Entertainment & Entrepreneurship

In a panel discussion on May 4, 2010, Google announced to the imminent launch of Google Editions, its system for selling digital books.  As reported by the Wall Street Journal, Chris Palma, Google's manager for strategic-partner development, explained that Google Editions will be reader independent so that the books will read on a variety of devices. More importantly, it will allow book retailers to sell through Google Editions on their own websites, "giving partners the bulk of the revenue" according to the Journal article.

The potential for retailers or vertically integrated publisher-retailers to sell directly without the intervention of Amazon or Apple will make Google's entry into the digital book market very significant for the consumer. University bookstores can reconceptualize the course pack with a digital download package keyed to each course section number. A student needs only plug in the course and instructor (or the section number) and the required and recommended texts will be available for the student. Simple, easy and branded for the college experience.

I have previously written extensively about the issues faced by Google this past year in its strategic planning. (See -

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Jon M. Garon, Wiki Authorship, Social Media and the Curatorial Audience, 1 Harv. J. Sports & Ent. Law 95 (2010).

Wikis have become an important source of information and a go-to destination on the Internet. The shared authorship and social editing represent an increasingly influential model for content creation and dissemination, which will continue growing in prominence for education, training, newsgathering and entertainment.

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In a recent post, I discussed the rather anemic FTC report on voluntary parental ratings and suggested that better standards are needed. The FTC has provided a much more pointed report on the concerns for virtual worlds, particularly regarding sexually explicit content in these worlds. The FTC Virtual World report includes the startling finding that "some virtual worlds designed for teens and adults allow – or even encourage – younger children to get around the worlds’ minimum age requirements."

Part of the difference between the two reports stems from the difference between sex and violence - sex can be obscene and is much more the focus of regulation. Violence is somehow more permissible in U.S. content. But sexually explicit material seems to pose a more obvious danger to children, particularly the youngest children. And sexual content comes from peer-to-peer interactions as much as from the creators of content, a more insidious form of abuse for the participant.

The findings, then are not surprising. The companies involved in virtual worlds are less responsive than their motion picture, video game and music counterparts. The voluntary efforts are less effective and more actively undermined by the companies in the field. This is certainly not true of every company and those who do well should be recognized. Parents should know more about their children's online activities and respond to those companies that intentionally cheat.

Ten-year-olds are told by their peers how to get past the controls on Facebook. (I know - it is amazing what the children in the back of the car will say, when the driver just listens without participating.) But the same behavioral advertising tools that allow vendors to know exactly when to send the birthday card seem never to be used to say "are you really three years older than you were when you signed up for the birthday club?"

The tools are available. A parent-centered behaviorial advertising model should be available to protect our children - even from themselves.

Does this sound like a First Amendment advocate has lost his focus now that his children are of that age? Not really. I'm not calling for virtual world police. But I am calling on the advertisers and publishers to give me tools to make my job easier and create presumptions of protection rather than presumptions of predatory conduct.

The default rules need to be designed to protect families; family profiles should enable computers to know who uses machines, so that when an under-age child logs on, the check against the family profile posted by me to my computer stops my child from lying about his age or at least sends me an e-mail asking if this is correct. The FTC also suggests that better language screening tools be employed for these sites and provides more suggestions.

Finally and perhaps most importantly, the 13-year-old line should not become the line of majority. Most of these sites should be adult-only sites. College students do not hang out with high school and junior high school students at dances or at the mall; neither should they do so online. Make sites more age specific. This may not necessarily 'clean up' high school virtual worlds, but it will at least separate out the activities among the peer groups.

More from the FTC:

“It is far too easy for children and young teens to access explicit content in some of these virtual worlds,” said FTC Chairman Jon Leibowitz. “The time is ripe for these companies to grow up and implement better practices to protect kids.”

The FTC surveyed 27 online virtual worlds – including those specifically intended for young children, worlds that appealed to teens, and worlds intended only for adults. The FTC found at least one instance of either sexually or violently explicit content in 19 of the 27 worlds. The FTC observed a heavy amount of explicit content in five of the virtual worlds studied, a moderate amount in four worlds, and only a low amount in the remaining 10 worlds in which explicit content was found.

Of the 14 virtual worlds in the FTC’s study that were, by design, open to children under age 13, seven contained no explicit content, six contained a low amount of such content, and one contained a moderate amount. Almost all of the explicit content found in the child-oriented virtual worlds appeared in the form of text posted in chat rooms, on message boards, or in discussion forums.

The Commission observed a greater amount of explicit content in worlds that were geared towards teens or adults. Twelve of the 13 virtual worlds in this category contained explicit content, with a heavy amount observed in five worlds, a moderate amount in three worlds, and a low amount in four worlds. Half the explicit content found in the teen- and adult-oriented virtual worlds was text-based, while the other half appeared as graphics, occasionally with accompanying audio.

