PHUTATORIUS
Here's my understanding of the recent Facebook Terms of Service Crisis:
When you post something to your profile, reports of it may (but not necessarily do) appear on your friends' pages. And of course Facebook allows you to post content on your friends' pages, e.g., by writing on your friends' walls. If you decide (and I'm close) that you've had enough of Facebook, and you delete your profile, everything on your page evaporates, but traces of your Facebook activity will remain on your friends' profiles.
More...
This isn't a matter of Facebook policy; it's a programming problem that they haven't yet figured out how to fix. (It's a content and context problem, too. If I comment on Friend A's status, and Friends A, B, and C respond to my comment, the whole stream becomes a bit of a non sequitur if I bug out of Facebook and withdraw my comment. But my understanding is that Facebook hasn't decided that my comment to Friend A should survive my profile's demise — because it's not in a position right now to follow through on that promise.)
Over the weekend Facebook amended its Terms of Service to inform its users that right now they can't completely delete their content from the site. Everybody flipped out, Facebook has now gone back and removed the offending language from the TOU, and the out-flippers, including People Against the New Terms of Service (oh, praise the Lord for Internet organizing! what's next on the agenda: Darfur or the iPhone's battery life?), are rejoicing over their hard-fought victory for user privacy. This even though nothing about how Facebook works has changed.
For clarity's sake, Brothers and Sisters, let's apply an offline analogy: imagine that I've been hitting you with a stick for a couple of days, and I suddenly decide that it would be fairer to you if, while I hit you with the stick, I said, "I'm hitting you with a stick. You agree to allow me to hit you with the stick." You become outraged, you insist that you never agreed to let me hit you with a stick, and you demand that I stop telling you that I'm hitting you. So I stop talking, and I continue hitting you with the stick. Hooray for you, B/S: you really stuck up for yourself.
To be fair, the language that Facebook introduced in its amended TOS was pretty broad, and it was helpful to have some clarification from Mark Zuckerberg on what the amendment meant. And of course TOS don't just inform users about how the service works; they mean to bind them contractually and limit the company's liability.
Still, though: if the ebb and flow of the Sturm und Drang here teaches anything, it's that you can do what you want with your customers' content, but for God's sake, don't tell them about it.
Showing posts with label Facebook. Show all posts
Showing posts with label Facebook. Show all posts
Wednesday, February 18, 2009
Sunday, January 25, 2009
Do Subscribers Have Free Speech Rights Against Facebook?
PHUTATORIUS
A few posts ago I wrote that "there is no free speech issue" when Facebook — which is not a government actor — censors the expression of its users. I may have spoken too fast. What I wrote is generally true, but you see, Facebook — like most serious-minded dotcoms — is based in California. And California is the home of the famous/infamous (pick a side) Pruneyard decision.
If you surveyed a crowd, and you asked each respondent to tell you what's special and unique about California, I don't doubt you'd get all sorts of answers. If someone in that crowd were a lawyer, and that lawyer were very much a dork, he might mention Robins v. Pruneyard Shopping Center, a 1979 decision of the California Supreme Court.
More...
In Pruneyard, student activists sued the Pruneyard Shopping Center, a 21-acre privately-owned shopping mall, after mall security guards kicked them out for violating Pruneyard's rules against leafleting and petitioning on its premises. The California Supreme Court held that the students had a limited state — not federal — constitutional right to engage in political speech on Pruneyard's property. And it went on to write that Pruneyard violated that free speech right.
Driving the Court's thinking was its concern that traditional public market spaces — the old "Main Streets" downtown — were giving way to privately-owned shopping centers. The justices thought that the speech rights California citizens enjoyed in these Main Street spaces would lose quite a bit of their heft if a town's center of gravity shifted to a mall and the mall's ownership were able to restrict speech on mall property.
The Pruneyard decision was controversial at the time (it went up to the Supreme Court); it's controversial now (some California Supreme Court justices want to overrule it); and not a single state has followed California's lead on this issue. Despite all this, it remains the law in California that although most private property owners can invite and exclude whomever they please, the select few who manage vast, populated public spaces — like shopping malls — may not infringe the free speech rights of the visiting public, unless that speech would "interfere with normal business operations."
