Nov 202012
 
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For a rather long time, I’ve been thinking about the subject of:

 [...] the hijacking of the benefits of the knowledge society by those who have created the social web.

Let’s just rewind and see how it could’ve been: a society where brains, applied to ideas, developed and implemented technologies on a massive scale – technologies which became cheap enough for everyone to remove drudgery from their ordinary lives and so release the human mind for much better things.

What do we have instead?  Poorly paid – or even unpaid – worker bees (that’s you and me on Twitter and Facebook) inputting data for the software code of such a social web to generate outputs which fascinate companies and allow them to better identify their markets.

Yes.  We are now generating the data for corporations which not only make money out of us directly through advertising (Facebook and Twitter) but also sell our personal details to other organisations (food and consumer-durable manufacturers for example) in order that they may better sell their products to us.  We are now an outsourced part of this latter group of companies’ marketing departments.  Instead of costly opinion polls and focus groups, all they have to do is pay a modicum amount of money to examine Twitter’s firehose (its full complement of content to which the rest of us cannot have access beyond about a maximum of seven days of search) and thus use our freely inputted data to better sell us their products.

I go on to conclude:

[...] The problem is that these software companies have worked out a way of attracting us to sit down for free in front of our monitors and screens, and input devices various, and create content which substitutes the stuff they promised us fifty years ago was going to release us from the drudgery of manual labour.

Essentially, it would seem the long-promised knowledge economy has been hijacked and dumbed-down by the requirements of the social web.  And, right now, I really cannot see our way around it.

In reality, what we have here is a social-media software which first makes uncomplex the requirements of inputs from ourselves and, once harvested, proceeds to automatically put it all back together in order to make it sufficiently re-complexed to be of interest.

Arguably, without the software to give automated form to the content so produced, we wouldn’t have anything anyone would really want to witness.  Random 140-character text messages which related in no way to any other?  Who’d care to enjoy an afternoon of that?

So why do I return to an issue I did to the death a while ago?  Because, in the light of quite reasonable demands for defamatory reparations, it occurs to me that, in social media, we have a less than clear division between publisher and distributor.  Now I’m quite unaware if – in previous court cases in relation to, for example, obscenity trials of books or other historically significant offline content – distributors of such books ran the same risks as the publishers themselves.  But I wouldn’t be surprised if the history of our country had thrown up prior examples of both parties being asked to carry the responsibility can.

In this case, however, in particular in relation to Twitter, which is what seems to occupy our minds most vigorously at the moment, I would argue that the division between the two roles of publisher and distributor is far more difficult to delineate.  Twitter’s current Terms of Service make it very clear that each user is entirely responsible for their own content:

You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof. The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites (go to the account settings page to control who sees your Content). You should only provide Content that you are comfortable sharing with others under these Terms.

They then go on to say:

You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.

So far, so good.  Content thus generated is under the jurisdiction of – presumably – where one is resident.  Or, alternatively, one’s nationality.  Or, perhaps, where one has tweeted from.

But in any case, wherever the rules and regulations are applicable.

:-(

Form, however, is quite a different matter.  As far as the software is concerned, and Twitter’s own corporate liability, Californian law is judged to rule everything else:

These Terms and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in San Francisco County, California, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.

And the liability in question is limited thus (the bold is mine):

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TWITTER ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE TWITTER ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID TWITTER, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.

I would rule this significant and almost certainly deliberate.  I’m no expert in law, much less in Californian law, but I’m pretty sure it’ll make it easier to sell and distribute software which makes more complex and interesting dumbed-down content without running foul of legal complaints about issues of free speech than, say, its European counterparts.

What I’m really saying with all of this is that Twitter’s Terms of Service attempt to argue that its software simply distributes and does not publish.  It takes no responsibility for the bringing together of such content – and it consequently allows form to come under one legislation and content, thus defined, to belong entirely to the user.  (Though we know that even this is not true: a user cannot normally access more than a limited number of tweets back in time, whilst companies pay Twitter good money to access on a massive scale such ancient thoughts and occurrences.)

My argument, however, would run as follows: deliberately dumbing down individual ideas into 140-character gobbets and then bringing them together automatically to create interesting streams of thought involves not just the process of distribution but also the process of transformation.  We are not just talking about giving someone else the tool to publish off their own bat: microblogging (ie Twitter) is essentially different from its much more discursive and single-authored precursor – which is to say, the blogging you see in front of you right now.  Microblogging, essentially, is collaborative writing which involves many many others – and in order for it to work someone, or something, needs to sort and filter the information.

That is to say, give it shape.  Edit and give sense and sensibility to what would otherwise be a morass of idiocies.

So who are the authors who write in a microblogging site like Twitter?  Obviously the individuals who post.  But also, surely, if we’re being realistic, the software which joins as a seamless whole the activities of so many busy worker bees; which is programmed and designed from ground up to prioritise speed of transmission over reflection; and which aims above all to indicate the latest over the lasting.

Which is why we finally come to the question I pose at the top of this post: why is a company like Twitter’s social-media software not also legally responsible for what it – basically – creates? Or at the very least enables?

The software, that is – and, by extension, the company.

For if the form which it gives involves fundamental transformation of the content its “employees” end up generating, the line between content and form is far more blurred than any post-modern attempt to confuse our senses could ever achieve.