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The FTC recently published its seventh report focusing on "violent entertainment products" that are available to children. The report focuses on the motion picture, music, and video game industries.  It reports generally good self-enforcement of the purchasing guidelines. Of course, at 80%, one of five attempted purchases goes through without objection. Toys-R-Us is singled out for even worse enforcement: "The Commission’s undercover shop found that retailers are strongly enforcing age restrictions on the sale of M-rated games, with an average denial rate of 80%. Only Toys ‘R’ Us lags far behind on enforcement (56%)." So the first lesson of the report is that otherwise savvy tweens who would rather not be caught dead in the Giraffe's den of lame childhood wonder, is that they can at least stop by to pick up the goods other stores won't sell.


The in-store enforcement does little to stop those non-adults with access to online accounts and gift cards to purchase anything they want without limit. The role of the store cashier has changed from that of gatekeeper to the monitor light on a freeway on-ramp. They moderate traffic flow, but will not stop the consumption.

I don't suggest that the non-adult ratings should be anything more than advisory for parent. On the other hand, I disagree with the line of court decisions which suggest that obscene material must be sexual to be obscene. Even under the auspices of the First Amendment, a society can identify that content which is so far beyond the acceptability on depictions of violence that the material is beyond First Amendment protection. This, along with requirements that any such obscenity label, must be fully adjudicated before any police action can take place against the content, should give states the right to declare ultra-violent material as obscene. Like sexual obscenity cases, the actual cases should be rare and the evidence 'beyond a reasonable doubt' because of the potential criminal enforcement.

Without the ability to identify content as obscene, the parental guidelines do little to manage content. They provide some helpful information for our under age and adult consumers. They are like food labels. They make us feel guilty after we have binged, but probably have little impact on what we actually consume unless we individually choose to follow them.

I look forward to next year's report. It is nice to know some things won't change.

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The Pew Internet & American Life Project provides an excellent array of surveys and empirical data of the development of online media and its societal influence. The Project has covered music, teen behavior, election fundraising, the digital divide, and a host of issues.

One of their more interesting projects comes out next week. On, Monday, June 15th, it will report "The State of Music Online: Ten Years After Napster."

From the Project release:

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Europe is headed for an internal culture clash as French politicians endorse an industry-backed proposal to battle online piracy by barring people who repeatedly download illegal content. Known as three-strikes laws, the proposed policies would allow an ISP to remove customers who have repeatedly ignored notices to stop illegal downloading.

The French proposal is more circumspect than some similar proposals in the U.S., though it is often described as more far reaching. As a law, the system has some procedural safeguards in place to provide for a hearing prior to the enforcement of the provision. At the same time, if enacted the rule will be positive law rather than merely a policy of a particular Internet provider. Potentially, this gives its adoption a much more powerful impact.

Even as France is moving in this direction, the European Parliament is moving to ban such laws. In fact, the EU went a significant step further, adding language stating that "internet access is a fundamental right such as the freedom of expression and the freedom to access information."

Despite my deep concerns over Internet piracy and its real impact on jobs in the U.S. and development of new artistic works in the U.S. and abroad, the Internet has simply become too integrated into the public's access to news, governmental services, and social interactions to adopt this policy approach.

Increasingly, government documents, public records, and other essentials are available only on the Internet. The Internet is an essential tool used by most educational institutions. Arguably those cut off from their ISP can rely on public libraries for their access, but those cut-off without water and electricity can also be directed to public shelters.

The question is not whether shutting off the ISP is appropriate, but whether it should be done without some significant oversight. To the extent that the French proposal requires an administrative hearing, such a system might work. To be viable, such a hearing must put the burden on the ISP to demonstrate that the person abusing the ISP is guilty of the misconduct and allow for the accused misuser of the ISP to enter evidence in his or her defense.

In the modern information age, the ISP has taken on the role of a public utility, and like electric companies, water suppliers and gas companies, the utility should have a heavy burden before it cuts users off. Also, the ban must be limited in time. The British proposal, for example, caps the ban at one year. Three  months would probably be sufficient for a first time offender unless the specifics were egregious.

The present proposals in the U.S. call for ISPs to control and regulate their users. This allows for none of the critical safeguards. The time-frame in which ISPs could have privately operated a three-strikes policy in the U.S. has probably passed. While Internet access has not been declared a fundamental right in the U.S., most of the public treats the Internet like a utility and any attempt to take self help will likely result in some form of utilities regulation.

The debate on this issue may continue for quite a while, but as the implications of a three-strikes policy gain attention, the popularity of this solution will likely erode.

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Having previously posted on the demise of the print newspaper, in March, I discussed the recommendation that newspapers give away book readers as part of subscription contracts. (In fact, I went further, urging pharmacies to brand the readers, put in applets to remind/confirm daily medication schedules, and give them to their heavy users as a way to improve medical delivery.)



