Popularizing Formats For Sitting At a Table and Having a Spirited Discussion

Mediation has a surprising amount in common with the tabletop game Dungeons and Dragons.

1) Most people know very little about either one.

2) People who have heard of it often think it’s a waste of time, and may deride those who support it.

3) Neither are promoted in mainstream culture.

4) The formats bear some similar appearance: Several people sit around a table. One person seems to be “in charge,” but really, that person is just helping the other people at the table actually make meaningful decisions by providing structure and clarity for the process.

5) Neither one has a final, decisive ending that declares a winner. Rather, the purpose for both activities is to have a mutually satisfying experience and outcome; everyone wants to walk away from the table feeling like it was a worthwhile investment of 3 hours (… or 5 hours… or 18 hours…).

6) The enemy that must be defeated is abstract in both cases. For D&D, it’s the… well, the Dungeons and Dragons that must be overcome (it’s extremely clear naming). In mediation, it’s the conflict itself that is the enemy– not the other person.

More people than ever are playing D&D- and even filling theaters to watch professionals play it. Can mediation find the same increased acceptance in our culture?


The Wizardry of Brand Management

D&D surged in popularity in the last few years. The owner of the game and the brand, Wizards of the Coast (WotC), has rebuilt and redesigned the rules and format several times since taking over the trademark in 1993. When launching the 5th edition of the game in 2014, WotC leveraged social media to demonstrate how the game worked. The 5th edition was easier to understand, easier to play, and easier to watch than any previous edition. These changes made it more inviting for new players and also made it much more of a spectator event, which fit with the use of streaming services like Twitch and YouTube. Enthusiasts started to publish their own gaming sessions online, effectively turning their gaming product into a TV show—sort of a strange inverse of how most children’s cartoons worked in the 80s and 90s to sell toys. Like so many video games that now comprise the esports corpus, D&D became a game that collected an avid fan base and consistent spectators to fill streams and theaters. Podcasts, streams, and live performances have introduced thousands of new players to the game, as well as rekindled the imaginations of those who have not rolled a twenty-sided die in decades.

Despite their broad similarities, mediation has not exactly kept pace with D&D’s surge in popularity. Despite the overwhelming difference in cost, time, end (arguably) effectiveness, litigation remains the gold standard for dispute resolution in matters of legal consequence in the US.

Courtroom drama television shows, (and “procedurals,” generally) have done well in the US. A regular program centered on mediation could easily do as well as any long-running legal procedural show. Wizards of the Coast brought D&D out of derision and obscurity (even dismissing alleged satanic affiliations) by making it comprehensible and accessible. They used every possible tool to present an alien an esoteric game structure in a way that was engaging and entertaining, while at the same time gently informing viewers who simply watched the process.


Two Obstacles To Mediation’s Popularity

There is a snag in the economics of promoting mediation:  Wizards of the Coast is financially incentivized to promote their D&D product. A lot of wealthy people and companies are not necessarily incentivized to promote mediation as a primary form of dispute resolution. Trials can be incredibly expensive, and their complexity and cost often favors the side with more money to hire more experienced attorneys. Those with advantages of any kind, in any setting, are typically unwilling to give up those advantages. If the US legal system creates any advantage for those with power or wealth, it is easy to see why power and wealth would not be used to promote an alternative method of dispute resolution.

The other primary obstacle is the lack of cohesive ownership over mediation. D&D is a gaming product owned by a single company, and so decisions surrounding its brand management are made by a single entity. Mediation is a broad structure of dispute resolution, not owned by any particular body. Indeed, it is not the kind of thing that is subject to trademark or patent protection. There are trade groups and individual specialists who would like to see mediation increase in popularity, but there is no single entity with resources and authority over mediation. It is not comparable to the relationship of a company with its product. The lack of a trademark or ownership makes branding extremely difficult. Wizards of the Coast is able to manage D&D carefully, shutting down counterfeit products and distinguishing itself in the gaming market. Mediation is not the kind of thing that is subject to trademark protection.


The Cultural Boost for Competitive over the Cooperative

If popularity is about brand management, mediation seems condemned to obscurity because that brand can’t be effectively managed.

