Law and Information

Almost synchronously with the release of Born Digital in the U.S., the Swiss conservative party CVP has made headlines with a position paper that outlines actions to proactively deal with the problems associated with online aggression in Switzerland. The strategy proposed by the conservative party focuses on youth and addresses Internet violence (including cyberbullying) in general and violent games in particular. Among the measures suggested in the position paper are:

• Introduction of a nation-wide, harmonized rating and classification system for movies, games and MMS services, analogous to the Dutch NICAM model;
• Amendment of the Swiss Penal Code, sec. 135, in order to ban the sale and making available of games with violent or (other) adult content to children and teenagers;
• Incorporation of a federal Media Competence Center for electronic media that would administer the classification system, run information and prevention campaigns to educate parents, teachers, etc., and study online addiction, among other things;
• Commission and release of a study on cyberbullying by the Swiss Federal Council;
• Formalized collaboration among the Swiss cantons in order to protect youth from violent content;
• Mandatory inclusion of media literacy classes into the curriculum at public schools (including sessions on the effects of extensive use of media);
• Information campaign to educate parents and teachers;
• Conversations between teachers and parents in cases of under-performance of school children due to excessive media usage.

We’ve discussed several of these strategies in Born Digital, chapter 9. The summary paragraph of our analysis reads as follows:

The best regulators of violence in our society, whether online or not, are parents and teachers, because they are the people closest to Digital Natives themselves. Parents and teachers have the most time with kids—and, ideally, their trust. As in other contexts, parents and teachers need to start by understanding what their Digital Natives are up to. From there, it’s important to set limits, especially for young children, on gaming and exposure to violent activities. Parents and educators can and should work overtime to channel the interest of Digital Natives in interactive media into positive directions. But companies need to step up, too, and to exercise restraint in terms of what they offer kids. And despite the hard free-speech questions implicated by these kinds of interventions, the government needs to be involved, too. As we’ve emphasized throughout the book, the answer isn’t to shut down the technologies or reactively to blame video games for every tragedy, but rather to teach our kids how to navigate the complex, fluid environments in which they are growing up. That’s easier said than done, but we don’t have much choice but to take this problem head on. The stakes could not be higher

With regard to the role of governments – also in the current debate about the Swiss party’s position paper the most controversial issue –, we write:

Governments can play a role through educational efforts, whether via schools or at the level of general public awareness. Governments can also help to foster collaborative efforts by public and private parties to work to reduce unwanted exposure by young kids to extreme violence. The Safer Internet Plus program, sponsored by the European Commission, is one such initiative that combines a series of helpful educational and leadership functions by governments. If all else fails, governments should restrict the production and dissemination of certain types of violent content in combination with instituting mandatory, government-based ratings of these materials. The production and distribution of extreme types of violent content—including, for instance, so-called snuff movies, in which people are filmed being killed—can and should be banned by law. Similar restrictions on access to such materials, based on age ratings, are in place in Germany, the United Kingdom, Canada, and Australia, among other places. These types of controls must be very narrowly tailored to pass constitutional muster in the United States, appropriately enough, given the force and breadth of First Amendment protections. We already have most of the legal tools needed to mitigate the effects of this problem, but rarely are these tools use effectively across the relevant platforms that mediate kids’ exposure.

Interestingly, the position paper presented by the Swiss CVP (disclosure: of which I am not a member) is getting pretty close to what we have envisioned in Born Digital. Obviously though, devil is in detail, and the proposal by the CVP has to be analyzed in much greater detail over the weeks and months to come. In any event, CVP certainly deserves credit for starting a public conversation about violence in the digital society and for making a strong case that we all share responsibility.

John Palfrey and I are getting tremendously helpful feedback on the draft v.0.9 of our forthcoming book Born Digital (Basic Books, German translation with Hanser) from a number of great students at Harvard and St. Gallen Law School, respectively. Last week, John and I had an inspiring conversation about the current draft with our first readers on this side of the Atlantic: a small, but great and diverse group of law students here at www.unisg.ch. The students, coming from Switzerland, Germany, France, Singapore, and the U.S., were kind enough to share their feedback with us based on reaction papers they’ve drafted in response to assigned book chapters.