Enter Facebook. Facebook isn't a mall: the space at issue here isn't "physical" — it's comprised of cyberspace (or server space, depending on your point of view). But that space provides a public forum for more than 150 million subscribers. Contrast Pruneyard Shopping Center, with its piddling 25,000-per-day foot traffic. The space Facebook has created is commercial space, to be sure, but what Facebook is selling in that space is a communications service. That is, it hasn't just invited its millions of users to Facebook to shop, like Pruneyard did; we're summoned to Facebook to communicate with one another. The rationales under California law for extended free speech protection to Facebook's subscribers are arguably even stronger than those discussed in Pruneyard.
I leave it to the commenters to discuss whether or not it makes for good policy, but legally it seems a no-brainer that the Pruneyard principle applies to any well-trafficked online forum that (1) cultivates user-generated content and (2) is based in California. That doesn't mean Burger King gets to mount a core attack on Facebook's business model: under Pruneyard Facebook doesn't have to tolerate users who disrupt "normal business operations. But if Facebook continues down its current censorious path, it could find itself in California state court — and it could lose.
A few posts ago I wrote that "there is no free speech issue" when Facebook — which is not a government actor — censors the expression of its users. I may have spoken too fast. What I wrote is generally true, but you see, Facebook — like most serious-minded dotcoms — is based in California. And California is the home of the famous/infamous (pick a side) Pruneyard decision.
If you surveyed a crowd, and you asked each respondent to tell you what's special and unique about California, I don't doubt you'd get all sorts of answers. If someone in that crowd were a lawyer, and that lawyer were very much a dork, he might mention Robins v. Pruneyard Shopping Center, a 1979 decision of the California Supreme Court.
More...
In Pruneyard, student activists sued the Pruneyard Shopping Center, a 21-acre privately-owned shopping mall, after mall security guards kicked them out for violating Pruneyard's rules against leafleting and petitioning on its premises. The California Supreme Court held that the students had a limited state — not federal — constitutional right to engage in political speech on Pruneyard's property. And it went on to write that Pruneyard violated that free speech right.
Driving the Court's thinking was its concern that traditional public market spaces — the old "Main Streets" downtown — were giving way to privately-owned shopping centers. The justices thought that the speech rights California citizens enjoyed in these Main Street spaces would lose quite a bit of their heft if a town's center of gravity shifted to a mall and the mall's ownership were able to restrict speech on mall property.
The Pruneyard decision was controversial at the time (it went up to the Supreme Court); it's controversial now (some California Supreme Court justices want to overrule it); and not a single state has followed California's lead on this issue. Despite all this, it remains the law in California that although most private property owners can invite and exclude whomever they please, the select few who manage vast, populated public spaces — like shopping malls — may not infringe the free speech rights of the visiting public, unless that speech would "interfere with normal business operations."
Enter Facebook. Facebook isn't a mall: the space at issue here isn't "physical" — it's comprised of cyberspace (or server space, depending on your point of view). But that space provides a public forum for more than 150 million subscribers. Contrast Pruneyard Shopping Center, with its piddling 25,000-per-day foot traffic. The space Facebook has created is commercial space, to be sure, but what Facebook is selling in that space is a communications service. That is, it hasn't just invited its millions of users to Facebook to shop, like Pruneyard did; we're summoned to Facebook to communicate with one another. The rationales under California law for extended free speech protection to Facebook's subscribers are arguably even stronger than those discussed in Pruneyard.
I leave it to the commenters to discuss whether or not it makes for good policy, but legally it seems a no-brainer that the Pruneyard principle applies to any well-trafficked online forum that (1) cultivates user-generated content and (2) is based in California. That doesn't mean Burger King gets to mount a core attack on Facebook's business model: under Pruneyard Facebook doesn't have to tolerate users who disrupt "normal business operations. But if Facebook continues down its current censorious path, it could find itself in California state court — and it could lose.
