MEMORANDUM OPINION AND ORDER
In this diversity wrongful death action controlled by Colorado tort law, Defendants Acclaim Entertainment, Inc., Activision, Inc., Capcom Entertainment, Inc., EIDOS Interactive, ID Software, Inc., In-fogrames, Inc., f/k/a GT Interactive Software Corp., Interplay Entertainment, Corp., Midway Home Entertainment, Nintendo of America, Palm Pictures, Sony Computer Entertainment America, and Time Warner, Inc. move, pursuant to Fed. R.Civ.P. 12(b)(6), to dismiss for failure to state a claim upon which relief can be granted as to all claims brought against them by Plaintiffs Linda Sanders, Constance Adams and Cynthia Thirouin (collectively, Plaintiffs) the widow and stepchildren of William David Sanders, a teacher killed in the April 20, 1999 attack on Columbine High School. Oral argument would not materially assist in determination of the motions. After consideration of the motions, briefs and pertinent case law and for the following reasons, I grant the Rule 12(b)(6) motions.
I.
Facts
Plaintiffs allege that Columbine High School (Columbine) students Dylan Kle-bold and/or Eric Harris, both approximately 17 years of age, were co-conspirators in a plot and scheme to assault, terrorize and kill Columbine teachers and students. On April 20, 1999 at approximately 11:20 a.m., Klebold and Harris approached the school armed with multiple guns and other “weapons of destruction” including explosive devices. See Amended C/O, ¶ 3-4.
After shooting at people outside the school, the pair entered the school building and continued their deadly assault inside Columbine. Twelve students and teacher William Sanders were killed. Dozens of others were injured. Id. at ¶ 4.
In the aftermath of the massacre the police allegedly learned that Harris and Klebold were avid, fanatical and excessive consumers of violent ... video games ... [and] consumers of movies containing obscenity, obscenity fоr minors, pornography, sexual violence, and/or violence. Amended C/O ¶¶ 6-7. One movie the pah-viewed was “The Basketball Diaries” in which “a student massacres his classmates with a shotgun.” Amended C/O ¶ 7.
According to Plaintiffs, “but for the actions of the Video Game Defendants and the Movie Defendants, in conjunction with the acts of the other defendants herein, the multiple killings at Columbine High School would not have occurred.” Id. at ¶¶ 17, 32. Based on the foregoing, Plaintiffs filed this action on April 19, 2001.
II.
Claims and Defendants
Plaintiffs bring the following claims against Defendants:
1. Claim One for negligence and strict liability against Defendants Time Warner, Palm Pictures, Island Pictures, New Line Cinema and Polygram;
2. Claim Two for negligence and strict liability against Defendants Acclaim Entertainment, Inc., Activision, Inc., Apogee Software, Inc., Atari Corporation, Capcom Entertainment, Inc., EI-DOS Interactive; ID Software, Inc., In-fogrames, Inc., 1/k/a GT Interactive Software Corporation, Interplay Entertainment Corp., Midway Home Entertainment, Nintendo of America, Sega of America, Inc., and Sony Computer Entertainment America Inc.; Square Soft,Inc. d/b/a Square USA, Inc. and Virgin Entertainment Group, Inc.,
3. Claim Three for negligence and strict liability against Defendants Meow Media, Inc. d/b/a www.persiankitty.com and Network Authentication Systems, Inc. d/b/a www.adultkey.com and www.porntech.com; and
4. RICO activity by Defendants Meow Media, Inc. d/b/a www.persiankitty.com and Network Authentication Systems, Inc. d/b/a www.adultkey.com and www.porntech.com.
III.
Claims and Allegations
A. Claim One for Negligence and Strict Liability
Plaintiffs sue Defendants Time Warner, Palm Pictures, Island Pictures, New Line Cinema, and Polygram as the makers and distributors of “The Basketball Diaries.” Defendants Time Warner and Palm Pictures (Movie Defendants) filed Rule 12(b)(6) motions which I resolve in this Memorandum Opinion and Order.
According to Plaintiffs, in “The Basketball Diaries, the protagonist inexplicably guns down his teacher and some of his classmates in cold blood, among other acts of gratuitous violence.” Amended C/0 f 11. Purportedly, this had the effect of “harmfully influencing impressionable minors such as Harris and Klebold and of thereby causing the shootings.” Id. at ¶ 12.
