A few days ago I posted an open letter to New York Gov. David Patterson about a measure that recently passed through the New York legislature and was awaiting his signature. The bill proposes a new regulatory regime for video games that would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry. Unfortunately—but quite unsurprisingly—Gov. Patterson signed the bill last night. And so I am certain that another legal battle will ensue regarding the constitutionality of the measure, and it will likely be struck down like every other measure on this front because it violates the First Amendment. Regardless, let’s talk a little more about what animates this specific legislative effort, because I think it is very important and foreshadows the heated debate to come over video games and all media in coming years.
The New York measure is notable in that, unlike most of the other state or local measures that had been stuck down in recent years that proposed penalties for the sale of games to youngsters which were labeled by the ESRB to be intended for an older audience, it simply proposed more “oversight” of the ratings process and parental control technologies by the state. Specifically, it mandated that all games be rated and that all consoles contain screening controls. The response to that proposal has generally been: “So what?” After all, all video games are rated already and all game consoles contain parental controls. The measure also mandated a 16-member oversight board to monitor the industry and this process. Again, that proposal was not regarded by many as a serious threat to the video games or free speech.
But I fear that many are missing the big picture here. The New York bill is actually far more important that many people suspect because of what it foreshadows: A day when politicians will claim that we can make rating systems more “scientific” by putting public health bureaucrats or university social scientists in charge of them. Indeed, last night on Bloomberg TV, this became the focus of a debate between me and Dr. Michael Rich, Director of the Center for Media and Child Health at the Harvard Medical School. After you watch the clip, I’ll have much more to say about this issue down below the fold.
Want to know why copyright lobbyists never seem to have any real arguments? Because they describe those of us who defend the traditional contours of copyright law—including “limited terms”—as “copyright opponents.”
As we’ve discussed here before, newspapers are struggling. We all know that. The question is what, if anything, will save them? Most pundits tend to point to a two-fold solution: (1) get serious about leveraging the natural local advantages newspapers hold; (2) and find away to do so online as quickly as possible before they lose the bulk of the local online ad market to other competitors. This is why there’s a lot of talk these days about turning traditional papers into “hyper-local” web portals for their communities. Of course, there’s no guarantee that will work, especially in light of changing attitudes about “media localism.”
But let’s assume that that is indeed the best path forward. Will it really save newspapers? As eMarketer reports in today’s newsletter on “Can Local Web Ads Save Newspapers,” it’s a bit of a good news–bad news story:
The good news is that newspaper site ad revenues are growing along with other online ad spending, especially for local news sites. Local newspaper online ad revenues are predicted to reach $3.7 billion this year, according to eMarketer calculations based on Borrell Associates data.
The bad news is that this spending will not make up for print ad losses for some time, according to Lisa Phillips, senior analyst at eMarketer. Ms. Phillips noted that advertisers still pay more for print readers than for online readers. “This is a transition that will take several years,” she said. “Local advertisers are paying attention to the shift in reader behavior, but it will take a while for everyone to adjust.”
And so we will have to wait to see how it all plays out. But I am highly skeptical that traditional newspapers operators will be able to make up anywhere near the amount of revenue online that they are hemorrhaging over on the print side of the business. There’s just too much other competition out there online already for our eyes and ears. The age of “protectable scarcity” is dead and that means newspapers just don’t have the lock on local or regional markets they once did.
Each year the Entertainment Software Association (ESA), which represents the video game and computer game industry, produces a great little report entitled “Essential Facts About the Computer and Video Game Industry.” The 2008 edition is out and it has some interesting stats:
* 65 percent of American households play computer and video games;
* 38 percent of American homes have a video game console;
* The average game player is 35 years old;
* One out of four gamers are over age 50;
* Women age 18 or older represent a significantly greater portion of the game-playing population (33 percent) than boys age 17 or younger (18 percent); and,
* 41 percent of Americans expect to purchase one or more games this year.
Those findings make it clear that gaming really has gone mainstream. As I noted in an essay earlier this week, “gaming is now fully integrated into the fabric of my life and the lives of my children. It has become one of the most enjoyable media experiences for my generation and the generation of kids that we are raising.”
Some other important stats that have relevance for debates about public policy:
* 94 percent of parents are present when games are purchased or rented;
* 88 percent of parents report always or sometimes monitoring the games their children play; and,
* 63 percent of parents believe games are a positive part of their children’s lives.
Good for them. While it’s understandable that other ISPs elected to fold under intense pressure from an overzealous AG with a powerful bully pulpit, Comcast is entirely justified in standing its ground.
