Kevin Werbach

Tae Wan Kim and Kevin Werbach (2016), More Than Just a Game: Ethical Issues in Gamification, Ethics and Information Technology, 17.

Abstract: Abstract Gamification is the use of elements and techniques from video game design in non-game contexts. Amid the rapid growth of this practice, normative questions have been under-explored. The primary goal of this article is to develop a normatively sophisticated and descriptively rich account for appropriately addressing major ethical considerations associated with gamification. The framework suggests that practitioners and designers should be precautious about, primarily, but not limited to, whether or not their use of gamification practices: (1) takes unfair advantage of workers (e.g., exploitation); (2) infringes any involved workers’ or customers’ autonomy (e.g., manipulation); (3) intentionally or unintentionally harms workers and other involved parties; or (4) has a negative effect on the moral character of involved parties.

Kevin Werbach (2015), Is Uber a Common Carrier?, I/S: J Law & Pol'y For Info. Soc'y, 12 (157).

Abstract: The title of this essay may seem surprising. What does Uber, a transportation service considered an exemplar of the “sharing economy,” have to do with Internet regulation? What does common carriage, a regulatory construct most commonly associated with railroads in the nineteenth century and telephones in the twentieth century, have to do with Uber? Also, why does the answer even matter? These are precisely the sort of questions we should ponder if we truly care about the future of Internet regulation. Twenty years after the privatization of the network backbone and the birth of the commercial web, the world has changed. The Internet is no longer just a communications network to move digital bits. Its most significant manifestations involve reshaping markets and social relationships in the physical world. These “Internet-enabled” services use digital and mobile connectivity to coordinate the distribution of resources, such as transportation services and lodging. The scale of such online/offline hybrids, including Uber, Airbnb, TaskRabbit, and Lyft, now frequently exceeds that of their long-established competitors. Additionally, their influence on basic social functions, such as transportation and housing, promises to be even more significant than their financial impact. In such an environment, we must look at regulation differently. It makes little sense to enforce a strict separation between the cyber world and the physical world when firms increasingly straddle both. Moving beyond the rhetoric of regulatory obligations primarily as limitations to be overcome, the positive value of public policy to stimulate investment and innovation should be disinterred. Notions of common carriage and public utilities, once unmoored from their historical associations with sanctioned monopolies and rate * Associate Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania. Contact: werbach@wharton.upenn.edu. I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY 136 I/S: A JOURNAL OF LAW AND POLICY [Vol. 12:1 regulation, can function as framing devices for the regulatory questions of the twenty years to come. Increasingly, their application will be to companies that operate over the network, rather than to just connectivity providers. This essay explores a future of Internet regulation that draws on the valuable attributes of longstanding doctrines to craft a viable regime for the future. Part I describes the rise of Internet-enabled network services, with Uber as the paradigmatic case. Part II explains how these services function as utilities and identifies the major regulatory conflict points. Part III speculates on how these issues may be resolved.

Kevin Werbach and Dan Hunter, The Gamification Toolkit (2015)

Kevin Werbach (2014), Reflections on Network Transitions and Social Contracts for a Broadband Era, Colorado Technology Law Journal, 13 (101), pp. 45-70.

