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.