B. Claim Two for Negligence and Strict Liability
Plaintiffs sue Defendants Acclaim Entertainment, Inc. (Mortal Kombat and Mortal Kombat II), Activision, Inc. (Wol-fenstein, Mech Warrior, Mech Warrior 2, and Nightmare Creatures), Apogee Software, Inc. (Wolfenstein and Doom), Atari Corporation (Doom), Capcom Entertainment, Inc. (Resident Evil), EIDOS Interactive (Final Fantasy), ID Software, Inc. (Quake and Doom), Infogrames, Inc. f/k/a GT Interactive Software Corp. (Doom), Interplay Entertainment Corp., (Redneck Rampage), Midway Home Entertainment (Quake and Doom), Nintendo of America (Nightmare Creatures), Sega of America, Inc. (Quake), Sony Computer Entertainment America (Final Fantasy), Square Soft, Inc. d/b/a Square USA, Inc. (Final Fantasy) and Virgin Entеrtainment Group, Inc. (Resident Evil) for manufacturing and/or supplying the designated violent video games allegedly frequently played by Harris and Klebold. See Am C/0 ¶¶ 20-21.
Video Game Defendants Acclaim Entertainment, Inc., Activision, Inc., Capcom Entertainment, Inc., EIDOS Interactive, ID Software, Inc., Infogrames, Inc. f/k/a GT Interactive Software Corp., Interplay Entertainment Corp., Midway Home Entertainment, Nintendo of America, Sony Computer Entertainment America, Inc., filed Rule 12(b)(6) motions addressed in this Memorandum Opinion and Order.
Plaintiffs allege that the Video Game Defendants manufactured and/or supplied to Harris and Klebold these video games which made violence pleasurable and attractive and disconnected the violence from the natural consequences thereof, thereby causing Harris and Klebold to act out the violence ... [and] trained [them] how to point and shoоt a gun effectively without teaching either of them any of the constraints, responsibilities, or consequences necessary to inhibit such an extremely dangerous killing capacity. Amended C/0 ¶¶ 25-25.
C.Claim Three for Negligence and Strict Liability and Claim Four for RICO Activity
Plaintiffs bring Claims Three and Four against Defendants Meow Media, Inc.
D. Allegations Common to the Movie and Video Game Defendants
The negligence and strict products liability Claims One and Two against the Movie and Video Game Defendants contain the following common allegations:
1. Defendants knew that copycat violence would result from the use of their products and materials. See Amended C/0 ¶¶ 16(a), 29(b);
2. Defendants knew that their products and materials created an unreasonable risk of harm because minors would be influenced by the effect of their products and materials and then would cause harm. See Amended C/0 ¶¶ 16(k), 29(h);
3. Defendants knew or should have known that their products and materials were in an unreasonably defective condition and likely to be dangerous for the use for which they were supplied. See Amended C/0 ¶¶ 16(v), 29(v); and
4. Defendants failed to exercise reasonable care to inform consumers of the dangerous condition of their products and materials or of the facts which made their products and materials likely to be dangerous. See Amended C/0 ¶¶ 16(i), 29(k).
5. Scientific research shows that children who witness acts of violence often tend to act more violently themselves and to sometimes recreate those violent acts. See Amended C/0 ¶ 13 (Movie Defendants); and
6. Massive volumes of scientific research show that children who witness acts of violence and/or who are interactively involved with creating violence or violent images often act more violently themselves and sometimes recreate the violence to which they have been exposed. See Amended C/0 ¶ 24 (Video Game Defendants).
IV.
Fed.R.Civ.P. 12(b)(6)
Under Rule 12(b)(6), a district court may dismiss a complaint for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Conley v. Gibson,
Fed.R.Civ.P. 12(b) provides that if matters outside the complaint are presented to and not excluded by the court, it should treat the motion to dismiss as a summary judgment motion. Fed.R.Civ.P. 12(b);
Carter v. Stanton,
Several Video Game Defendants and Movie Defendant Palm Pictures at
The Rule 12(b)(6) motions, briefs in support and briefs in opposition were filed before Plaintiffs filed their Amended Complaint as a matter of right. After careful review I conclude that further briefing is unnecessary. The motions and briefs before me can be fully applied to and resolved in light of the Amended Complaint.
V.
Claims Analysis
A. Negligence
Plaintiffs allege negligence in Claim One against the Movie Defendants and in Claim Two against the Video Game Defendants. Under Colorado law, to recover for the negligent conduct of another, a plaintiff must establish: 1) the existence of a legal duty owed to the plaintiff by the defendant; 2) breach of that duty; 3) injury to the plaintiff; and 4) actual and prоximate causation.
