The Entertainment Software Association is urging against a ban of the Xbox 360 in the U.S.
In May, Judge David Shaw recommended to the International Trade Commission that the importation and sale of the Xbox 360 be banned in the United States because the console infringes upon patents held by Motorola. The recommendation followed an actual ban (sort of) of the console in Germany, which is currently up in the air due to the ongoing legal action in the U.S. And while a flat-out ban on the 360 seems unthinkable, it could theoretically happen, although many tech industry heavyweights, including HP, Nokia, the Business Software Alliance and even the Federal Trade Commission are urging the ITC to “decline to issue an order of exclusion” against the console.
Also against the idea, entirely unsurprisingly, is the Entertainment Software Association, the trade association that represents “the business and public affairs needs of companies that publish computer and video games.” Its membership “includes most of the major U.S. game publishers and the major video game console makers,” the ESA said in a statement, which leaves it “uniquely positioned to describe the impact on the public interest of an exclusion order affecting the Xbox.”
“The video game industry is a significant contributor to the U.S. economy and job growth, and reaches American consumers of all walks of life. According to a 2011 NPD industry sales report, nearly three-quarters of all American households play games, and consumers spent nearly $25 billion on video games, hardware, and accessories in 2011,” the ESA statement said. “An exclusion order banning the importation of Xbox gaming consoles into the U.S. would harm not only Microsoft, but a variety of other parties across the gaming ecosystem, including most importantly consumers and game publishers.”
While an import ban would cause harm to game developers, publishers, consumers and of course Microsoft, Motorola Mobility “would suffer no equivalent harm” if the ITC declines to take action, the ESA added, and “any harm MMI would suffer can be remedied financially.”
Despite the judge’s recommendation, it’s considered very unlikely that the ITC will impose a ban against the Xbox 360. As patent expert Florian Mueller pointed out in May, ITC judges routinely recommend orders of exclusion if they determine that a patent infringement has taken place, and those recommendations are “very frequently not adopted” by the commission that heads the ITC. It’s far more likely that a licensing agreement on the technology in question will be imposed on the two companies instead, thus eliminating the infringement.