Regulating in the face of digital disruption

Having studied policy and regulation at university, Zeitgeist is often compelled to look at many issues facing companies today through a regulatory lens. But even the most dispassionate fan of rules and laws would have to concede that as digital innovation disrupts multiple sectors around the world, the way these new innovations and businesses are governed is an important consideration. In this piece we’ll be looking at regulatory concerns for disruptors like Uber and Netflix, as well as how regulation effects legacy companies like Microsoft and Comcast. As with many of our articles on this blog, we’ll be taking a particular look at the TMT sector. (Bitcoin will have to wait for another article).

Regulators often find themselves caught between a rock and a hard place. Should the emphasis be placed ex-ante, to ensure compliance, or ex-post to apply punitive measures and fix problems once they have become apparent? The former seems wise as it sets initial goals for companies. But it also risks opening loopholes, as well as being overly prescriptive and thus failing to adapt. It can also lead to the development of overly-familiar relations between regulator and industry, leading to what is known as ‘capture’. Currently, the US favours an ex-ante approach, but as Edward Luce detailed recently in the Financial Times, this has led to a “creeping impulse to micro-regulate“. The FDA’s recent announcement that they would regulate e-cigarettes, despite no proof it encourages the take-up of smoking tobacco, is such an example. Ex-post – regulating after an event – seems just as bad, mostly because the damage has already been done at that point. While it means that all problems addressed are real-world and practical, they can also be applied with too much emphasis. Above all, regulation ultimately risks stifling innovation; Edison moved to the West coast because he was fed up of the stringent regulations in the East. A recent lead article in The Economist asserted that, far from too little regulation, the global recession was caused by too much state involvement in the wrong places. Too little oversight though, and companies can be allowed to run wild.

Earlier this month, The New York Times featured an op-ed on regulating the online world. It is written by New York State attorney general Eric Schneiderman. As might be expected, he quickly attacks online start-ups saying it is “amazing” that they think just because their business is online, that “somehow makes them immune from regulation”. This is all well and good, but it masks the fact that clear regulations have not been established. Schneiderman is right to point out that just because a business now has an app instead of a high street store doesn’t mean its responsibilities to the law have changed. It is an apt analogy. But in practice the story is different. As with most innovations, from film to Napster and Airbnb, regulators must constantly be playing catch-up. The complaints of new businesses are not that they should be subject to regulation, rather that those rules are onerous or outdated, applying to a different time. The sharing economy works because it has found cheaper, more efficient ways of offering services that hitherto were more restricted; regulations need to be appropriately dispensed. Sadly, many cities in the US have simply blocked allowing such services to operate. Uber – a car pickup service – is probably not wholly repulsed by the thought of regulation, but they are resistant to rules put in place by entrenched interests and unions. Airbnb might violate the letter of the law, but not the spirit surely. People have always let out their living space to others. The only thing that has changed is scale. Why does scale suddenly make something legally problematic? Schneiderman points out that some lettings are so large, with multiple rooms let at once, that they are essentially hotels. True enough, perhaps, but Zeitgeist has certainly never come across such a property, and they are certainly small in number, and no more represent Airbnb’s ethos than any hotel violating its own (regulated) terms. A recent article in The Economist argued for “adaptation, not prohibition“. Schneiderman’s sentiment is that these start-ups need to work more closely and proactively with regulators, but this fails to recognise that regulators need to also fundamentally change their approach.

East and West shook up a regulatory framework with the recent release of “300: Rise of an Empire” via China’s Tencent website

Regulation in China has been a hot topic for a while now. This is principally because the region has a low tolerance of free speech. But it extends to cultural concerns as well; the Google Play store, Twitter, and most of Hollywood’s annual product do not make it onto Chinese shores (legally, anyway). What this creates is a secondary tier of companies who take Western business models and run with it. That’s why there are multiple Chinese Android app stores, why Sina Weibo is a fantastically successful service, and why many poor remakes of US films flood the Chinese market. It has been pleasing then to see two recent developments in the way China regulates the TMT sector that should be good news for consumers and Western companies. Today saw the announcement that Microsoft’s Xbox One is to be sold in China. It will be the first foreign games console to go on sale in the country, lifting a fourteen year ban. This would open up the company to the half billion active gamers in China. Additionally, as Michael Pachter, analyst at Wedbush Securities pointed out,

“The middle class in China is pretty large, and positioning the box as an over-the-top TV receiver gives it a lot of appeal to wealthier Chinese.”