Leake v. Cain,
1. Duty
“The court determines, as a matter of law, the existence and scope of [any] duty....”
Metropolitan Gas Repair Serv., Inc. v. Kulik,
In resolving the threshold legal question whether the Video Game and Movie Defendants have a cognizable duty to the Plaintiffs, I consider: 1) foreseeability of the injury or harm that occurred; 2) the social utility of Defendants’ conduct; 3) the magnitude of the burden of guarding against the injury or harm; and 4) the consequences of placing the burden on the Defendants.
See Bailey v. Huggins Diagnostic & Rehabilitation Center,
The question whether a duty should be imposed in a particular case is “essentially one of fairness under contemporary standards — whether reasonable persons would recognize a duty and agree that it exists.”
Taco Bell, Inc. v. Lannon,
a. Foreseeability
The Colorado Supreme Court teaches that foreseeability is “based on common sense
Generally, under Colorado law a person has no responsibility to foresee intentional violent acts by others.
See Walcott v. Total Petroleum, Inc.,
In the circumstances alleged here, the Video Game and Movie Defendants likewise had no reason to suppose that Harris and Klebold would decide to murder or injure their fellow classmates and teachers. Plaintiffs do not allege that these Defendants had any knowledge of Harris’ and Klebold’s identities, let alone their violent proclivities. Nor, for that matter, did the Video Game and Movie Defendants have any reason to believe that a shooting spree was a likely or probable consequence of exposure to their movie or video games. At most, based on Plaintiffs’ allegations that children who witness acts of violence and/or who interactively involved with creating violence or violent images often act more violently themselves and sometimes recreate the violencе,
see
Amended C/O ¶ 24, these Defendants might have speculated that their motion picture or video games had the potential to stimulate an idiosyncratic reaction in the mind of some disturbed individuals. A speculative possibility, however, is not enough to create a legal duty.
See Davenport,
Although other courts have addressed this question, the Colorado courts have not had the occasion to consider foreseeability in the similar circumstances alleged here. Applying analogous foreseeability principles, two federal courts have rejеcted imposition of any such duty on video game makers and movie producers or their distributors. In
Watters v. TSR, Inc.,
More recently, in
James v. Meow Media, Inc.,
Courts around the country have rejected similar claims brought against media or entertainment defendants. In
Zamora v. Columbia Broadcasting System,
I find persuasive the reasoning set out in these cases. Consequently, I conclude under similar Colorado tort law, there is no basis for determining that violence would be considered the likely consequence of exposure to video games or movies. This factor weighs heavily against imposing a duty on the Movie and Video Game Defendants.
b. Social Utility of Defendants’ Conduct
Creating and distributing works of imagination, whether in the form of video games, movies, television, books, visual art, or song, is an integral component of a society dedicated to the principle of free expression.
See
U.S. CONST., amend. 1; COLO. CONST., art. 11, § 10 (“[n]o law shall be passed impairing the freedom of speech [and] that every person shall be free to speak, write or publish whatever he will on any subject”);
see also
U.S. CONST, art. I, § 8 (giving Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclu
Plaintiffs’ characterization of the Video Game and Movie Defendants’ creative works as “violent” does not alter the social utility analysis. In the context of ordering entry of a preliminary injunction against a city ordinance that limited minors’ access to violent video games, the Seventh Circuit observed, “[v]iolence has аlways been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low.”
American Amusement Mach. Ass’n v. Kendrick,
To shield children ... from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.
Id. at 577.
Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginаtive forms of entertainment even if they contain violence.
See Kendrick,
c. and d. Magnitude of the Burden of Guarding against Injury or Harm and Consequences of Placing the Burden on the Defendant
In
Bailey,
Colorado courts have repeatedly rejected efforts to impose overly burdensome and impractical obligations on defendants, including the obligation to identify potential dangers. This is especially so where those obligations would interfere with the social utility of a defendant’s conduct or
Given the First Amendment values at stake, the magnitude of the burden that Plaintiffs seek to impose on the Video Game and Movie Defendants is daunting. Furthermore, the practical consequences of such liability are unworkable. Plaintiffs would essentially obligate these Defendants, indeed all speakers, to anticipate and prevent the idiosyncratic, violent reactions of unidentified, vulnerable individuals to their creative works. As the Sixth Circuit recognized in Watters:
The defendant cannot be faulted, obviously, for putting its game on the market without attempting to ascertain the mental condition of each and every prospective player. The only practicable way of insuring that the game could never reach a “mentally fragile” individual would be to refrain from selling it at ah.