But how did litigation get popular without a trademark and a livestream? Perhaps the adversarial attitudes in litigation fit naturally with a competitive culture. Litigation so often becomes about beating the other side, rather than beating the conflict itself. Mediation is most successful when each side sees the obstacle as the conflict itself, and everyone works together to defeat that problem—not to defeat each other.

Despite the epithet of “rules lawyer” to describe many D&D players, a society that played more cooperative tabletop games would probably be less litigious. Taking a few hours to learn to work with someone who has different personal objectives from your own is an unusual activity in our culture, but learning to listen and cooperate might have value in an increasingly interconnected and networked society.


Evil Vines Choking Out Unenumerated Protections (An Afterthought on Legislating for Changing Technologies)

Legislation always faces a problem of enforcement. That problem can take many shapes: lower courts or police may refuse to enforce the law, citizens may refuse to obey the law en masse, or crafty schemers may look for loopholes and technicalities so they effectively break the law without penalty. There are multiple laws, cases, opinions, and all other legal indications that children merit special and particular protection online and in digital interactions. However, there is no law specifically forbidding inflicting digital violence on a child’s avatar in a game until the child pays non-digital money— and I’m almost surprised it took so long for someone to find that opportunity. I think Penny Arcade misunderstands the problem. The problem is that all of those legal efforts to protect children could never cover every possible way that someone might try to exploit a child in a digital setting. When someone wants to exploit people for money, they only worry about the law in three ways: not getting caught, not getting tried, and not getting convicted.

This kind of example raises concerns not just in the video game industry, but across industries affected by the new General Data Protection Regulation. It would be unfairly cynical to even hypothesize that every company is nefarious, of course. A good many companies have a genuine desire to uphold the GDPR rights of their users, and their task is to work toward official compliance with the GDPR requirements– a few will even go beyond that minimum and take further measures for privacy and security. Notwithstanding, some controllers and processors still want to exploit their users, and their task is now to figure out how to sneak over, around, or through the GDPR.


In Both Overcooked And The GDPR, Execution Matters More Than Ingredients

I deliberately avoided playing Overcooked for a long time because so many review joked about the fights it causes with friends. Now that I’ve played it, I barely understand why it’s such a divisive experience for so many people. The game is charming and delightfully fun. Players work together in kitchens filled with obstacles (food and tables often move during the round, forcing players to adapt) to prepare ingredients and assemble meals for a hungry restaurant– though the diners are sometimes floating on lava floes and sometimes… the diners are penguins. The game is about coordinating and communicating as you adapt to changes within the kitchen. Maybe the reason so many people throw rage fits during this game is that they are not good at coordinating an effort and communicating effectively. In any case, the game isn’t about food so much as it’s about kitchens (especially in restaurants). So the game doesn’t focus so much on the ingredients as it teaches the importance of working together in chaotic situations.

People are focusing  a lot on the ingredients of the new EU data privacy law– particularly the consumer protection rights enumerated in it. However, there is very little talk about the bulk of the law, which is aimed at the effort to coordinate the enforcement and monitoring mechanisms that will try to secure those consumer rights. The rights listed in the GDPR are great ingredients– but as Overcooked teaches, it takes both execution and ingredients to make a good meal.

Supervisory Authority: How We Get From Ingredients to Meal

I’ve read a lot of articles about the General Data Protection Regulation, and I notice two common points in almost all of them: 1) the GDPR lists data privacy rights for consumers, 2) this is a positive thing for consumers. However, after reading the entire law, I think this is a gross oversimplification. The most obvious point that should be added is overwhelming portion of the statute that is devoted to discussing “Supervisory Authorities.” The GDPR may list a lot of consumer rights, but it also specifically details how these rights are to be enforced and maintained. This law prescribes a coordinated effort between controllers, processors, supervisory authorities, and the EU Board.

As described in Article 51, 1, a supervisory authority is a public authority “responsible for monitoring the application of this Regulation, in order to protect the fundamental rights and freedoms” that the GDPR lists. Each member of the EU is required to “provide for” such an authority. I can only speculate that this would look like a small, specialized government agency or board. This supervisory authority is required to work with the various companies that hold and process data (“controllers” and “processors” in the GDPR) to ensure compliance and security. The supervisory authority is responsible for certifications, codes of conduct, answering and investigating consumer complaints, monitoring data breaches, and other components of a comprehensive data privacy program. The supervisory authority must be constantly and actively ensuring that the rights in the GDPR are made real.

