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Take-Two Loses Another Round in Court 88

IntelliAdmin writes "A federal judge refused a request from Take-Two Interactive Software to immediately dismiss some claims in a lawsuit accusing it of selling Grand Theft Auto videogames containing sexually explicit images under the wrong content label." From the article: "Take-Two and its subsidiary, Rockstar Games, had argued in the motion to dismiss parts of the lawsuit that the plaintiffs could only file claims in the states where they resided, not in all 50 states. But U.S. District Judge Shirley Wohl Kram denied Take-Two's motion and said she would reconsider if class-action status were granted in the case."
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Take-Two Loses Another Round in Court

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  • Dear Government, (Score:4, Insightful)

    by tomstdenis ( 446163 ) <tomstdenis@gma[ ]com ['il.' in gap]> on Friday October 27, 2006 @02:19PM (#16612356) Homepage
    If seeing polyboobies is REALLY a significant problem for our children I think we screwed up long before then.

    Sincerely,
    Crying For Society....

    • Are you kidding!?

      Look what happened when one breast was shown at the Super-Bowl.

      I think the U.S. is slightly behind the times when it comes to these things.

    • Re: (Score:3, Insightful)

      If seeing polyboobies is REALLY a significant problem for our children...

      Polyboobies were never really the issue. It has always been about political opportunism and legal extortion (otherwise know as frivolous lawsuits). Look at anyone who stands to benefit from this lawsuit and one sees this is the case.

      There are reasons to be distressed about this issue, but the issue of concern is a justice system that is driven by, or at least manipulated by, ambition and avarice. The issues surrounding this g

      • I am not really disagreeing with you, I just think the problem is much deeper than simple sexual provincialism. Regrettably, I don't have a solution.

        I do but unfortunately my solution, "Kill everyone but me", has it's own problems, not the least of which is getting everyone to agree on who the "but me" part refers to.
        • The person with the biggest stick?

          Of course, everyone would just start bragging about how big their stick is.

      • Maybe coming up with some ideas that would help change the way law-suits are handled. Maybe there should be a way to change the law, so that if a group of people are offended they can't simply sue. Or, at least have some sort of definite kine in the sand. Say things like suing the kkk over hate speech is ok. But suing them for selling a game isn't. The problem is that most people seem to forget that you can shut-off a gamer if you think that it might be offensive. All these lawsuits do is make even more
  • Since when is what amounts to frottage in any way sexually explicit? There's nary a dong or a hamburger shot to be seen!
  • Take Two should just plead guilty and stop paying lawers to defend them. They are wasting a ton of money when they know damn well that they did put the content in there. Of course the ESRB is to blaim as well because they could have done a better job in the first place.
    • Except they removed access to the content. Granted, they should've removed it completely, but there was no way to access it without modifying the game.

      I don't know what the ESRB was supposed to do. They could've played the entire game, found all the hidden packages, completed every mission, achieved 100% completion of the game, and they'd still not have found the inaccessible digital boobs.
    • It wasn't an easter egg, it was disabled content. An easter egg is intended to be accessible from within the game, but just not in an obvious way. Disabled content is not intended to be accessible through any in-game means, but of course it is possible to change the game code to allow access. It's the difference between finding an egg hidden behind the couch, and finding an egg in a dumpster. The one behind the couche was put there on purpose. Nobody expected you to go rifling through the dumpster look
      • Uhm, the Mod did not add the content like the mod you refer to in UT2004. Besides San Andreas could have been rated AO just on the basis that it has extended periods of violence which I might add are illegal kind of violence like shooting all the hookers in town or killing cops. This is different from a combat game where you choose a side to fight on.
        • Uhm, the Mod did not add the content like the mod you refer to in UT2004.

          So what? In both cases you cannot see the content without a mod, and after applying a mod you can. The only difference is the size of the mod you have to apply, but the concept -- modifying the game -- is the same. The ESRB should not -- in fact cannot -- be responsible for modifications made to a game by users after it has been purchased.

          Besides San Andreas could have been rated AO just on the basis that it has extended periods of
          • I think a certain Beach Volleyball game was modded to show nudity but nobody asked for that to be re-rated because it required re-skining the models which is adding content to the game. In the end, it does matter if the content was in the game even if it was not immediately accesable.
            • In the end, it does matter if the content was in the game even if it was not immediately accesable.