Abstract: INTRODUCTION Transportation is an essential service in the modern world. Without access to on-demand automobiles, urban residents would have trouble getting to work and going about their lives. Those residents can’t easily check before each ride whether their driver has a valid license, no criminal record, a working car, or an accurate meter. For these and other reasons, virtually every municipality regulates taxis and car services. Those regulations, though, have downsides. They can limit companies’ flexibility and raise prices by artificially restricting supply. Uber is a service that allows car service drivers to pick up additional riders in between jobs, managed through a mobile application.1 Many people find Uber’s service faster and more efficient than taxis and car services. However, Uber generally charges more than regulated taxis; it * Associate Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania. Contact: <werbach@wharton.upenn.edu>. 1. See Nick Bilton, Disruptions: Ride-Sharing Upstarts Challenge the Taxi Industry, N.Y. TIMES, July 22, 2013, at B4. WERBACH-MACRO-V2-NOV 28.DOCX (DO NOT DELETE) 12/12/14 6:33 PM 46 COLO. TECH. L J. [Vol. 13.1 can pick and choose where and how to provide service; and it ratchets up its prices in times of high demand, sometimes by a factor of seven or more. 2 Uber’s defenders say these aren’t problems, because anyone who objects can just call a taxi. What if there are no more taxis? This is not an article about transportation. The challenge Uber poses to regulated taxi services, however, is a good analogy to the challenge that unregulated and differently regulated digital communications services pose to traditional telecommunications regulation. As we move into a broadband world, it becomes increasingly important—and increasingly difficult—to define the backstop obligations often described as the social contract. Communication is an essential service in the modern world. The primary providers of that capability have for nearly a century been subject to rules and requirements that don’t apply to most other companies in the economy. Over the past three decades, regulators have rolled back those requirements in two ways. The incumbents have been freed from restrictions deemed unnecessary or counterproductive, where competition is seen as a better way to achieve the same policy goals. And novel technologies and services have been shielded from the regulatory apparatus, either by carving out exemptions or by creating further restrictions on how the incumbents interact with them. Three of these technologies—voice over Internet protocol (VOIP), broadband Internet access, and mobile phone service—have now reached a point of maturity and adoption at which they are challenging traditional regulated telecommunications. And the incumbent telecommunications operators are looking to join them. The situation is inherently unstable. The transition from the legacy public switched telephone network (PSTN) to this emerging mesh of data-centric providers—some might call it a digital broadband migration3 —will produce great benefits for consumers, innovation, and the economy. The new technologies and providers bring a raft of new capabilities and the promise of competitive markets, rather than regulatory decisions, promoting the public interest. Yet there is a danger. An environment in which new services exist under a regulatory umbrella created for a legacy world is unsustainable when those new services become the mainstream. It depends on regulatory line-drawing that is increasingly untenable. 2. See David Streitfeld, Rough Patch for Uber Service’s Challenge to Taxis, N.Y. TIMES, Jan. 26, 2014, at B1; Dean Baker, Don’t Buy the ‘Sharing Economy’ Hype: AirBnB and Uber are Facilitating Rip-offs, GUARDIAN, (May 27, 2014, 7:30 AM), http://www.theguardian.com/commentisfree/2014/may/27/airbnb-uber-taxes-regulation. 3. See generally Michael K. Powell, Preserving Internet Freedom: Guiding Principles for the Industry, 3 J. ON TELECOMM. & HIGH TECH. L. 5 (2004) (describing the implications of the digital broadband migration). WERBACH-MACRO-V2-NOV 28.DOCX (DO NOT DELETE) 12/12/14 6:33 PM 2015] REFLECTIONS ON NETWORK TRANSITIONS 47 What if there are no more wireline circuit-switched telephones? We are now fairly far along in the evolution from analog to digital communications systems, and the grand convergence into a network of networks based around the technologies of the Internet. It is important to survey and consider the facts on the ground. It is even more important, though, to step back and consider the societal goals that animate communications policy in the first place. Standing behind the particulars of regulation is a set of broad, if imperfectly defined, normative commitments. Those commitments should not evaporate based on the configuration of the market at any given time. The means of achieving them, by contrast, cannot remain unchanged when the context changes. The difference between regulated communications markets and the bulk of the economy is frequently described in terms of social contracts.4 Social contract thinking provides a convenient way to explain why companies are subjected to obligations above and beyond the generic requirements of antitrust and consumer protection. Such language in telecommunications is especially common during periods of transition.5 The term “social contract,” however, is often thrown around in these contexts with little attention to its origins or meaning. In considering the transition to a digital broadband environment for virtually all communications and media services, social contracts provide a useful touchpoint.

Kevin Werbach (2014), No Dialtone: The End of the Public Switched Telephone Networks, Federal Communications Law Journal, 66, p. 203.

Kevin Werbach, Sharing Spectrum to Fuel Growth and Opportunity.

Kevin Werbach, Why the Court’s Net Neutrality Decision is Not So Bad.

Kevin Werbach, Don’t Call Us Rock Stars.

Kevin Werbach, MOOCs: A View from the Digital Trenches.

Kevin Werbach The Development and Diffusion of Digital Content.

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