Earlier this week, Warner Bros was the latest film studio to partner with Chinese site Tencent. The film 300: Rise of an Empire, is available to rent through the site, while it is still in cinemas in territories like the US. The points of the deal were very interesting. Zeitgeist has for a number of years now advocated an increased flexibility to film platform release windows. Such a rigid structure as the industry has in the US is not as apparent in China. This could help alleviate piracy in the country and separately could pave the way for a relaxing of the quota of US films that are let into the Chinese market every year. Hopefully this will be a precursor to more such moves in Western markets. As someone commented on the news when it was published on the Financial Times website,

“Maybe they can do the same in the rest of the world as well?
Or I could wait 2 months for something to come out on Bluray in the UK compared to the US. Or just pirate it when the US version is available since they won’t let me buy it in my country, but will let other people buy it in other countries.”

While China is taking steps forward, the US seems to be faltering in its regulatory approach. We mentioned the impending restrictions on e-cigarettes earlier, and let’s not even go into then-mayor Michael Bloomberg’s crusade against sugar. We’ve written about net neutrality before. The issue has been of interest to Zeitgeist since university days. It was thrust into the spotlight this year when a US court ruled that the FCC had “overstepped its authority” after a legal challenge from Verizon. Last week, new rules were proposed that will undermine the original purpose of the policy of treating all traffic the same, allowing ISPs to charge companies like Netflix more in order to reach consumer with greater quantity or quality, but only on “commercially reasonable” terms. These terms have yet to be defined. These moves touch on a related matter that has also been greeted with consternation by those who favour fairness. This is Comcast‘s proposed merger with Time Warner Cable. Netflix recently publicly came out against the move. It is easy to see why. As The Economist recently elaborated, such a deal would limit competition and reduce any incentive to innovate. It is also one more example of the assumption companies have that their problems can be solved with size. Comcast have admitted they will raise prices for the end user, while as much as conceding there will no be no discernible benefit to them. One might argue there is little more for such companies to do, but average internet speeds in Tokyo and Singapore are ten times as fast on average as in the US. Even the Financial Times, which can often be counted on to be a bastion of support for capitalists, compared Comcast to the Railway Barons of the past.

The sharing economy is creating difficulty for many sectors, and regulatory agencies have not escaped this. Such forces have been to slow to adapt to fundamental changes in the TMT sector, particularly in print, music and film industries. There certainly seems to be a tendency for over-regulation today, particularly in the US. Returning to an article we mentioned at the beginning of our piece, Edward Luce laments that America “no longer feels unusually free”. Perhaps this is part of a cyclical trend. Like the causes of the recession, perhaps the problem is a stifling caused by over-regulation in the wrong places, coupled with a lack of innovation in areas where sensible rules that do not cater to the established are in dire need. It is good to see rules and regulations around consoles and release windows are being relaxed in China, but the furore around regulating the sharing economy needs a similar dose of innovative thinking.

UPDATE (17/9/14): We’ve included some nice examples in this post of innovative thinking paired with light touch regulation going on in China’s entertainment sector. Sadly the pendulum swings both ways; though shows like BBC’s ‘Sherlock’ were made available with authorised translations mere hours after their original broadcast in Blighty, the state is cracking down hard in other ways. The Economist reports that last week, China’s TV regulator said that, from April, any foreign series or film would need approval before being shown online. It is looking for “health, well-made works” that “showcase good values”. This sounds like a vague excuse to arbitrarily censor content it doesn’t like. Explicitly, banned subject matter includes, according to The Economist, “superstition, espionage and—bizarrely—time travel”.

The Sharing Economy meets the Internet of Things

This post has been reblogged by IBM and is reproduced on their Tumblr sites. The original is available below in its entirety.

Noise over what has been called Collaborative Consumption – and elsewhere The Sharing Economy – has been increasing in volume for some months now. Kickstarter, a crowdfunding business that exists to let people from anywhere in the world donate to singular projects, is a great example of this new philosophy. The company has played roles in funding films, games consoles and civic projects like the construction of bridges. Zeitgeist has made use of sites likes AirBnB and Housetrip to stay in lovely, very affordable apartments in places like Paris and New York. These diverse businesses aren’t necessarily united in a single cause to drive the sharing economy, but they are all trying to make use of what some economies, particularly in the West, excel at producing: surplus.

