Halfway through 2006, a huge story went unnoticed by game journalists. Barely a cursory glance or raised eyebrow marked its passage. Early in May the Entertainment Software Rating Board quietly changed Elder Scrolls IV: Oblivion‘s rating from “T” to “M,” forcing a recall and re-labeling of the game, and costing Bethesda a fortune. The problem? Bethesda had nothing to do with it.

A modder unaffiliated with the game’s developers, working on her own time, manipulated art assets in the game, rendering female characters topless, and distributed her work over the internet. It was an act beyond Bethesda’s control but to the ESRB objectionable content is objectionable content, and it needed to be weighed, measured and rated.

The ESRB’s decision incensed industry insiders, perplexed onlookers and gave politicians a jumping-off point for continued assaults on the industry’s integrity. Looking back, there’s a reason the incident didn’t make bigger headlines: The news dropped in May, just a week before the last real E3 event, and there were bigger stories to cover that month. But with player-centric content vehicles like LittleBigPlanet and PlayStation Home on this year’s docket, last year’s ESRB decision may prove to be the gift that keeps on giving for an already beleaguered industry.

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When the ESRB rates a game, the only issue at hand is the impact it will have on players. Raters use a 32-item list based on the game’s content to suggest a player’s minimum age for most commercial videogames released in the U.S. and Canada. The foe of that process, the bane of the game industry’s self-policing efforts, is the three-headed hydra of bad press, public outcry and political interest. The Hot Coffee scandal and perceived connections to youth violence has forced the Board to label questionable content “Mature,” if only out of self preservation. Standing as the only bastion between government oversight and the game industry, it takes its job very seriously. When references to the “Oblivion Topless Mod” appeared on game news sites as a curiosity early in April of 2006, the ESRB had little choice but to check it out.

The Topless Mod debuted on the Oblivion Source fansite in March 2006. A woman calling herself “Maeyanie” created the mod because she hated “government/society/whatever forcing companies to ‘protect our innocent population from seeing those evil dirty things 50% of them possess personally anyways.'” In terms of shock value, the resulting nudity was fairly tame. With bottom undergarments intact and a lack of self-consciousness on the NPCs’ part, the modification was about as erotic as a doctor’s visit.

During the course of the ESRB’s examination, however, the organization saw even more it didn’t like. Though the Topless Mod didn’t change anything but textures on female NPCs, the ESRB found “more detailed depictions of blood and gore than were considered in the original rating.” That, combined with the revelation that the skin texture was among the files shipped with the game on release gave the Board cause to approve a rating change from “T” to “M.”

This is in keeping with the language on the ESRB’s website, which says, “Every publisher of a game rated by the ESRB is legally bound … to disclose all pertinent content … including content that may not be playable but will exist in the code on the final game disc (i.e. locked out). … In the event of incomplete disclosure during the rating process which affected or could have affected the assignment of a rating or content descriptor, an ESRB enforcement action may be initiated, which could result in revocation of the original rating and the imposition of sanctions, including monetary fines.”

Bethesda objected to the Board’s decision but agreed to abide by it, although they claimed they weren’t at fault for the Topless Mod. “Bethesda can not control tampering with Oblivion by third parties,” a representative said. “With regard to violence, Bethesda advised the ESRB during the ratings process that violence and blood effects were ‘frequent’ in the game – checking the box on the form that is the maximum warning. … We gave accurate answers and descriptions about the type and frequency of violence that appears in the game.”

Patricia Vance, speaking for the ESRB, fired back: “It is obviously unfortunate for everyone involved that no one at Bethesda deleted this file [the nude textures] before the game went Gold, contributing to our changing the rating after the game was released. … Our raters re-reviewed the game … and felt that the game was deserving of a Mature rating.”

Both the ESRB and Bethesda declined to reopen old wounds for this article. Reading between the lines isn’t difficult, though: From the ESRB’s perspective, even the tame nudity spelled danger, post-Coffee. With individuals like Leland Yee decrying every misstep the industry takes, the organization felt it needed to act quickly to ensure the story didn’t gain overwhelming media attention. To do otherwise would be to provide ammunition for the politicians. Bethesda, on the other hand, had almost no choice in the matter. Aside from their signed contract with the Board, they had their bottom line to consider. A stamp of approval from the ESRB is a requirement to be displayed on retailers’ shelves, from giants like Wal-Mart all the way down. Rejecting the ESRB’s decision would have forced them to search for a new organization to rate their games, and likely would have kept them out of mainstream circulation. Retail suicide, in other words.

What neither Bethesda’s defenses nor Vance’s attacks shed light on are the possible future implications of this decision. The speed with which the ESRB revoked the “T” rating should have publishers of mod-able games thinking hard about their priorities. Which is more important: a thriving mod community, or a rating you can bank on?

“Game 3.0” concepts, talked about extensively at Sony’s GDC event earlier this year, rely heavily on community input and outside content to make them “sticky,” in a social sense. Sony’s Phil Harrison spoke calmly about the ability for Home users to mute offensive speech and ignore users with pornography-filled personal spaces. In that light, the ESRB’s “Game Experience May Change During Online Play” seems like a gross understatement, the possibility for abuse too tempting for those with lots of time and little perspective to ignore. LittleBigPlanet is even more fraught with problems, as it is more traditionally a game. Will Sony provide personnel to review every fan-made level for offensive content? Will the ESRB? If Barbie-doll breasts can get a game re-rated, consider the dangers of introducing hardcore pornography into a LittleBigPlanet level.

While Hot Coffee will not soon be forgotten, the ESRB’s decision on Oblivion should have shaken the world harder. A game had to pass through the re-ratings ghetto because of the work of one free-minded individualist. Under assault from thousands of griefers anxious to share the goatse picture with everyone that passes by, how can collaborative games hope to hold up?

Michael “Zonk” Zenke is Editor of Slashdot Games, a subsite of the technology community Slashdot.org. He comments regularly on massive games at the sites MMOG Nation and GameSetWatch. He lives in Madison, WI (the best city in the world) with his wife Katharine. Michael is not a game journalist.

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