If the supervisory authority can’t coordinate the effort with the controllers and processors, the rights in the GDPR are just delicious ingredients that were forgotten about and burned up on the stove.

Tooth And Tail: Lessons in Planning With Realistic Expectations

Tooth and Tail is simple. It has to be simple because the game designers had a very challenging goal: Make a Real Time Strategy game that is reasonably playable on a console. Real-Time Strategy games are notorious for needing high-speed and complex inputs (professional Starcraft players’ fingers perform over 400 actions per minute) that are simply not possible with the constraints of a console controller (even with all of the buttons they’ve added after Nintendo produced the perfect game controller in 1990). But the designers were smart, and they looked realistically at the constraints of the system, and they crafted the game to fit those constraints. The result is a playable, enjoyable game about a Soviet-revolution inspired rodent uprising on a farm. The designers of in-house corporate programs and databases need to learn to be realistic about the actual uses of their programs.

I. Lesson in Project Design: Accept the Probabilities of Disaster so you can Plan for Prevention; Don’t Plan for Immortality and Invulnerability. (#dontbeateen)

In the digital age, there is an increased focus on preventing and eliminating problems/errors. The promised outcomes of flawless perfection are enticing, but the realities of inevitable problems require more effort be put into managing problems and recovering from disasters.

Computers amplify the speed and scale of what people can do. This makes it easier for people to do more, and to do more, faster. This includes making mistakes bigger. Years after a British woman got 15 minutes of fame for accidentally ordering 500kg of chicken wings, Samsung accidentally made a $105 billion ghost.

Samsung Securities Co (a financial services company owned by conglomerate Samsung Group) tried to pay a dividend to their employees, but accidentally gave the employees shares instead. The 1,000 WON dividend became a 1,000 SHARE distribution- creating over $100 billion in new sharesThen some employees immediately sold those shares. There were a lot of safety measures that failed in this story. The program should have been able to calculate that this order totaled over 1 trillion WON, more than 30 times the entire company value. A second human should have checked over the work for simple, obvious errors when there is a potential for this level of damage (anything at a company-wide level for a publicly-traded international corporation would certainly qualify). Several departments should have reviewed the work (compliance, risk, accounting, finance, legal—almost anyone!). Samsung’s own internal compliance should have also prevented the sale of the ghost shares.

II. A Lesson in Categorical (Or Macro) Errors: Some Mistakes are Annoying, Others Are Fatal. Design to Catch and Prevent, Not Headline and Damage Control. (#dontbeaceleb)

Mistakes happen a lot when computers are involved. Sometimes it’s the user, sometimes it’s a problem in the code. But when a user catches a problem, they can assess the problem in a broader context, and determine just how bad a mistake is. A bigger mistake is just more obvious to a human than a computer.

Many years ago, a friend of mine got on a flight and found someone else sitting in his designated seat. Not wanting to cause trouble, he simply took the empty seat next to his designated one and prepared for the flight.  As the crew prepared for taxi and takeoff, a flight attendant welcomed passengers to their non-stop service to their destination city. Upon hearing this announcement, the woman next to my friend hurriedly gathered her belongings and fled the plane.

She wasn’t in the wrong seat. She was on the wrong plane.

Computer programs don’t intuitively differentiate between the severity of errors:  the wrong plane and the wrong seat are just two errors if you’ve never flown and don’t know have a broad concept of travel or the context of moving around a world. To a computer, being in the right seat is still pretty good, just like executing a financial order with the correct number is pretty good – even if the number is in the wrong field or tied to the wrong variable. What humans easily grasp, computers are often unlikely to infer. The right detail at a micro-level cannot remedy a catastrophic error at a macro-level.

User errors are inevitable. Programming errors are likely. The more we rely on computers, programs, and apps for the things that allow our lives to function, the more likely it is that our lives will be disrupted by programmer or user errors.

III. The Solution: Make The Programs Flexible, and Make Problems Fixable.

Tooth and Tail’s success is rooted in the realism of its game designers, who sacrificed dreams of a more complex game (that would have been unplayable) for the right game that fit the actual constraints and experience of the player. Designing with the actual user’s experience in mind—with special consideration for what can go wrong—is more important for project designers and programmers every day.