Today, the second session took place. John and I are currently revisiting the final chapter of the book. The “final” chapter, of course, is by no means “final” – even not if it once becomes a chapter of the printed book. What we’re trying to do is simply to synthesize some of the things we’ve said so far, and to look ahead once again and ask ourselves how the digital world will look like for our kids given the things we know – and we don’t know – about their digital lives. In this spirit, the last chapter of the book in particular is an open invitation to join the discussion about the promises and challenges of the Internet for a population that is born digital. Against this backdrop, we prepared three discussion questions for today’s session here in St. Gallen.

First, what do you think is the greatest opportunity for Digital Natives when it comes to digital technologies? Second, what are you most concerned about when thinking about the future of the Internet? Third, what approach – generically speaking – seems best suited to address the challenges you’ve identified?

Here are the students’ thoughts in brief:

Greatest opportunities:

• Democratizing effect of the net: DN can build their own businesses without huge upfront investments (Rene, Switzerland)
• ICT enables networking among people across boundaries (Catrine, Switzerland)
• Encourages communication among DNs (Pierre-Antoine, France)
• Increased availability of all kind of information, allows fast development and sharing ideas among DNs (Jonas, Germany)
• Availability of information, DN can go online and find everything they’re looking for; this shapes, e.g., the way DNs do research; as a result, world becomes a smaller place, more common denominators in terms of shared knowledge and culture (Melinda, Switzerland)
• Efficiency gains in all areas, including speed of access, spread of ideas, … (Eugene, Singapore)

Greatest challenges, long-term:

• Problem of losing one’s identity – losing cultural identity in the sea of diversity (Eugene, Singapore)
• Dependency on technology and helplessness when not having the technology available; DNs are becoming dependent on technology and lose ability to differentiate b/w reality and virtuality; other key challenge: bullying (Melinda, Switzerland)
• Who will get access to the digital world – only the wealthy kids in the West or others, too? Digital divide as a key problem (Jonas, Germany)
• Addiction: DNs are always online and depend so much on Internet that it maz lead to addictive behavior (Pierre-Antoine, France)
• DNs can’t distinguish between offline and online world, they can’t keep, e.g. online and offline identities separate (Catrine, Switzerland)
• Notion of friendship changes; DNs might forget about their friends in the immediate neighborhood and focus solely on the virtual (Rene, Switzerland)

Most promising approaches:

• Teach digital natives how to use social networks and communicate with each other; law, in general, is not a good mode of regulation in cyberspace (Rene, Switzerland)
• Technology may often provide a solution in response to a technologically-created problem like, e.g., privacy intrusion (Catrine, Switzerland)
• Don’t regulate too much, otherwise people won’t feel responsible anymore; education is key, help people to understand that it’s their own responsibility (Pierre-Antoine, France)
• The laws that are currently in place suffice (except in special circumstances); learning is key, but who shall be the teacher (since today’s teachers are not DNs)? (Jonas, Germany)
• Generic legal rules are often not the right tool, problems change too fast; instead, kids need general understanding of how to handle technology; goal could be to strengthen their personality in the offline world so that they can transfer their confidence, but also skills to the online world (Melinda, Switzerland)
• Technology will most likely help DNs to solve many of the problems we face today; education is the basis, but focus needs to be on the question how to put education from theory into practice (Eugene, Singapore)

As always, we were running short in time, but hopefully we can continue our discussion online. Please join us, and check out our project wiki (new design, many thanks to Sarah!), our new DN blog, or for instance our Facebook group. John, our terrific team, and I are much looking forward to continuing the debate!

Today, I attended a small, but really interesting conference chaired by my colleagues Professor Werner Wunderlich und Prof. Beat Schmid from the Institute for Media and Communication Management, our sister institute here at the Univ. of St. Gallen. The conference was on “The Future of the Gutenberg Galaxy” and looked at trends and perspectives of the medium “book”. I’ve learned a big deal today about the current state of the book market and future scenarios from a terrific line-up of speakers. It was a particular pleasure, for instance, to meet Prof. Wulf D. von Lucus, who’s teaching at the Univ. of Hohenheim, but is also the Chairman of the Board of Carl Hanser Verlag, which will be publishing the German version of our forthcoming book Born Digital.

