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Wednesday, January 07, 2015

In Defense of Facebook Copyright Disclaimer Status Updates (!!!)

Every few weeks, it seems, Facebook unilaterally changes its terms of service, by providing something like actual or constructive notice to its members of the new terms. Often, the new terms offend people by making, or being believed to make, either privacy or licensing claims with respect to intellectual property posted by users. Sometimes, Facebook doesn’t even actually change its terms, a rumor just comes about that it has changed its terms (some “contracts” these are, that are spread primarily by rumor).* Invariably, a bunch of people then decide that, hey, goose, gander, if Facebook can unilaterally change the terms of our agreement by presenting new ones where, theoretically, a user might see them, then a user can unilaterally change the terms of our agreement by presenting new ones where, theoretically, some responsible party in Facebook might see them. Accordingly, they post Facebook statuses declaring that they reserve all kinds of rights in the content they post to Facebook, and expressly denying that Facebook acquires any rights to that content by virtue of that posting.

That’s not an obviously stupid notion, at least to the lay conception of how law ought to work (i.e., evenhandedly). But after each of these public convulsions, the wise heads of the media, blogosphere, and the like leap to service to reassure(?) the public that no, you can’t unilaterally change Facebook’s terms, even though Facebook can unilaterally change yours. (Just from the last few days, we have, for example, WaPo, CNN, Snopes, and Cnet.)

I’d like to defend the laypeople against the insiders (under the fold).

Let us assume that the media graybeards are right. I have my doubts, largely for the reasons expressed with great force by Radin (i.e., why should we pretend that the Facebook terms of service are real contracts in the first place, when that’s obviously nonsense?). But let us be conventional here, and assume that under the best interpretation of current U.S. contract doctrine Facebook does indeed have the power to set, and unilaterally change, the terms of service that apply to people who wish to make use of their intellectual property and server space, and that users do not have the similar power to set and unilaterally change the terms under which Facebook uses their intellectual property and personal information.

What, then, should we think about what’s going on in the heads of people who post the disclaimers as their Facebook statuses? Are they merely ignorant? Are they worse than ignorant---are they profoundly deceived about the nature of our legal system, like the “sovereign citizens” who believe they can immunize themselves from taxes by writing some magic words on their IRS forms?

To the contrary, I think the Facebook status-updaters reflect both cause for hope and cause for worry about our legal system. The cause for worry is that the system does seem to present itself as magic words. The Facebook status updates, like the protests of the sovereign citizens (but much more mainstream), seem to me to reflect a serious alienation of the public from the law, in which the law isn’t rational, or a reflection of our collective values and ideas about how we ought to treat one another and organize our civic life. Instead, it’s weaponized ritual, a set of pieces of magic paper or bits on a computer screen, administered by a captured priesthood, which the powerful can use to exercise that power over others. With mere words, unhinged from any semblance of autonomy or agreement, Facebook can (the status-updaters perceive) whisk away your property and your private information. This is of a kind with the sort of alienation that I worried about over the last few posts, but in the civil rather than the criminal context: the perception that the law is something done to one, rather than something one does with others as an autonomous agent as well as a democratic citizen. Whether this appears in the form of one-sided boilerplate contracts or petty police harassment, it’s still potentially alienating, and, for that reason, troubling.

And why shouldn’t they see the civil law that way? From the perspective of an ordinary citizen, when they interact with the civil law, it’s usually in the form of some more powerful party erasing, as Radin puts it, their rights. And contract law isn’t the only culprit, as many industries routinely pair one-sided contracts of adhesion with procured legislation that preempts state consumer protection law en masse, criminalizes otherwise ordinary uses of otherwise ordinary consumer goods, and allows more powerful parties to deny ordinary people a day in court. Does an ordinary consumer, who does not own a business or commercial property, ever have a good interaction with the law, one in which it’s used as a tool to make fair agreements with other people (the Hayekian conception of the common law, so loved by libertarians) rather than as a fence imposed by those who are more powerful to bound his or her world?

But the cause for hope is that those who post the Facebook magic words still seem to think that the law represents some kind of valuable reciprocity. Rather than viewing the power of legal magic words as one-sided, the way relative insiders like those linked above from the Post, CNN, etc., do, these outsider citizens imagine that legal magic words are two-sided, that they can turn around and use the same magic to reclaim their rights as those with control over money and power use to take them away.

It seems to me that this is a perception that we insiders should encourage, and that we should work to bring it about that that happy perception accurately reflects the world.

I also think that social science and legal scholarship should come together to investigate this alienation hypothesis. I might be totally wrong: maybe the combination of petty law enforcement and adhesive contracts are not the chief ways that ordinary people interact with the legal system. Or maybe I’m right about that interactional claim, but wrong about its implications for perceptions the legal system: maybe people do nonetheless see the legal system as a more-or-less fair way of ordering our common lives as well as creating a framework for private ordering.

* Incidentally, the comforting media reassurances that, "don't worry, Facebook isn't actually making any claims on your data," are, as I read its "data use policy," less than fully accurate. While it is true that Facebook does not claim ownership of intellectual property posted to the service, it does say the following:

While you are allowing us to use the information we receive about you, you always own all of your information. Your trust is important to us, which is why we don't share information we receive about you with others unless we have:
received your permission;
given you notice, such as by telling you about it in this policy;
or removed your name and any other personally identifying information from it.

As I read that passage, the "or" is quite fraught: it suggests that Facebook may use "your information" at will on (constructive) notice, regardless of whether it has explicit permission, and accordingly amounts to a claim of an unlimited license to reproduce, make derivative works from, and publicly perform any and all copyrightable material one happens to have shared with it on such notice. Imagine if I sent an e-mail to a movie studio telling it that as a condition of my allowing one of its DVDs to sully my computer, viewing the advertisements contained in its unskippable previews, etc., I claimed a right to share "its information" with others on mere notice!

Posted by Paul Gowder on January 7, 2015 at 02:47 PM in Current Affairs | Permalink


That "or" is quite ungrammatical too. Does that make a difference? Or is the meaning too clear? The grammatical way of putting it would be: "unless at least one of the following conditions is true..."

Posted by: Balaustion | Sep 29, 2015 8:00:45 AM

That "or" is quite ungrammatical too. Does that make a difference? Or is the meaning too clear? The grammatical way of putting it would be: "unless at least one of the following conditions is true..."

Posted by: Balaustion | Sep 29, 2015 8:00:39 AM

It is comforting to know that juries are made up of Facebook victims, some of whom are aware of "jury nullification."

Posted by: Jimbino | Jan 8, 2015 12:09:31 PM

At some point there is going to be a large scale test case against one of the major social networks at which point, their collective terms and conditions will I am sure be scrutinised in minute detail..... at which point we will discover just what we have all permitted in our name!

Posted by: Emma | Jan 8, 2015 6:27:09 AM

Thanks Dave, I'll look for it!

Posted by: Paul Gowder | Jan 7, 2015 3:10:29 PM

You should read some of Zev Eigen's recent experimental work on the behavioral effect of terms and conditions - you'd find it congenial to your views.

Posted by: dave hoffman | Jan 7, 2015 3:00:16 PM

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