if they are killing the characters in the game,” rewarding players for their escalating “killer responses.” Unlike movies or music, the games permit a player to “control or even assume the identity of” a fighter-killer. The complaint alleged that Yancy was addicted to the game, and identified with the character “Cyrax,” who grabs opponents in a headlock and stabs them in the chest — which is how Yancy killed Noah in real life. Midway is represented by Gerald Sweeney of Chicago and David Belt, of New Haven’s Jacobs, Grudberg Belt & Dow. In Midway’s motion to dismiss, it contended the state products liability act “cannot be contorted to include ideas or expression” in the definition of “product.” It cited the 1991 case of Winter v. G. P. Putnam’s Sons in the 9th U.S. Circuit Court of Appeals, where no liability was found for erroneous information about mushrooms. Nor was such a claim upheld in the 6th Circuit against the Dungeons and Dragons board game in a teen’s suicide, in Watters v. TSR, Inc., or against movies and video games viewed by the Columbine killers in a Colorado federal decision last month, Sanders v. Acclaim Entm’t, Inc. The Mortal Kombat case isn’t faulty information, like the mushroom article, but is akin to cases of improper exhortation, inspiration or “brainwashing” from games or entertainment, the judge wrote. In this “inciting” category she included a 1983 case against Hustler magazine over an inflammatory article on “autoerotic asphyxiation” which also was not deemed a product. The general rule, embodied in the Restatement of Torts, is that intangible ideas are not subject to liability as “products,” which must be tangible. The plaintiff argued Mortal Kombat was a new type of product, due to the technological sophistication of its virtual reality blended with interactivity. Put another way, Arterton wrote, it’s as if the line between Shakespearean words on a page and the sonnet they convey collapses, reminiscent of Marshall McLuhan’s 1964 maxim that “the medium is the message.” But interactive videos are no more revolutionary than movies were to books, Arterton reasoned. In the end, all these media are powered by images: “The pictorial representation that evokes the viewer’s response is the essence of the claimed ‘product’ regardless” of whether it’s viewed passively, as in a movie, or controlled by the viewer. TIME SETBACK Wilson’s unfair trade practices claim was filed in court just within three years, but the papers were served on Midway later, barring recovery under applicable state rules. In the absence of legislation, Arterton concluded the Connecticut Supreme Court would deny post-mortem consortium for a child’s death. Analyzing Midway’s First Amendment defense, Arterton noted that some courts have observed that all literature is interactive — and the better the literature, the more the viewer is compelled to interact with its characters and their experiences.

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