Id.
at 381;
McCollum,
In this case, Plaintiffs do not allege that the Video Game and Movie Defendants illegally produced or distributed the movie and video games Harris and Klebold allegedly viewed or played. Finding that these Defendants owed Plaintiffs a duty of care would burden these Defendants’ First Amendment rights to freedom of expression. These considerations compel the conclusion that makers of works of imagination including video games and movies may not be held liable in tort based merely on the content or ideas expressed in their creative works. Placing a duty of care on Defendants in the circumstances alleged would chill their rights of free expression. Therefore, these factors also weigh heavily against imposing a duty on Defendants.
All four factors weigh heavily against imposing a duty of care on Defendants. Consequently, I hold that the Video Game and Movie Defendants owed no duty to Plaintiffs as a matter of law. Thus, the Video Game and Movie Defendants are entitled to Rule 12(b)(6) dismissal of Plaintiffs’ negligence claims.
2. Causation
Even assuming a duty, the Video Game and Movie Defendants argue that they
To prevail on their negligence claim, Plaintiffs must show that Defendants’ tortious conduct proximately caused Mr. Sanders’ death.
See Leake,
Where the circumstances make it likely that a defendant’s negligence will result in injuries to others and where this negligence is a substantial factor in causing the injuries sustained, proximate causation is satisfied. The intervening or superseding act of a third party, in this case Harris and Klebold, including a third-party’s intentionally tortious or criminal conduct does not absolve a defendant from responsibility if the third-party’s conduct is reasonably and generally foreseeable.
See Ekberg v. Greene,
It is undisputed that Harris and Klebold murdered or injured the Columbine victims including Mr. Sanders. The issue is whether Harris’ and Klebold’s intentional criminal acts constitute a superseding cause of the harm inflicted by them, thus relieving the Movie and Vidеo Game Defendants’ of liability.
A superseding cause exists when: 1) an extraordinary and unforeseeable act intervenes between a defendant’s original tortious act and the injury or harm sustained by plaintiffs and inflicted by a third party; and 2) the original tortious act is itself capable of bringing about the injury. Just as foreseeability is central to finding that a duty is owed, it is also “the touchstone of proximate cause” and of the superseding cause doctrine.
Walcott,
I hold in this case that Harris’ and Klebold’s intentional violent acts were the superseding cause of Mr. Sanders’ death. Moreover, as I have determined, their acts were not foreseeable. Their criminal acts, therefore, were not within the scope of any risk purportedly created by Defendants. In this case as in
James v. Meow Media, Inc.,
I conclude as a matter of law that no reasonable jury could find that the Video Game and Movie Defendants’ conduct resulted in Mr. Sanders’ death in “the natural and probable sequence of events.”
See Loveless,
B. Strict Liability
Plaintiffs also assert strict liability in Claims One and Two. Plaintiffs allege that
Plаintiffs allege that these Defendants manufactured and/or supplied to Harris and Klebold video games:
[that] trained Harris and Klebold how to point and shoot a gun effectively without teaching either of them any of the constraints, responsibilities or consequences necessary to inhibit such an extremely dangerous killing capacity.
Amended C/O ¶¶ 25-26.
There is no allegation that anyone was injured while Harris and Klebold actually played the video games or watched “The Basketball Diaries.” The actual use of the movie and video games, then, did not result in any injury. Rather, Plaintiffs contend that Mr. Sanders’ death was caused by the way Harris and Klebold interpreted and reacted to the messages contained in the movie and the video games. So, any alleged defect stems from the intangible thoughts, ideas and messages contained within the movie and video games but not their tangible physical characteristics.
To recover on a theory of strict products liability under Colorado law, Plaintiffs must establish that the: 1) products are in a defective condition unreasonably dangerous to the user or consumer; 2) products were expected to and did reach Harris and Klebold without substantial change in the condition in which they were sold; 3) alleged defects caused Mr. Sanders’ death; 4) Video Game and Movie Defendants sold the product and are engaged in the business of selling products; and 5) Plaintiffs sustained damages as a result of the Video Game and Movie Defendants’ acts.
See Barton v. Adams Rental,
1. Definition of Product
Colorado’s products liability statute does not define the term “product.”
See
§ 13-21-401, C.R.S. Section 402A of the Restatement (Second) of Torts, adopted by the Colorado courts,
see e.g., Camacho v. Honda Motor Co.,
Colorado courts have not yet considered whether thoughts, images, ideas, and messages are “products” pursuant to the strict liability doctrine. Significantly, however, in considering whether to recognize a new tort recovery theory, the Colorado courts give great weight to the theory’s impact on free expression.