We covered a lot of terrain, ranging from definitional question (what is a book? Here is a legal definition under Swiss VAT law, for starters) to open access issues. The focus of the conversation, though, was on the question how digitization shapes the book market and, ultimately, whether the Internet will change the concept “book” as such. A broad consensus emerged among the participants (a) that digitization has a profound impact on the book industry, but that it’s still too early to tell what it means in detail, and (b) that the traditional book is very unlikely to be substituted by electronic formats (partly referring to the superiority-of-design-argument that Umberto Eco made some time ago).

I was the last speaker at the forum and faced the challenge to talk about the future of books from a legal perspective. Based on the insights we gained in the context of our Digital Media Project and the discussion at the forum, I came up with the following four observations and theses, respectively:

Technological innovations – digitization in tandem with network computing – have changed the information ecosystem. From what we’ve learned so far, it’s safe to say that at least some of the changes are tectonic in nature. These structural shifts in the way in which we create, disseminate, access, and (re-)use information, knowledge, and entertainment have both direct and indirect effects on the medium “book” and the corresponding subsystem.

Some examples and precursors in this context: collaborative and evolutionary production of books (see Lessig’s Code 2.0); e-Books and online book stores (see ciando or Amazon.com); online access to books (see, e.g., libreka, Google Book Search, digital libraries); creative re-uses such as fan fiction, podcasts, and the like (see, e.g., LibriVox, Project Gutenberg, www.harrypotterfanfiction.com).

Law is responding to the disruptive changes in the information environment. It not only reacts to innovations related to digitization and networks, but has also the power to actively shape the outcome of these transformative processes. However, law is not the only regulatory force, and to gain a deeper understanding of the interplay among these forces is crucial when considering the future of books.

While fleshing out this second thesis, I argued that the reactions to innovations in the book sector may follow the pattern of ICT innovation described by Debora Spar in her book Ruling the Waves (Innovation – Commercialization – Creative Anarchy – Rules and Regulations). I used the ongoing digitization of books and libraries by Google Book Search as a mini-case study to illustrate the phases. With regard to the different regulatory forces, I referred to Lessig’s framework and used book-relevant examples such as DRM-protected eBooks (“code”), the use of collaborative creativity (“norms”), and book-price fixing (“markets”) to illustrate it. I also tried to emphasis that the law has the power to shape each of the forces mentioned above in one way or another (I used examples such as anti-circumvention legislation, the legal ban on book-price fixing, and mandatory copyright provisions that preempt certain contractual provisions.)

The legal “hot-spots” when it comes to the future of the book in the digital age are the questions of distribution, access, and – potentially – creative re-use. The areas of law that are particularly relevant in this context are contracts, copyright/trademark law, and competition law.

Based on the discussion at the forum, I tried to map some of the past, current, and emerging conflicts among the different stakeholders of the ecosystem “book”. In the area of contract law, I focused on the relationship between authors and increasingly powerful book publishers that are tempted to use their unequal bargaining power to impose standard contracts on authors and transfer as many rights as possible (e.g. “buy out” contracts).

With regard to copyright law, I touched upon a small, but representative selection of conflicts, e.g. the relation between right holders and increasingly active users (referring to the recent hp-lexicon print-version controversy); the tensions between right holders and (new) Internet intermediaries (e.g. liability of platforms for infringements of their users in case of early leakage of bestsellers; e.g. interpretation of copyright limitations and exemptions in case of full-text book searches without permission of right holders); the tension between publishers and libraries (e.g. positive externalities of “remote access” to digital libraries vs. lack of exemptions in national and international copyright legislation – a topic my colleague Silke Ernst is working on); and the tension between right holders and educational institutions (with reference to this report).

As far as competition law is concerned, I sketched a scenario in which Google Book Search would reach a dominant market position with strong user lock-in due to network effects and would decline to digitize and index certain books or book programs, for instance due to operational reasons. Based on this scenario, I speculated about a possible response by competition law authorities (European authorities in mind) and raised the question whether Google Book Search could be regarded, at some point, as an essential facility. (In the subsequent panel discussion, Google’s Jens Redmer and I had a friendly back-and-forth on this issue.)

Not all of the recent legal conflicts involving the medium “book” are related to the transition from an analog/offline to a digital/online environment. Law continues to address book-relevant issues that are not new, but rather variations on traditional doctrinal themes.