              It only matters to people who don't understand the simple concept that applying a third-party mod to a game may change the content of that game.

              The content was not in the game. There was no possible way for you to encounter that content in the game. You could only do so by changing the game.

              If you didn't want to see bare breasts, and you never installed the Hot Coffee mod, you would never see any breasts, an
              • Those people are insane.
                If people actually did that then I would agree with you that they were insane.
                • If people actually did that then I would agree with you that they were insane.

                  Well if nobody who doesn't want to see boobies applied the Hot Coffee mod to the game, and thus none of them saw boobies in the game, what exactly is everyone complaining about? Since they didn't modify the game, the ESRB rating (which applies only to the unmodified game for what I pray to God are obvious reasons) was 100% accurate.

  • For the love! (Score:5, Insightful)

    by rehtonAesoohC ( 954490 ) on Friday October 27, 2006 @02:28PM (#16612522) Journal
    Stop confusing the issue!!

    The problem is NOT that Rockstar included sexually explicit content in their game. The problem is that they released it under a rating that did not include knowledge of the sexually explicit material. Saying something like: "if children seeing polyboobies is a problem then blah blah blah" is a completely misleading statement.

    This has absolutely NOTHING to do with children seeing boobies. It's the fact that Rockstar didn't DECLARE there were boobies to the ESRB. If a parent doesn't care about their child seeing digital boobs, then let the parent make an informed decision about the product up front. But stop saying that there's a problem with society because children seeing digital boobs is causing such a commotion. It's not.
    • And my point is who gives a flying fuck?

      This should be a NON-ISSUE because quite frankly, boobies GIVE LIFE to small children, they're a symbol of fertility in breeding age women, nothing more. I think teenagers can sort out what boobies are [even if they don't know how to manipulate them hehehehe] for.

      This whole debate is nothing more than a class of inbred christ-fearing rightwing zealots imposing their illogical non-biological will on others.

      I say let the titties flow!

      Tom
      • Re: (Score:3, Insightful)

        This should be a NON-ISSUE because quite frankly, boobies GIVE LIFE to small children, they're a symbol of fertility in breeding age women, nothing more. I think teenagers can sort out what boobies are [even if they don't know how to manipulate them hehehehe] for.

        I agree in the sense that my values are similar to yours. I disagree that you or I should enforce our sensitibilities on other people. If a parent doesn't want his/her kid seeing said polyboobies, who am I to tell that person they are wrong? Who

        • Chances are if your kid can't handle polyboobies, they can't handle a game in which you steal cars, drive recklessly and MURDER HUNDREDS OF PEOPLE!

          I'm all for having a choice whether your kids play/see/listen with media. What I hate is how they then enforce their values on others. Your kid may not handle polyboobies, but mine sure as heck will.

          Tom
          • "Chances are if your kid can't handle polyboobies, they can't handle a game in which you steal cars, drive recklessly and MURDER HUNDREDS OF PEOPLE!"

            Considering that teen pregnancy is far more likely than a murderous rampage, then no, the chances aren't that similar.

            "What I hate is how they then enforce their values on others."

            By notifying you of what's in the game? Oh those value imposing bastards.
            • By notifying you of what's in the game? Oh those value imposing bastards.

              The sex scene exposed by Hot Coffee was not in the game, and hence there was no need to notify you of it.

              The only notification that Rockstar/ESRB may be remiss in omitting is a warning that the ratings only apply to the un-modded game, and that if you apply a mod you may see things you don't want. I can't think of any way of wording this that doesn't sound snarky and condescending, because it's so bloody obvious. It'd be like having
              • "The sex scene exposed by Hot Coffee was not in the game, and hence there was no need to notify you of it."

                The content was on the disc. The 'mod' simply unlocked it. I'm not saying I agree that they should have changed the rating, but I can certainly understand why it was contraversial and why Take Two drew fire over it.

                "I can't think of any way of wording this that doesn't sound snarky and condescending, because it's so bloody obvious."

                I understand what you're saying, but I don't agree that it's so 'bloo
                • The content was on the disc. The 'mod' simply unlocked it.

                  On the disc, but not in the game. The mod, as the word implies, changed the behavior of the game. Without that mod, you would never see the content on the disc because it was not part of the game.