See Bailey,
To aid my anticipation as to how Colorado courts would resolve this question, I look to other jurisdictions which have addressed whether the content of video games and movies is a “product” for purposes of determining strict liability. In
Watters,
the Court reviewed existing pre
Plaintiffs argue that “intangibles” such as images, thoughts, ideas, and messages are products and “subject to strict liability [when] the ‘intangibles’ are sold to and consumed by the public.” Plaintiffs rely on
Comshare, Inc. v. United States,
In Comshare, a computer software company sued the government to obtain an income tax refund because the company had spent millions of dollars purchasing computer program source codes but had not been given a tangible property investment tax credit. See id. The Sixth Circuit held that Comshare was entitled to the tangible property tax credit because “the intangible information on Comshare’s master source code tapes and discs could not exist in usable form without the tangible medium.” Id. at 1149. In Advent Systems, a commercial transactions case, the Third Circuit held that once a computеr program is downloaded onto a diskette, it becomes a “good” under the Uniform Commercial Code. See id. at 675.
Contrary to Plaintiffs’ analysis, these holdings are inapposite because they do not discuss strict liability theories and are unrelated to products liability law. While computer source codes and programs may be construed as “tangible property” for tax purposes and as “goods” for commercial purposes, these classifications do not establish that intangible thoughts, ideas, and messages contained in computer video games or movies should be treated as products for purposes of strict liability.
Plaintiffs fail to appreciate the critical distinction between intangible properties and tangible properties for which strict liability can be imposed. The Ninth Circuit explained this distinction in
Winter v. G.P. Putnam’s Sons,
A book containing Shakespeаre’s sonnets consists of two parts, the material and the print therein, and the ideas and expression thereof. The first may be a product, but the second is not. The latter, were Shakespeare alive, would be governed by copyright laws; the laws of libel to the extent consistent with the First Amendment; and the laws of misrepresentation, negligent misrepresentation, negligence, and mistake. These doctrines applicable to the second part are aimed at the delicate issues that arise with respect to intangibles such as ideas and expression. Products liability law is geared to the tangible world.
Id. at 1034.
The reasoning of
Watters
and
Meow Media
is buttressed by the Restatement (Third) of Torts. Although Colorado courts have yet to adopt sections of Restatement (Third) of Torts, I predict that the Colorado Supreme Court, as it has often done in the past, will selectively adopt relevant sections in the Restatement
Based on the persuasive reasoning set out in Watters, James, Winter, and the Restatement (Third) of Torts, I hold that intangible thoughts, ideas, and expressive content are not “products” as contemplated by the strict liability doctrine.
2. Causation
Assuming arguendo that the strict liability doctrine could be extended to include the thoughts, ideas, images and messages contained in video games and movies, Plaintiffs nevertheless would be required to allege adequately causation in order to state a claim based on strict liability. As I have statеd, causation is trumped by an intervening act that constitutes a superseding cause. I determined as a matter of law that Harris’ and Kle-bold’s actions constituted a superseding cause which broke any chain of causation. See § V(A)(l)(a). Therefore, in the alternative, Plaintiffs’ strict liability claims fail for lack of causation.
C. First Amendment Considerations
1. Protection of Video Games
Relying on the following cases, Plaintiffs contend that video games are not protected by the First Amendment.
See America’s Best Family Showplace Corp. v. New York,
2. Brandenburg Test
Whether expressive content is protected under the First Amendment is subject to the test set forth in
Brandenburg v. Ohio,
The Brandenburg test is exacting. Other courts uniformly reject claims similar to thosе of Plaintiffs’ here. I reject Plaintiffs’ invitation to dilute the Brandenburg test in this case.
Plaintiffs contend that
Brandenburg
protects only “marginalized political speakers.”
See
Resp., p. 16. I disagree.
Bran
[T]he Supreme Court generally has not attempted to differentiate between different categories of protected speech for the purposes of deciding how much constitutional protection is required. Such an endeavor would not only be hopelessly complicated but would raise substantial concern that the worthiness of speech might be judged by majoritarian notions of political and social propriety and morality. If the shield of the First Amendment can be eliminated by proving after publication that an article discussing a dangerous idea negligently helped bring about a real injury simply because the idea can be identified as “bad,” all free speech becomes threatened. An article discussing the nature and danger of “crack” usage — or of hang-gliding — might lead to liability just as easily. As is made clear in the Supreme Court’s decision in Hess, the “tendency to lead to violence” is not enough.