There are two surprises in the most recent announcement. First is the speed with which Amazon is scheduling the creation and obsolescence of its reader formats. I have often been impressed with Amazon's use of social networking for reader feedback and both impressed and concerned regarding its vertical integration of self-publishing, but the realization that it must move from format to format in a few month will press all other developers in the field. If Amazon has a real shipping date for the new device, it will steal the serve from News Corp and Hearst, leaving the media publishers behind yet again.

The other surprise comes from the competing technology to digital ink, namely the netbook market. Apple has decried the netbook market, labeling it "junk." At the same time, however, reports have Apple in talks with Verizon Wireless regarding a large-format iPhone. Not precisely a netbook, not precisely a book reader, but potentially a new format ideally suited to the market.


The battle between Apple and Amazon will focus on the most valuable publishing space - student desktops. Newspapers may be fading, novels are entertainment, but highschool and college students consume millions of dollars in very expensive and very cumbersome print products.

While serving as a law school dean, I tried to advocate switching our materials to digital formats using netbooks. While I like netbooks very much, Apple is right - they simply did not deliver the necessary quality at a price to make the system work. The large-format digital book or iPhone will solve the problem. And Apple has some advantages. Students care less about the eye fatigue, they want color, and they want a fast browser. Moreover, since both devices are based on wireless phone networks, they free the academic institutions from the bandwidth problems of laptops. Students and schools have both been waiting for these technologies.

I expect Pearsons and other educational publishers to be scrambling to make themselves relevant. Ubiquitious classroom tablets will further energize social authorship of school texts. An academic Wikipedia on a classroom tablet will transform the market. It is too early to know whether Apple or Amazon will dominate, but everybody else has a lot of cramming ahead if they hope to catch up.

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I have had the pleasure this past week to be traveling in Israel, lecturing at Hebrew University and touring the country. As part of the trip, I have been trying to get a better understanding of both Israel's intellectual property laws and its approach to technology.

Recently, David Shankbone wrote a blog entitled "In the Israeli desert there is life." Shankbone described some of the efforts in the Negev desert to lower barriers for solar power use. He mentioned the Jacob Blaustein Institutes for Desert Research, "where some of the world's leading solar energy and water research is conducted" and the Ben-Gurion National Solar Energy Center (home of the world's largest solar dish). Shankbone identifies one of the driving forces behind Israel's push for solar energy is a political independence from oil. Shankbone does not specifically mention the geopolitical ramifications of cheap solar power would be a reshaping of the power politics within the Middle East.

Also today, I visited the Herzl Museum with my family. This interactive museum and movie provided an excellent introduction to the father of Zionism and the Nineteenth century vision of the Jewish state. At the end of the film, a projection of Herzl acknowledged that Israel continues to struggle to win peace with its neighbors and reconcile its relationship with Arabs both inside and outside the nation. But the Herzl personification also described the tremendous technological innovations of Israeli industry and the role Israel is playing in draught relief, food production, power infrastructure and communications as assistance for African nations and leadership around the world.

Thinking about the role of technological innovation as a diplomatic tool occurs too infrequently. The Ben-Gurion National Solar Energy Center reportedly reinvests all proceeds from its solar technology into research to further the efficiency and cost reductions needed to make the solar power available to people all over the world. It reminds me of Benjamin Franklin's decision to eschew the patent for his high-efficiency wood stove as a public benefit. The choice was highly regarded and earned him adoration.

In the same way, Israel's technological innovation makes it a leader among industrial nations. More importantly, its focus on clean water, renewable energy and other problems of the third world create the opportunity for the nation to improve the quality of human life around the globe. Such successes rarely earn headlines and the impact may be hard to measure. Nonetheless, it is a lesson in IP diplomacy that all countries should follow.

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I am a big fan of the book Nudge by Richard H. Thaler Cass R. Sunstein. The book highlights the way in which social architecture - everything from how questions are phrased to default rules shape our behavior.

The Chronicle of Higher Education today reported on a very effective "nudge" example. According to the article, Students Stop Surfing After Being Shown How In-Class Laptop Use Lowers Test Scores, "professors increasingly frustrated by students who use laptops for non-class activities--like updating their Facebook pages--may be heartened by news from the University of Colorado at Boulder. A professor there has found that educating students about the negative effect that frivolous laptop use has on their performance reduces class time spent going walkabout on the Web."

Engingeering Associate Professor Diane Sieber "identified 17 students in one of her classes who were using laptops most frequently. After the first test, she told them that they did 11 percent worse, on average, than their peers who did not have their faces in their computers as much."

When the default position was that all uses of the laptop were accepted, students used them for everything. When students were educated regarding the appropriate uses and warned of the intrinsic consequence of the laptop misuse - the misuse declined.

Professor Sieber did not bar the laptops, but in Nudge's terms used "libertarian paternalism" to educate the students on the effect of their behavior and give them the opportunity (but not the obligation) to expect better behavior.

There are many examples (just read the book). But the application to both technology norms and educational defaults will fill many new books to come.

See www.nudges.org for some of the newest applications. 

 

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