There is an increasing drive to try to use computers to prevent any errors, mistakes, or problems. However, these solutions only make problems worse because they decrease flexibility in and around the program. The solutions is to move in the opposite direction: programs need to play less of a role in trying to self-regulate and self-repair, while users and programmers take a larger role in guiding and overseeing the programs.

But wouldn’t this much red-tape bureaucracy be time-consuming? Wouldn’t it be inefficient to invest so much effort in a simple dividend payment? It would take time and resources, yes—but efficiency measurement is relative to scope (among other factors): it certainly appears inefficient if 6 people spend 10 minutes each to look at the same work and find no error. Here, we would conclude that a full hour of productivity was wasted. However, if 6 people took 10 minutes each and found a problem that would have cost 1,000 hours of productivity had it not been discovered, we conclude that we have a net gain of 999 hours of productivity.

Although problems like these cannot be entirely prevented or eliminated, they can be contained and managed. If a person is on the wrong plane, they can quickly determine the outcome of their choice and work on a solution. People will still get in the wrong city from time to time, but they don’t have to end up in the wrong city as a result. Similarly, employees will make occasional typos or errors in their accounting and payroll from time to time, but that doesn’t mean that financial markets have to be rocked as a result.

Computers Are Not Problem Solvers- Computers Are the Problem We Must Solve.

The New Checkout Cashier That Doesn’t Care If You Starve

There is an effort to use a simple AI at the office where I work. Some slick salespeople sold the building 2 cutting edge, top-of-the-line, automated checkout machines. These machines have a camera that stares at a designated check-out square. People simply select the items they wish to purchase and place it in the designated area. The camera recognizes the items, registers the purchases, and the person then swipes their card and completes the purchase process. However, the camera sometimes does not recognize the item- and there’ s no other method for buying the item when this happens. I leave my snack or drink by the incredibly expensive and completely useless machine. Betrayed by technology and the salespeople who sold the devices to the facilities management, I walk back to my desk in anger and disgust.

It’s a simple story, but an increasingly common one: we start to rely on technology, and when it fails, we just hit a wall. It’s not clear to me what advantages the camera offers over a scanner (which is used elsewhere in the same cafeteria for self-checkout). This kind of story will be more common as more people rely on smart homes, smart fridges, smart dishwashers, smart alarm clocks, etc. The “smartness” behind each of these is rudimentary AI- recognizing patterns and sometimes making simple predictions. The hope is that the technology will understand its role and take a more proactive approach to helping humans.

However, the technology doesn’t understand its role, and it really doesn’t care about helping humans. When AI encounters an error, it doesn’t go into “customer service mode” and try to help the human achieve its goal. It doesn’t try to resolve the problem or work around it. It just reports that there was an error. If a retail employee did this, it would be the equivalent of being told “I can’t ring up this item,” and then the employee just walks off to the break room. Most people wouldn’t return to a store that had that level of customer service. People born before 1965 would probably even complain to the manager or local community newspaper.

These problems can be resolved, but the fixes are rarely designed into the technology at release. I’ve had this problem with the checkout machines at work about 7 times over 7 months (I don’t even try to use them more than about once a week)- I am aware of no effort to improve the situation. Because the designers probably never use the machines, there’s a good chance no one in a position to fix the problem is aware of the problem.

More Dangerous Places to Put AI: Cars and Financial Markets

The fundamental problems for AI are annoying and disappointing when they deny us snacks or try to sell us shoes that we already bought. But these problems are amplified from “annoying” to “tragic” and “disappointing” to “catastrophic” when they manifest in vehicles and financial markets. If our AI checkout machine doesn’t care if people can purchase food, what else are we failing to get AI to care about in other applications?

AI is the newest technology, which means it is subject to all of the failures of previous technology (power outage, code errors, physical tech break) and also the new failures of technology (AI-specific problems that sometimes actively resist resolution).

None of this is anti-technology- on the contrary, I think AI is a fantastic development that should be used in many applications. But that doesn’t make it a great (or even acceptable) tool for every application. A warning that hammers should not be used to put screws through windows is not a diatribe against hammers, screws, or windows. It’s just a caution that those things may not mix in a way that will yield optimal results.

