Case No. MUL-2016-328715-1
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919 Third Avenue
New York, NY 10022
Dear Ms. [ ]:
This responds to your request dated March 25, 2016, and supplemental correspondence dated May 9, 2016 and May 20, 2016 (collectively, the “Application”), to the Office of Foreign Assets Control (OFAC), on behalf of Take-Two Interactive Software, Inc. (“Take-Two”), requesting guidance regarding the scope of items eligible for the information or informational materials exemption under OFAC-administered sanctions. Specifically, you request confirmation that video games are covered under the information or informational materials exemption present in the International Emergency Economic Powers Act, 50 U.S.C. § 1702(b)(3), as reflected in numerous OFAC sanctions regulations. See, e.g. section 560.210(c) of the Iranian Transactions and Sanction Regulations (ITSR), 31 C.F.R. Part 560. You assert that video games that are fully created and in...
1) Background
As discussed at length in section 6 of Notes Common to the "Information or informational materials" Definitional Provision, there has been a long-ambiguous relationship between the definition of “information and informational materials” and “software,” more specifically as it relates to the types of software that qualify for the exemption. As it relates to video games in particular, it is clear from the Legislative History of the original 1989 Berman Amendment and subsequent 1994 broadening thereof that the term “Information or informational materials” was designed to track the First Amendment. According to the Conference Report accompanying the 1994 amendment to the Berman Amendment, the original Berman Amendment was designed to cover “information that is protected under the First Amendment to the U.S. Constitution,” while the amendment was designed to ensure that the exemption applies “without regard to the type...