I used the Michael Baigent et al. v. Random House Group decision by the London’s High Court of Justice as one example (has the author of Da Vinci Code infringed copyright by “borrowing” a theme from the earlier book Holy Blood, Holy Grail?), and the recent Esra-decision by the German BVerfG as a second one (author’s freedom of expression vs. privacy right of a person in a case where it was too obvious that the figure used in a novel was a real and identifiable person and where intimate details of the real person were disclosed in the book.)

Unfortunately, we didn’t have much time to discuss several interesting other issues and topics that were brought up and related to the generation born digital and its use of books – and the consequences of kids’ changed media usage in a changed media environment, e.g. with regard to information overload and the quality of information. Topics, to be sure, that John Palfrey and I are addressing in our forthcoming book.

In sum, an intense, but very inspiring conference day.

Update: Dr. David Weinberger, among the smartest people I’ve ever met, has just released a great article on ebooks and libraries.

Here in Ottawa, I had the pleasure to speak at the OECD Technology Foresight Forum of the Information, Computer and Communications Policy Committee (ICCP) on the participative web – a forum aimed at contributing to the OECD Ministerial Meeting “The Future of the Internet Economy” that will take place in Seoul, Korea, in June 2008.

My remarks (what follows is a summary, full transcript available, too) were based on our joint and ongoing Harvard–St.Gallen research project on Digital Natives and included some of the points my colleague and friend John Palfrey and I are making in our forthcoming book “Born Digital” (Basic Books, 2008).

I started with the observation that increased participation is one of the features at the very core of the lives of many Digital Natives. Since most of the speakers at the Forum were putting emphasis on creative expression (like making mash-ups, contributing to Wikipedia, or writing a blog), I tried to make the point that participation needs to be framed in a broad way and includes not only “semiotic democracy”, but also increased social participation (cyberspace is a social space, as Charlie Nesson has argued for years), increased opportunities for economic participation (young digital entrepreneurs), and new forms of political expression and activism.

Second, I argued that the challenges associated with the participative web go far beyond intellectual property rights and competition law issues – two of the dominant themes of the past years as well as at the Forum itself. I gave a brief overview of the three clusters we’re currently working on in the context of the Digital Natives project:

• How does the participatory web change the very notion of identity, privacy, and security of Digital Natives?
• What are its implications for creative expression by Digital Natives and the business of digital creativity?
• How do Digital Natives navigate the participative web, and what are the challenges they face from an information standpoint (e.g. how to find relevant information, how to assess the quality of online information)?

The third argument, in essence, was that there is no (longer a) simple answer to the question “Who rules the Net?”. We argue in our book (and elsewhere) that the challenges we face can only be addressed if all stakeholders – Digital Natives themselves, peers, parents, teachers, coaches, companies, software providers, regulators, etc. – work together and make respective contributions. Given the purpose of the Forum, my remarks focused on the role of one particular stakeholder: governments.

While still research in progress, it seems plain to us that governments may play a very important role in one of the clusters mentioned above, but only a limited one in another cluster. So what’s much needed is a case-by-case analysis. I briefly illustrated the different roles of governments in areas such as

• online identity (currently no obvious need for government intervention, but “interoperability” among ID platforms on the “watch-list”);
• information privacy (important role of government, probably less regarding more laws, but better implementation and enforcement as well as international coordination and standard-setting);
• creativity and business of creativity (use power of market forces and bottom-up approaches in the first place, but role of governments at the margins, e.g. using leeway when legislating about DRM or law reform regarding limitations and exceptions to copyright law);
• information quality and overload (only limited role of governments, e.g. by providing quality minima and/or digital service publique; emphasis on education, learning, media & information literacy programs for kids).

Based on these remarks, we identified some trends (e.g. multiple stakeholders shape our kids’ future online experiences, which creates the need for collaboration and coordination) and closed with some observations about the OECD’s role in such an environment, proposing four functions: awareness raising and agenda setting; knowledge creation (“think tank”); international coordination among various stakeholders; alternative forms of regulation, incl. best practice guides and recommendations.

Berkman Fellow Shenja van der Graaf was also speaking at the Forum (transcripts here), and Miriam Simun presented our research project at a stand.