It’s not the responsibility of network providers to police their servers for potentially illegal files, as the Communications Decency Act makes clear. The only legal obligation of an ISP is to remove illegal content upon gaining knowledge of its existence on their network. But that hasn’t stopped Cuomo from sending a harsh letter to Comcast threatening to pursue “legal remedies to stop child pornography” if the cable giant doesn’t comply with his terms.
Cuomo wants ISPs to go far beyond merely removing illegal content as it’s discovered. The “voluntary agreement” that New York is pushing on ISPs has already resulted in many providers dropping newsgroup access completely, causing millions of subscribers to lose access to Usenet. Even among users who haven’t been completely cut off from newsgroups, the popular alt.* hierarchy has been disabled, making it nearly impossible to acquire anything larger than text files. The worst part is that the “bad guys” are unaffected by the crackdown on child porn—third-party Usenet servers with uncensored newsgroup access are a dime a dozen these days.
A legal battle with Cuomo might not be cheap, but it’d be worth fighting nevertheless.As I pointed out last month, suppressing speech through so-called “voluntary agreements” likely runs afoul of the First Amendment, and ISPs enjoy immunity under the Safe Harbor provisions of the Communications Decency Act.
Like his notorious predecessor, Andrew Cuomo seems bent on building his image as a crime-fighter through meaningless publicity stunts, even if it means extorting legitimate businesses to the detriment of consumers.
Last week CNN Money reported on the latest development in the $1 billion lawsuit that media giant Viacom has filed against Google noting that:
Viacom has agreed to let Google strip identifying information from YouTube viewers’ data before complying with a judge’s order to hand over the records as part of a copyright infringement lawsuit.
This is a small victory for YouTube as it was able to at least provide some assurance to its user base that their viewing history would be protected. But this smaller triumph doesn’t change the larger picture: This lawsuit is pointless.
The Federal Communications Commission (FCC) lost another major First Amendment-related case today involving its recent efforts to expand the parameters of “indecency” enforcement for broadcast programming. The case involves the now infamous “wardrobe malfunction” that occurred during an unscripted 2004 Super Bowl halftime performance involving singers Justin Timberlake and Janet Jackson. When Ms. Jackson’s breast was exposed on camera for nine-sixteenths of one second, the FCC immediately launched an investigation into the incident and fines were eventually levied on the grounds that the fleeting exposure of Ms. Jackson’s breast was a violation of broadcast decency standards. CBS challenged the FCC’s decision, leading to a legal showdown in the U.S. Court of Appeals for the Third Circuit.
In today’s decision, CBS Corp. v. FCC, the three-judge panel of the 3rd Circuit ruled that the Federal Communications Commission “acted arbitrarily and capriciously” when it imposed a $550,000 fine on CBS for the incident. The court’s 102-page decision, which can be found here, was decided squarely on procedural grounds. That is, it didn’t touch the more substantive speech-related issues or precedents such as the Pacifica or Red Lion decisions that constitute the foundations of all modern FCC broadcast regulation.
The case is important because it now joins the June 2007 decision handed down by the Second Circuit Court of Appeals in the case of Fox Television Stations v. FCC. That was the indecency case involving the FCC’s new policy for “fleeting expletives.” In that 2-1 decision, the Second Circuit ruled that “the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” As a result, the FCC’s order was vacated and remanded to the agency. [And the FCC is now challenging the decision in the Supreme Court.]
This is very similar to what the 3rd Circuit said today in the CBS case. Continue reading →
I have a couple of TV appearances today, which might interest or revolt you. I did a taping at CNN today for a story on Lou Dobbs program about the E-Verify system. His show has a strong editorial slant and a bit of a reputation for cutting and pasting guests to make them look ridiculous. Perhaps what I said will come out as illustrated to the right.
And tonight I’ll be on a Fox 5 News segment in the Washington, D.C. area on Web sites that carry crime statistics and data – and sometimes criminals’ personal information. Criminal Searches is an example.
I’ve got an article in the print edition of Reason about Microsoft’s ongoing efforts to make the DMCA look ridiculous. It’s now available online. One of the hazards of writing about technology for a publication with a months-long publishing process is that articles sometimes end up out-of-date before they hit newsstands. That happened in this case: I wrote the article in May, shortly after Microsoft announced it would shut down the licensing servers for MSN Music customers. Then Microsoft flip-flopped in June, too late to re-write the article.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.