So think about it.

And then ask.

And then come back here, in order to tell me what they said.

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Nov 202012
 
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I recently pointed out how Apple’s success with its iPhone could be a case in favour of bringing back command economies.  The sort of centralised, structured and free-market-free structures that used to rule the lives of so many unhappy East Europeans.

My mother for one.

Only, as we follow the path of Huxley’s “Brave New World” into a gentle nightmare of consumerism, suddenly we realise that the Communist command economies of yore are perfectly suited to corporate capitalism.

They actually work.

And yes.  It’s true.  Whilst 20th century Communism was unable to analyse properly the complex demands of a society which depended on such a centralised proposition, latterday techniques of organising masses have so advanced in the intervening years to actually make it possible.  That we now have a variegatedly-branded Communism instead of the uniquely-recognisable hammer and sickle makes little difference: we have choice, that is true, but the choice is consumerist – and therefore finite.  As Paul so wisely points out in his above-linked-to post on dystopias:

The consumerism is something that the current government – and indeed most previous governments in this country – would immediately recognise, but there are other elements which match our government’s vision. The first is the mantra of ‘choice’. In Brave New World, everyone thinks they have choice – to play Electromagnetic Golf or Escalator Squash or Centrifugal Bumble-Puppy. Lots of ‘choice’, but all those choices meaningless, and designed to manipulate people into doing what’s to the benefit of the elite. Ring any bells?

Of course, “anything that you want as long as it’s black” is a meme that runs right back to the very start of the production-line revolution.  And whilst we fought the original Cold War on the basis not only of consumer freedoms but also other far more profound ones such as freedom of speech and expression, it seemed an honourable – indeed, quite necessary – battle we had no alternative but to engage in.

We were, of course, unhappy with the police state of a kind we had to construct on our side in order to fight the manifest evils of the likes of the Soviet KGB and the East German Stasi, but the long haul, the final defeat of oppressive Communism, did seem to reach a demonstrable resolution with the final fall of the Berlin Wall and the subsequent decline of puff-pastry body politics across Europe’s eastern flanks.

There then came another revolution: the social media revolution of baring one’s soul, being public about so many of one’s thoughts, communicating with one’s fellow man and woman – essentially, engaging with one’s democracy.  This, so we were led to believe, would usher in a whole new way of thinking and doing society: we would be open, honest and sincere; we would tell the truth; we would create a modern 21st century vision of capable consumer-producers – able and willing to exchange the fruits of the Knowledge Society ingeniously and creatively.

Only it hasn’t really turned out like that.  Not only are the old hierarchies of command and control in Apple’s iPhone ecosystem being reproduced in many corporations across the world – post-Communist order – they also find their mirror images being re-established in political systems in democracies as old as the British.

This is what has happened: we have bared our souls as no Communist citizen would ever have dared to, in the expectation of a truly brave new world.  And what we have got in exchange for all that honesty is what would appear to be a rolling process of Communist-style oppression by the backdoor.

I don’t attribute conspiracy as the main driver.  I don’t think this is fashioned or engineered.  I just think that a sad human tendency, of which 20th century Communism was a perfect example, is now recovering its poise and power in a 21st century which initially promised so very much more.

Oppression is the symptom of exaggerated hierarchy.  And hierarchy tends to reinforce itself, thus exaggerating even more the disparities.

That is all that’s taking place.  Nothing more unhappy than that.

Communism – or its capitalist playmate – has simply played the long game, and – as a result – won out handsomely over all the lovers of freedom who once populated our civilisation.

Nor is there anything we can do about it, really.

Except, perhaps, get used to the idea of making one’s way once again under the historically ever-returning yoke of oppression.

Life was ever thus.

It’s now our turn to experience it for ourselves.

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Nov 202012
 
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Yesterday, I wondered if the problem we’re now facing as far as our laws online are concerned relates to US cultural imperialism.  I remember tweeting the following two tweets. First, this one:

I’m seriously falling in love with my perception of the advantages of the US Constitution. We have a lot to learn, I think.

Then, this one:

Problem with the US is that they export their freedoms, but not their rights. No wonder we get so darned confused.

And I think it’s true.  As it slowly dawns on me that we in England – and when I say England all these times I do of course refer to English and Welsh legislation – really do not have too many cast-iron freedoms to speak freely, so I become more enamoured by the American way of enshrining such freedoms in a testable constitutional arrangement.

The truth of the matter, however, is that whilst we have become so very used to the US wanting to export us its mindset of liberty, it has been manifestly incapable of embedding elsewhere the rights I mention above – at least with any permanence, at least here in England.  So we as citizens of foreign countries learn to yearn for the opportunities to participate more vociferously in our democracies – even as our own politicians and political institutions prefer far more for us to dutifully listen than engagedly participate in significant debate and public oversight.

Yes.  This is one example where I would welcome – and I think so would you – the complete and utter consummation of a US cultural imperialism.  If only they could send us, whole and complete, not only their goals but also the tools to achieve them – that is to say, not only the desire for liberty itself but also the rights which accompany its implementation – life would become so much less confusing than it currently is.

As it is, we’re really not sure if we’re in an American frame of fair comment and free speech or in an English (and Welsh) context where we must not only step on linguistic eggshells but must also self-censor ourselves with ever greater care.

A Liberty Conundrum if there ever was one.

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