Id. at 1024.
Alternatively, Plaintiffs argue that
Brandenburg’s
imminence requirement is met by the advocacy of illegal action “at some future time.... ”
See
Resp., p. 17. This argument is contrary to binding precedent. “The First Amendment does not permit someone to be punished for advocating illegal conduct at some indefinite future time.”
National Gay Task Force v. Board of Education,
Plaintiffs rely also on
Rice v. Paladin Enterprises, Inc.,
[it] not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them ‘upon receipt,’ and that it in fact assisted [the murderer] in particular in the commission of the murders [at issue].
Id. at 242. Largely based on this stipulation, the Rice Court reached the narrow holding that civil liability for aiding and abetting criminal conduct is constitutionally permissible where a publisher “has the specific purpose of assisting and encouraging commission of such conduct and the alleged assistance and encouragement takes a form other than abstract advocacy.” Id. at 243.
Plaintiffs’ Complaint is devoid of any allegation that the Movie and Video Game Defendants had any intent, let alone a specific intent, to assist and encourage anyone to engage in acts of criminal violence. Moreover,
Rice
distinguished the “copycat” theory presented here, where “someone imitates or ‘copies’ conduct ... described or depicted in their broadcasts, publications, or movies.”
Id.
at 265. The
Rice
Court stated that “it will presumably never be the case that the broadcaster or publisher actually intends” to assist or encourage a crime. Consequently “an infer
Plaintiffs do not discuss compliance with
Brandenburg’s
second requirement that the speech at issue must be “likely” to produce imminent lawless action.
See Brandenburg,
3. Restriction of the First Amendment Rights of Children
Next, Plaintiffs contend that even if video games invoke First Amendment protections, the right to free speech of children may be restricted in а reasonable manner. I disagree.
It is well-established that
Brandenburg
remains the applicable standard even where the individual allegedly incited to commit unlawful acts is a minor.
See e.g. Miller v. California,
Assuming the State of Colorado has a compelling interest in broadly extending its tort law to protect the physical and psychological well-being of minors, the restriction must be “narrowly tailored” to serve that compelling interest in order to withstand First Amendment scrutiny.
See Reno v. ACLU,
Plaintiffs’ theory fails the narrow tailoring test because it is not limited to the protection of minors. It would apply even when an adult allegedly cоmmits violence in response to video games or movies. Thus, adults’ access to movies and video games would be restricted as well. The theory is, as a matter of law, overbroad.
See Reno,
Furthermore, because the Movie and Video Game Defendants cannot possibly control who gains access to their games and movies, they could avoid liability under Plaintiffs’ theory only by ceasing production and distribution of their creative works.
See Watters,
VI.
Conclusion
A. Negligence Claims
Plaintiffs’ negligence claims fail because as a matter of law the Video Game and Movie Defendants owed no duty to Plaintiffs or Mr. Sanders. In the alternative, Plaintiffs’ negligence claims cannot stand because Harris’ and Klebold’s actions on April 20, 1999 were a superseding cause of Mr. Sanders’ death.
B. Strict Liability Claims
Plaintiffs’ strict liability claims against the Video Game and Movie Defendants fail as a matter of law because the intangible thoughts, ideas, images, and messages contained in “The Basketball Diaries” and video games allegedly played by Harris and Klebold are not products as required by the strict liability doctrine. Further
C. First Amendment
Plaintiffs’ negligence and strict liability claims fail the Brandenburg test.
Accordingly, IT IS ORDERED that:
1. the Fed.R.Civ.P. 12(b)(6) motions to dismiss Claim One for negligence and Claim Two for strict liability filed by Defendants Time Warner, Inc. and Palm Pictures are GRANTED;
2. the Fed.R.Civ.P. 12(b)(6) motions to dismiss Claim One for negligence and Claim Two for strict liability filed by the following Defendants are GRANTED:
a. Acclaim Entertainment, Inc.;
b. Activision, Inc.;
c. Capcom Entertainment, Inc.;
d. EIDOS Interactive;
e. ID Software, Inc.;
f. Infogrames, Inc. f/k/a GT Interactive Software Corporation;
g. Interplay Productions, Inc.;
h. Midway Home Entertainment;
i. Nintendo of America;
j. Sony Computer Entertainment America, Inc.; and
k. Square Soft, Inc. d/b/a Square USA, Inc.
3. Claims One and Two are DISMISSED as to the above named Defendants; and
4. upon submission of a bill of costs within 10 days from the date judgment enters, the above named Defendants are granted costs.