                  Yes, the mod simply unlocked it, but it doesn't matter how simple it was, it was a mod that made the content available. No mod, no content.

                  I understand what you're saying, but I don't agree that it's so 'bloody obvious'.

                  You don't think it's bloody obvious
                  • "In hindsight, maybe, but when designing the game they left it on the disc most likely as a testing issue..."

                    Um, no, it was stupid hindsight or not. By then, Rockstar had already dealt with two previous GTA games.

                    "As far as it being "just a bit change", a single bit can change everything. What would be the practical difference between the existing Hot Coffee mod, and a mod which itself contained nude models/skins? The answer is the file size of the patch."

                    It means the traditionally non-mod'able version on
                    • Um, no, it was stupid hindsight or not. By then, Rockstar had already dealt with two previous GTA games.

                      I'm not understanding why that's significant. Are you certain that GTA3/Vice City didn't contain disabled content that would go against the ESRB rating if it were enabled?

                      It means the traditionally non-mod'able version on the PS2 and XBOX could see the content. It wasn't just the PC version that was affected. I doubt this whole thing would have blown up otherwise.

                      Of course they're modable, or you wouldn'
                    • "I'm not understanding why that's significant. Are you certain that GTA3/Vice City didn't contain disabled content that would go against the ESRB rating if it were enabled?"

                      Okay, let's clarify something here: I'm not saying the rating should have been changed in the first place. Honestly, I'm still on the fence about that. The key ingredients for me here are: 1. The content was on the disc. 2. It was easy to find and enable the content. 3. That franchise was under close scrutiny in the first place. R
                    • Does that clarify my views a bit?

                      Sure, I get what you're saying now. I don't see why it's important that it was easy to find; if it was somehow obfuscated, that would be okay then? The whole point was that it was extra material left around because other parts of the game may have still depended on parts of it.

                      Still you're right that they are under scrutiny and should have known better... maybe, like I said I'm still not sure Rockstar thinks this is a bad thing, and if so why would they go out of their way
            • Unless you're arguing that the Hot Coffee mod actually influences kids to go out and get teen-pregnant, I fail to see the relevance of your argument.

              • "Unless you're arguing that the Hot Coffee mod actually influences kids to go out and get teen-pregnant, I fail to see the relevance of your argument."

                Nope. I'm saying teen-pregnancy has contributed to sex in video games being more contraversial than violence in video games. I'm talking about why parents would be concerned, not the actual effect.
        • I disagree that you or I should enforce our sensitibilities on other people.

          The only ones doing that are Jack Thompson types.

          Who am I to tell you what your kids can or cannot see?

          See above.

          In this case, it's simply a matter of making the information available on the box.

          They did. Warns of violence and sexual content.

          The games should be advertised properly.

          Tbey did, see above.
          • "The only ones doing that are Jack Thompson types."

            Each parent has their own idea of what is and isn't appropriate for their kids. Sadly, I know people who won't let their kids read Harry Potter. I don't agree with that, but it's their kids and their perogative. As long as the game in question is properly labeled, they cannot blame the game publishers if they purchase something questionable. That's pretty much what's preventing some games from being flat out banned. It puts the responsibility of parent
        • by KDR_11k ( 778916 )
          The game is marked with a label reading, among others, "Strong sexual content". Now I don't know about you but I'd expect that to include that half-implemented sex scene Hot Coffee makes accessable.

          Never mind the game NEVER displays that scene unless it's operated out of spec (compromising the game's save data) so those parents could just sit back knowing that their kid won't ever see that scene.
    • Re: (Score:2, Interesting)

      by amuro98 ( 461673 )
      But the REAL question here is, is Rockstar/Take Two and/or the ESRB, responsible for mis-labeling a game based on hidden content that's legally inaccessible?

      The only way to access the sex scenes is to hack the game - and that's illegal thanks to the DMCA.

    • Re:For the love! (Score:5, Insightful)

      by spyrral ( 162842 ) on Friday October 27, 2006 @02:46PM (#16612934) Journal
      That's hardly a fact. That content was not accessible in the game Rockstar released. It wasn't even reachable via cheat codes or easter eggs. It was only through cheat devices like Game Shark or mods in the PC version that you could see it. It was removed the gameplay, but due to technical issues involved with the QA process the files or content was left in.