“Extra! Extra! Trademarks Show Consumers Sources!” What Telecommunications Can Learn From IP Law To Combat “Fake News”

Formal news broadcasts play a role in a lot of games that focus on story: Deus Ex: Human Revolution centers itself around the news broadcaster, and the game culminates in the decision of which news story to broadcast. Starcraft II’s Terran campaign allows the player to explore the storyline by watching news broadcasts. Borderlands 2 allows players to follow news broadcasts from different sources as the main storyline progresses. In each case, there is always a gap between the news story that is presented and the information the player has. Whether the news is explicitly propaganda, merely biased, or simply missing information, each game underscores the fallibility of the news as a primary source for information.

Subjectivity, bias, and context can change the interpretation of a news story. Words themselves can also be subject to changes in context and intent. The term “Fake News” gained fame when used by Trump to accuse CNN of, essentially, being left-of-center. However, it has more recently been used to refer to Russian hackers spreading propaganda and disinformation on Facebook and other social media under the guise of non-biased, traditional-style newsmedia.

Trademarks: How We Know What is From Whom

The goal of trademarks is to reduce consumer confusion by establishing clear connection between goods/services and the manufacturer/provider. This consumer knowledge is considered essential to a healthy marketplace and – in many cases—to consumer safety. Applying the same fundamental concepts of trademark law to telecommunications law might have a positive effect on combating certain forms of so-called “Fake News.” By requiring each news source to register digital certificates with social media platforms, consumers could be more confident in the source of their information. The information may still carry the biases of the institution, editor, or author of the news piece, but the consumer would be aware of that possibility from the initial contact with the article or video. Just as trademarks do not enhance the quality of a good or service, digital certification would not ensure high-quality, un-biased news containing only perfect information. Similarly, even under robust trademark law, counterfeiting (and other violations) do occur. There would be a risk of various hacking attacks that would allow “Fake News” to be published under the name of a news source that did not actually produce it. However, such a hack can be addressed and corrected in ways that are not possible in a news marketplace without identifying information for news releases.

Trademark law may even be brought to bear directly on the Fake News problem. News outlets often develop their own styles and designs that remain consistent over time, eventually becoming associated in the minds of consumers with the outlet. This could be interpreted as trade dress, and a case could be made that this is a type of intellectual property subject to legal protection. Enforcement of this would likely be very difficult against foreign, anonymous violations, but creating a culture of more regimented, clearly defined news outlets would be beneficial in helping consumers spot outliers that don’t fit the known news providers—and treat such new providers with appropriate scrutiny and supplemental research.



Regulating The Internet? Not the Tubes Themselves…

If Net Neutrality is an argument about economics (and federal administrative law), Content Regulation is an argument about ethics and culture.

Net Neutrality is becoming an old hobby horse for a lot of people. It gets a lot more attention than most telecommunications policy issues. Even though questions about copper wire lines vs fiber optic cables actually affects more people, the internet is generally united by the fact of its own existence.  This is about regulation at the highest level, determining the equality and/or equity of access to content. No one online is indifferent to the internet—the only debate about net neutrality is which policies are best for the consumer and the telecommunications marketplace (or, in the United States, “telecommunications marketplace”).

But there is another layer of regulation that is quickly gaining attention. If Net Neutrality is about the form of the internet (its structure and broad organization), there is a growing need to consider questions about the regulation of the content of the internet. Over the years, the internet has been a vector for some amazingly good and amazingly bad actions by humans. The differences in the kind of regulatory concept at play are hard to understate. Rather than comparing it to different video games, I would compare it to the difference between a video game and a tabletop game.

1) I’ve always been fascinated by the dawn of the computer age. My childhood was the tail-end of a world in which homes did not have internet access. By the start of law school, everyone looked up famous cases and Latin phrases on Wikipedia during class (except for the people who did the reading the night before- they looked it up before class). I’ve often compared the early days of the internet to a kind of Wild West setting: a lawless frontier where fundamental questions about the mold of civilization were not yet settled. I thought most of those questions would be settled by 2015. We are not close to a consensus on rules. Indeed, we are still testing what types of rules are feasible or desirable.

