The uproar over the easter egg (hidden program/content) found on the Grand Theft Auto videgame, and it's subsequnt re-classification as an adult-only game should concern people who care about the Freedom to Tinker. Here, users downloaded software to modify the game software to access content on the disc that could not be accessed without the modification. A nice description: "An artist makes a painting, then doesn't like the first version and paints over the canvas with a new painting, right?" "That's what happened here. Hackers on the Internet made a program that scratches the canvas to reveal an earlier draft of the game."
The article goes on to list a variety of proposals to prevent this from repeating and-- of course-- one is to sue companies that make modification software. On initial reading, this seems absurd. Yet it's DMCA redux. The duty to clean up the software should be on the gamemaker. If you sell me content, I should own it, or the law should place the burden of preventing me from accessing any content you do not want me to access on you-- the game creator-- the party best situated to prevent access. Not on random third parties.
Yet this is where the DMCA takes us. Under the law, the bad guys here are the ones who trafficked in anti-circumvention devices. The ironic twist in this saga, is that the game owner is actually bearing the cost of their mistake because of the politics. Anti-violent video game advocates have jumped on this hidden content as a cause celeb to go after the makers of the games. Stopped from pursuing laws that restrict selling these games (excellent and fun decision by Posner finding an Indianapolis ordinance unconstitutional), they are using this incident to go after the industry's contention that rating systems are an adequate means for policing these games. I agree with that, but here, that argument seems thin, because of the seemingly "fraudulent" rating of this game, given the hidden content.
When it comes to speech, I think this is how it should work. Public outcry (the market), and incompliance with a voluntary rating system effected the distribution of the content. Not laws. And technology is not a scapegoat for the gamemaker's lack of care in producing a product that complied with the ratings system.
UPDATE: WiredNews reports gamemakers are doing their best to blame it on the modders. The company's press release said it is: exploring its legal options as it relates to companies that profited from creating and distributing tools for altering the content.