      That distinction will be hard to explain to the laypeople that will make up the jury in the case, but someone who's posting on "News for Nerds" should be able to grasp it.
      • It's not hard to explain to laypeople. If I go to a beach and cut a hole in my bathing suit where my crotch is, is it the bathing suit manufacturer's problem? No, because I shouldn't have altered what they had given me and expected that nobody would be offended. Same thing. TakeTwo released a game which had parts inaccessible to the public without modification. Bathing suit manufacturer released a bathing suit, when worn correctly, has parts hidden inside it that are inaccessible to the public without modif
        • But your bathing suit did not come with anything that could offend, however inaccessible. This game did. Your explanation requires the application of 3rd party content (your crotch) before any offence is had, a bathing suit with a hole in it does not in itself offend, only when it is worn.

          This leads to an interesting dilemma of how much 3rd party content is required for it to be a 'mod' ? Oblivion hackers applied a male skin to a female mesh to create boobies, does this count?
          • But your bathing suit did not come with anything that could offend, however inaccessible. This game did. Your explanation requires the application of 3rd party content (your crotch) before any offence is had, a bathing suit with a hole in it does not in itself offend, only when it is worn.

            And a modded GTA game does not in itself offend, only when it is played. Maybe a bathing suit isn't the best analogy, but it's suitable because the principle is the same: You have to take a deliberate action to change t
        • If you bought a swim suit with a crotch-shaped hole on the back side of the material, but the front of the suit is completely solid, and then you went and cut out the front material to the shape of the existing hole, well then you'd have a proper analogy to what Rockstar did.

          The hole was there all along, but it was patched so no one would see it under normal conditions. By modifying the suit/game, you exposed a "hidden detail" of the original item but it can hardly be said that the manufacturer intended to
      • Re: (Score:3, Interesting)

        by Palshife ( 60519 )
        Hypothetical.

        I make furniture, but as a joke, I paint erotic pictures on the wood under the upholstery. Now, as long as people use it as furniture and don't take apart the product, no harm done.

        Am I selling porn?
        • Re: (Score:3, Insightful)

          by cptgrudge ( 177113 )

          I believe that according to Fair Use rights in the USA, the entity that purchased your piece of furniture has the right to use it in any way they see fit, including dismantling it. You have no say in usage. If the erotic depictions fall under the accepted definition of pornography, then yeah, you might be selling porn. (Although intent might play a role.)

          The difference may be in the fact that when you buy Software (according to the EULA), you are purchasing a license to use the software, and are granted

    • It's the fact that Rockstar didn't DECLARE there were boobies to the ESRB.

      Despite the fact that third party hacks had to be applied to the game to access said boobage...

      It is not uncommon practice for developers to leave unused code/content in their software. You can find examples of this everywhere if you take a hex editor to just about any program and read the developer comments. This is stuff intentionally made to never be seen by the end user in the final product, and are merely in there for evaluation/
      • I think the main problem is that people like Jack Thompson can manipulate this any way they see fit. I was originally posting under an idea that I was the prosecution. It is much easier for the prosecutor to weave any web he wants with the story, because technically, the content was available on the disc. Regardless that it was attainable by illegal and/or inordinately unusual means, the content was still accessible which is the whole problem.

        Now, I honestly think that "families against bad videogames" ty
        • Two things: You can compare this to the revival of Aeris in FF7. It was fully complete, and available in the Japanese version, but was broken in the US version for time reasons on localization. Other games have fully complete features in them that are unlinked for various reasons, including Mario Kart DS which has completed tracks that are only lacking textures on the cart.

          Second thing: The content was not actually accessible. It existed, but that is not the same thing as accessible. A really good la
    • by sqlrob ( 173498 )
      So, the "Strong Sexual Content" warning on the back doesn't cover it?

      Maybe it wasn't specifically disclosed to ESRB, but that descriptor alone sure seems enough.