It’s an acknowledgment that there are physical items we own that we don’t actually need, which are eminently transferable – for a certain period of time – to others, with the market more or less dictating price (it’s this last point that removes any assertions or complaints of the idea being some sort of socialist utopia). At its root, the idea has been seen in media consumption for several years now; we’ve written often about the new customer mantra of ‘access trumps ownership’, where people prefer to stream their content rather than have it on a shelf. This is a bit of a sea-change in how we view ourselves. As a very astute article in The New Yorker pointed out earlier this month, we have often defined ourselves by what we own,

“For most of the past century, Americans have been the world’s greatest consumers. And usually consumption has meant ownership: just before the Great Recession, the average American household owned 2.28 cars, and had more television sets than people. But these days a host of new companies are trying to disrupt the paradigm… beneath all the hype is a sensible idea: there are a lot of slack resources in the economy. Assets sit idle—the average car is driven just an hour a day—and workers have time and skills that go unused. If you can connect the people who have the assets to people who are willing to pay to rent them, you reduce waste and end up with a more efficient system.

Zeitgeist believes that the increasing popularity of another evolution in business – that of connected devices – will dovetail nicely with the sharing economy. The widespread use of connected devices, known as the Internet of Things, is broadly based on the idea of having products that are intelligent enough to know what they are being used for, when they are being used, and how to make sure the user gets the most productivity out them. Connecting said product to the Internet is usually a pretty good way of doing this. At its simplest, it is the much-ballyhooed Smart Fridge, that knows when it’s running out of milk and orders more for you online without having to bother asking you. In reality, it is things like the Nest device, a (very) smart and (very) beautiful thermostat device.

Zeitgeist was at London’s Bloomberg HQ earlier this week for Social Media Week, a series of events usually dominated by a great deal of hot air. Fortunately this was not the case with the Internet of Things event. It quickly became clear that without the Internet of Things, collaborative consumption would plateau very quickly. There were fascinating projects like Pachube, which relied on crowdsourcing data in real-time via Twitter from an aggregation of sensors, allowing them to communicate with one another and at the same time. This information is not only not proprietary, it is meant to be built upon. It was used during Japan’s Fukushima disaster for crowdsourcing radiation data. 2000 feeds were set up after 10 days; Android apps, SMS alerts were built, all by different people, a great example of product and information being shared and being improved by being open to collaboration. On a more humorous level, Zeitgeist was also privy to hearing about Addicted Toasters, where the toaster is not just connected to the owner’s smartphone, or to the Internet, but also to other toaster’s in the network. If it sees that others are toasting more bread, it gets ‘jealous’. By which we mean of course that if it decides it is being under-utilised, it will decide it is time to go to the next person on the waiting list who wants to use a toaster. It does this by dialling into the FedEx API and getting itself shipped to that next person in line. The speakers, Usman Haque, said this was not just about “remote monitoring or control, but participation with others in how people make sense of local environments and how products are shared”. While the Addicted Toaster may be smart, and ostensibly aware of a network of other toasters, many aren’t holistically connected with a wider infrastructure. The driverless car, which companies like Tesla and Google are road-testing as I type, is set to bring about this next evolution, as described last week in an excellent article in the Financial Times. If we do come to a time when – as was suggested at the Bloomberg event – every product has its own IP address, then it means that every product is a lot more easy to track, and necessarily a lot more easy to lend to others. For, if a device is unique and ‘intelligent’, it should hypothetically recognise your own needs when you need it, and another’s when someone else has need of it. A world with fewer items can be pretty cool, too, if pretty small, as entrepreneur Graham Hill demonstrates with his New York apartment that is one room, or eight, depending on how you look at it.

All this sharing undoubtedly has positive implications for sustainability; a lot less produced means a lot less waste. There are potentially huge lifestyle impacts as well, which may not be as comforting. The New Yorker, again:

“It isn’t just companies and regulators who will have to be flexible, though. Workers will, too, since the sharing economy requires people to function as micro-entrepreneurs… They are all independent contractors, working for themselves and giving the companies a cut of the action. This has certain attractions: no boss, the ability to set your own hours, control over working conditions. It also means no benefits, no steady paycheck, and the need to always be hustling; in that sense, it fits all too well with the free-agent nation we’re increasingly becoming. Sharing, it turns out, is often a hell of a lot of work.”