Today and tomorrow, the OECD delegates are discussing behind closed doors about the take-aways of the Forum. Given the broad range of issues covered at the Forum, it’s interesting to see what items will finally be on the agenda of the Ministerial Conference (IPR, intermediaries liability, and privacy are likely candidates.)

Today in Hong Kong, I’ve had the pleasure to catch up with some of my colleagues and friends who are living and working in Asia. The conversation with Rebecca MacKinnon, my former Berkman fellow Fellow and now assistant professor at the University of Hong Kong’s Journalism and Media Studies Center, resonates in particular. We touched upon several themes and topics in which we share an interest, ranging from Chinese culture, U.S. foreign politics, to corporate social responsibility, among many others. We then started talking about the digital natives project(s), and youth and new media research questions (Rebecca actually teaches “new media” at HKU). Starting from different places and looking from different perspectives, we concluded that two (related) sets of question will likely end up being on our shared research agenda for the months to come.

• First, media literacy and education of digital natives. While media education in the digital environment has become an important topic especially in the U.K. through the work of Ofcom and experts like Professor David Buckingham and Professor Sonia Livingstone, it’s still in its infancy in many other parts of the world. From all I’ve learned now in the context of our digital native project – and from what I know about the current state of neuroscience with regard to cognitive and emotional development – its seems crucial to start with media education at pre-school or primary school level at latest. If anyone has pointers to good web resources, case studies and/or curricula in this area, please drop me a note.

• Second, users rights and responsibilities in the digital environment. This issue is obviously related to the first one and concerns the question as to what extent our societies do provide mechanisms to have a discourse about our rights, but also responsibilities (and that’s where it gets tricky from a political perspective) as empowered users in the digitally networked environment. While great work has been done with regard to the “rights”-part of the discussion – largely driven by NGOs and consumer protection organizations (see here for a recent example) – we may need to figure out in the near future how to address also the question of the new responsibilities as “speakers” that are associated with the fundamental shift from passive consumers to active users. Interestingly, the role of citizens as producers of information has reportedly been addressed in a (if I recall correctly: still unpublished) draft of an information freedom act in an Eastern European country. Legislation, however, is most likely not the right starting place for such a discussion, I would argue.

In short, more food for thought – and additional research tasks for our digital native team. (Thanks, Rebecca, for a great conversation.)

The OECD has just released what – in my view – is the first thorough high-level policy report on user-created content. (Disclosure: I had the pleasure to comment on draft versions of the report.) From the introduction:

The concept of the ‘participative web’ is based on an Internet increasingly influenced by intelligent web services that empower the user to contribute to developing, rating, collaborating on and distributing Internet content and customising Internet applications. As the Internet is more embedded in people’s lives ‘users’ draw on new Internet applications to express themselves through ‘user-created content’ (UCC).

This study describes the rapid growth of UCC, its increasing role in worldwide communication and draws out implications for policy. Questions addressed include: What is user-created content? What are its key drivers, its scope and different forms? What are new value chains and business models? What are the extent and form of social, cultural and economic opportunities and impacts? What are associated challenges? Is there a government role and what form could it take?

No doubt, the latest OECD digital content report (see also earlier work in this context and my comments here) by Sacha Wunsch-Vincent and Graham Vickery of the OECD’s Directorate for Science, Technology and Industry is a must-read that provides plenty of “food for thought” – and probably for controversy as well, as one might assume.

Interesting read for snowy days in Boston: The Pew Internet & American Life Project released a survey on Search Engine Users, concluding that “Internet searchers are confident, satisfied and trusting – but they are also unaware and na�ve.”

The report includes findings that I will use in my (overdue) paper on information quality and the Internet. Among the findings:

• 89% of internet users under 30 years have used search engines.
• One-third of searchers are “power users” that couldn’t live without search engines.
• 44% of searchers say that most or all the information they search for online is critical, e.g. needed to accomplish an important task or answer an urgent question. (BTW, the report also explores when users don’t use search engines.)
• 17% of searchers say they always find the information for which they are looking for. 87% of users say they have successful searches most of the time.
• 44% of searchers regularly use a single search engine.
• 68% of users say that search engines are a fair and unbiased source of information. However, only 38% of searchers are aware of a distinction between paid and unpaid search results.

Food for thought, I’d say.