    • release a video game with sexually explicit content. They released a video game that can be patched to include sexually explicit content.
      Big difference. The ESRB rating on the games is accurate for the game as shipped. There is nothing more explicit than gaining health for having hookers crawl into your car. Hot Coffee is a MOD - ie, you have to modify the game to see it. This whole suit is about people being up in arms about the game being changed after the sale. I never saw the issue.
      1. You buy the game
      2. y
      • You can't really call the hot coffee content a MOD per se. Users did not add the boobies, all the user added was the ability to access the boobies. In court, no one cares that you couldn't access that content on a vanilla version, but what the court will care about is the fact that Rockstar was the creator of the hot coffee content. Period.
        • That's like saying "you cut out the x rated portions of your movie to get an R rating, but we don't care - if the consumers get the cuttings off the floor & tape them back in, they can see them."
          I'm sorry, I would walk into court with a sealed copy of the game, a PC & hand them to the plantif's attourney & say, "OK, show me this content we misrepresented. Oh, you can't do it, then how did we misrepresent what we sold? The game, as sold, was valid for it's initial rating."
    • This has absolutely NOTHING to do with children seeing boobies. It's the fact that Rockstar didn't DECLARE there were boobies to the ESRB.

      There were no boobies to declare.

      There were no boobies until you applied a modification to the game downloaded off the internet.

      At the point at which you are applying a modification to the game, does it matter if the mod is just unlocking previously innaccessible content on the disk, or if the mod contained the boobies itself? You're modifying the game from its original,
      • There were no boobies until you applied a modification to the game downloaded off the internet.

        If a tree falls in the woods when no one is around, does it make a sound?

        If that parent or their child then goes and modifies the game such that it shows boobs, that is their fault, not Rockstar's or the ESRB.

        So you're telling me that if your Sister is in a locked room that you can't get to, but she's having sex with your Father, if you break into the room, it's YOUR FAULT for seeing it?

        • If a tree falls in the woods when no one is around, does it make a sound?

          But someone is around -- you, the person who chopped the tree down. The tree was not going to fall until you came up to it with an axe, chopped it down, cried "Timber!", and then got upset that the tree fell and made a loud noise. Getting all existential about it after the fact -- "Sure I cut the tree down, but it already had the potential to fall and I just unlocked it!" -- doesn't change anything.

          So you're telling me that if your S
      • If there was an "Iced Tea" mod that put beastiality into the game, would it be Rockstar's fault for not notifying the ESRB that their game might, at some point in the future, depending on what internet modders do, contain beastiality?

        "This game may be altered by mods. It is therefore an existential paradox, in that it may possibly contain our entire existence, perceived reality, and infinite time, and/or possibly consisting of an utter nothingness devoid of matter, energy, and measurement."

        That shoul

    • This has absolutely NOTHING to do with children seeing boobies. It's the fact that Rockstar didn't DECLARE there were boobies to the ESRB.

      Scarlett Johannson has boobies, under her clothes. It's a biological fact.

      But you don't see anyone going around complaining that all the movies she is in should be rated R or above due to the presence of boobies. They're not accessible in the content as released, thus they are not relevant, and the studio doesn't need to mention her boobies specifically when they submit
    • You do realize that when making a model, if you want really good cloth physics, it is easier to create a nude model, and then skin the clothing over the existing nude model. Most MMOs do this, so that it is easier to change the clothing on the model for new armor and equipment. That means that, even though you may never see a nude model in the game, they are all nude under their armor, and if you were to pull the base model from the game engine with the right program, you would be able to see that. You w
    • by qeveren ( 318805 )
      They did no such thing. They released the game with that content disabled. As in, completely inaccessible to the player unless the player went out of their way to actually modify the code of the game itself. Rockstar didn't need to declare it because it wasn't part of the game.

      This is exactly identical to suing a game company because one of the comments in the code contains the word 'fuck' and they didn't declare this to the ESRB.
    • Comment removed based on user account deletion
  • by amuro98 ( 461673 ) on Friday October 27, 2006 @02:30PM (#16612554)
    So, they're still being sued...over questionable content...that you can't access...unless you violate the DMCA...?

    Why hasn't Rockstar/Take Two launched counter-suits against people who have used the Hot Coffee hack and are outraged by it?
    • Two words (Score:2, Interesting)

      by Brothernone ( 928252 )
      Free Press.
      Gotta love the free advertising and scandals..It's like jack Thompson. It's not a big deal, but they fight it out to get the name out there without paying ungodly advertising costs.
    • Modifying a program for your personal use probably would not constitute a violation of DMCA. If one modified the game with the intention of making unauthorized copies, that may be a violation. But the modification that displays the undisclosed content didn't do that. Modifying the game may violate the EULA but not the DMCA.
      • by amuro98 ( 461673 )
        I wish it was that way, but no.