Video games are literally made of rules: the computer code that constitutes the game itself. Tabletop games are made of… usually cardboard, or some kind of paper. (Occasionally, they have some plastic – or even metal if you got the collector’s edition.) This may sound like a silly or vacuous distinction, but it has important ramifications for the kinds of problems that can happen in a game, and the kinds of solutions that will (or won’t) be effective.

2) Lawlessness can lead to problems. This was probably not known until 2 decades of unfettered internet, but now we know. Free to do anything, people have tried very hard to do everything. Every app, platform, hosting site, game, or program online that gets big enough eventually starts to experience just about every problem type that humans can present. From intellectual property disputes to death threats, from fraud to manslaughter, the internet has been a way for people to discover criminal behaviors that past generations could never have the opportunity to access. The unethical choices of both multi-national companies and village simpletons are available for repeated viewing.

In a video game, the code can sometimes glitch and create problems for players. The code can also execute perfectly, but there may be complaints about the design of the game itself (a level being too difficult or some power or tactic being of an unsuitable level of power). With some difficulty, players can cheat by actually breaking the code, but more games can detect this (and especially so in professional e-sports settings). In a tabletop game, anyone can cheat, the rules may be wrongly applied (or not applied at all), and all manner of chaos can ensue. DDoSing an opponent during a game might be a little bit akin to literally flipping a table during a game of Monopoly or checkers,

3)  YouTube’s takedown system is already an example of an effort to regulate content, and it already shows some of the challenges with instituting a content regulation system: people will find ways to game that system. Any system of regulation will have two negative outcomes: it will penalize the innocent, and it will be dodged by the guilty. The most you can hope for is that it will protect most of the innocent and it will penalize most of the guilty. The US justice system, even when working as intended, will sometimes produce undesirable results: a guilty person will go free, and an innocent person will go to prison. The hope is that this happens very infrequently.

The most common reaction to bad behavior online has been for authoritative parties to do nothing. The most common reaction by authoritative parties to actually do something has been to ban the bad actor. The most common reaction to this ban is to come back with a different username or account.

In video games, cheaters are often banned (if they are making the game worse for other players). But in table top games, people who ruin the game are just not invited back. No one will play with them anymore. People might hang out with someone less if they behaved in a wildly unacceptable way during a casual weekend game of Risk or Werewolf. In a video game, bad behavior has very limited consequences. In a tabletop game, bad behavior can have lots of meaningful implications.


4) What would it look like to regular content? Getting it wrong is easy — which is the primary reason that’s what’s going to continue to happen. Whether trying to penalize criminals or regulate behavior online, creating a fair and ethical system that consistently produces more good results than bad ones is difficult. One problem is that incentives are at odds: most platforms want to turn a profit, and if bad behavior yields a net gain, the platform needs a solution that will actually make more money than the current bad behavior (plus the cost of implementing the remedy). Another problem is that platforms tend to think of regulating their content the way that most Americans think about regulations: an appointed governing authority (or combination of authorities).



You can’t make people be good, but you can keep deleting all of their manifestations of their behavior on the internet: You can suspend or ban accounts, and eventually IP addresses. You can automatically censor strings of characters, and continually update the list of banned strings. These will continue to be the solutions offered, and they will continue to mostly fail while they almost half-succeed.

Over a decade ago, Lawerence Lessig asserted that laws are of four types: market, cultural, legal, and architectural. It turns out that enforcing the legal type of law in a digital space is very difficult. But cultural norms practically enforce themselves. And architectural laws are always already enforced. Market rules can be fickle, but persuasive. A lot of efforts to regulate content will fail because they will hinge on the concepts of legal enforcement.

The lack of rules and regulations is what made the internet a place where amazing things could happen. Without rules to stop imagination and creativity, people created art, solved problems, built positive communities, and enriched themselves and each other. In that same landscape: without rules to stop hate and anger, people created harassment and bullying, invaded privacy, ruined lives, occasionally killed people, and destroyed a lot of good in the world. Lawless frontiers are the best opportunity for the most beautiful, important, and inspiring expressions of humanity. They are also the best opportunities for the most despicable, dangerous, and damaging expressions of humanity. What the internet becomes will be decided—has always been decided—by what people bring to it.