        The DMCA outlaws any and all types of modification - regardless of the purpose or audience - that requires reverse engineering, decompilation or other forms of hacking.

        Heck, just dumping a save file into a binary editor is a violation of the DMCA.

        (enforcement is another matter...)
  • For the curious... (Score:3, Interesting)

    by Deagol ( 323173 ) on Friday October 27, 2006 @03:23PM (#16613754) Homepage
    who haven't seen some of the content yet, here's a Google Images search for a handful of hi-rez pics. [google.com]

    Not as tame as the Sims/Sim2 w/o the pixel blur, but it is a bit more graphic than Janet's nipple. Though I recall seeing about as much skin as a kid when my mom's soaps were on the tube.

    Funny how our standards (as a society) change over time. Anyone remember the full-frontal nudity of a baby Clark Kent in the theater release of Superman in the 70's (PG)? Or how about those obviously gratitous bare breasts briefly flashed in the foreground on the panic scene in Airplane (also PG).

    Damned puritan nation...

    • Re: (Score:3, Informative)

      by oneiros27 ( 46144 )
      One little problem with your Superman / Airplane! argument:

      Both of those were PG before PG-13 [wikipedia.org] was created as a rating (1984).

      So, it's possible that had such a rating existed back then, they might've been rated PG-13 and not PG.

      Have social standards changed? Probably. (although, both would likely score below 'R' and above 'G', so it's hard to tell in this particular case if they'd be rated PG or PG-13).
      • by Deagol ( 323173 )
        I'm well aware of when PG-13 came to be. My (somewhat tangential) point was that those of us young moviegoers before the PG-13 era turned out just fine. These days we're a society that thinks lite-porn glossy mags like Maxim are okay for kids to thumb through at the grocery store, tons of violence in TV and PG-13 movies are cool, but whoa! stop the presses! if a nipple is shown.

        There was more real nudity in PG movies in the 70s/80s than there is in today's PG-13 movies. Hell, even in today's (American)

      • Ahhh, but Spaceballs, which was rated PG in 1987, has an insane amount of profanity that would get an "R" rating today.
  • your car comes out of the box ready to go 115+ mph (more if you've got a sportier car or less if you've got a Geo), but the governor limits this (in america at least) to ~115mph. Does this mean that automotive manufacturers are selling illegal racing machines because someone can flip a bit somewhere (or cut a wire, whatever)? I think that Take Two is not necessarily responsible for someone unlocking content they decided to hide at the last minute.
  • Hey, this is great news! I was trolling on the net the other day, and I found a mod that turns my original "Doom" into a nudefest... hundreds of young, naked women, some of whom may be underage! So this whole case is going to be a great precendent.

    So, who wants to get in on the "ID" lawsuit with me? I mean, I got the game, then downloaded something that made the game do a naughty, within the game mechanics. That's close enough.
    • Your Doom mod means nothing because you added the nudity.

      This case is a real head-scratcher because Rockstar included the nudity - BUT they did not include any way to view it with the game that shipped! It's basically almost as if you had sold a movie on a DVD with a hidden pornographic JPG that only a computer could access by browsing files. In that case, should the movie have an X rating even though a DVD player would never show it?

      It seems like Rockstar should win this one but it is more complex than a
      • And the Hot Coffee mod added code that allowed access to the content. Personally, I could find a similarity between using existing code to access added content, and using added code to access existing content.
  • This whole issue is simply ridiculous. The game was rated Mature (17+) with a list of reasons included on the box, and parents/politicians/blood-sucking lawyers are complaining that their (less-than-17 year-old) children who play it are seeing polyboobies? Wouldn't 'mature' seem to indicate, well, a certain level of maturity, such that children who are allowed to play the game by their parents are probably capable of handling polyboobies without spontaneously combusting? And if the parents aren't aware o
    • Exactly - we've got an adult rated game in which the character is an criminal who can kill innocent people with a flame-thrower, beat police to death with baseball bats, get "serviced" by hookers and then kill them and take the money back, etc, etc...

      But, allow a little simulated nudity and sex and there is an outcry. The hypocrisy is ludicrous. No 10-year-old should be playing this game. That's why it is rated 17+ in the US, 18 certificated in the UK. But if parents allow their child to play this game th

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