Tuesday, January 20, 2009
Facebook Fascists Blitz the King
PHUTATORIUS
First, Nipplegate. Now this: Facebook pressures Burger King to shut down its "sacrifice ten friends for a free Whopper" promotion app. Dunno which is worse — that Facebook's oligarchs are foisting a John Ashcroft sensibility about areolas as a community norm, or that they're now regulating speech on their servers to protect their own self-interest.
More...
Spokespersons for both companies quickly went to work to spin the awkward, rat-smelling resolution to this controversy. Burger King's went on about what a "great sport" Facebook was about the promotion, before explaining that it had "decided to conclude the [friends-for-Whoppers] campaign." Facebook's mike-monger went positively Orwellian:
Uh, speaking of Whoppers — wha? Just how did Burger King's app fail the expectations of users? The King offered a coupon for a free Whopper for every ten deleted friends. As I understand it, that's exactly what His Flame-Broiling Majesty delivered.
Let's be clear what happened here. Facebook didn't like the Burger King campaign, because the "network effect" principle says that Facebook makes more money if Facebook users have more friends. Facebook regarded a friends-for-Whoppers trade as an existential (if ultimately not very serious) threat to its business model, it threatened to kick Burger King off Facebook, and BK caved.
The logical extreme of this policy, of course, is that Facebook ultimately requires a satisfactory explanation from any user before he/she can delete a friend.
I suppose this is the price we all pay when we sign up for our free accounts: we play by Facebook's rules. There's no "free speech" issue here per se, as these are Facebook's servers, and they can host whomever they choose and impose whatever conditions they want. But neither can it be said that we're all privileged beneficiaries of Facebook's programming and hosting largesse — sure, we get to "throw squids" at each other and take "personality tests" that match us up with pop stars, but in exchange they're compiling a gigantic database chock full of our personal information to review, parse, dissect, and sell to advertisers for tons of money.
So maybe it's not too much to ask for just the slightest of revisions to our "social contract" with these guys: e.g., how's about when somebody like BK comes up with something brilliant and funny, you tip your hat to them and let 'em get on with their business, even if the joke's just a little bit on you? In consideration of this promise, we'll agree not to call you a bunch of soulless profiteering assheads.
First, Nipplegate. Now this: Facebook pressures Burger King to shut down its "sacrifice ten friends for a free Whopper" promotion app. Dunno which is worse — that Facebook's oligarchs are foisting a John Ashcroft sensibility about areolas as a community norm, or that they're now regulating speech on their servers to protect their own self-interest.
More...
Spokespersons for both companies quickly went to work to spin the awkward, rat-smelling resolution to this controversy. Burger King's went on about what a "great sport" Facebook was about the promotion, before explaining that it had "decided to conclude the [friends-for-Whoppers] campaign." Facebook's mike-monger went positively Orwellian:
We encourage creativity from developers and companies using Facebook Platform, but we also must ensure that applications meet users' expectations.
Uh, speaking of Whoppers — wha? Just how did Burger King's app fail the expectations of users? The King offered a coupon for a free Whopper for every ten deleted friends. As I understand it, that's exactly what His Flame-Broiling Majesty delivered.
Let's be clear what happened here. Facebook didn't like the Burger King campaign, because the "network effect" principle says that Facebook makes more money if Facebook users have more friends. Facebook regarded a friends-for-Whoppers trade as an existential (if ultimately not very serious) threat to its business model, it threatened to kick Burger King off Facebook, and BK caved.
The logical extreme of this policy, of course, is that Facebook ultimately requires a satisfactory explanation from any user before he/she can delete a friend.
I suppose this is the price we all pay when we sign up for our free accounts: we play by Facebook's rules. There's no "free speech" issue here per se, as these are Facebook's servers, and they can host whomever they choose and impose whatever conditions they want. But neither can it be said that we're all privileged beneficiaries of Facebook's programming and hosting largesse — sure, we get to "throw squids" at each other and take "personality tests" that match us up with pop stars, but in exchange they're compiling a gigantic database chock full of our personal information to review, parse, dissect, and sell to advertisers for tons of money.
So maybe it's not too much to ask for just the slightest of revisions to our "social contract" with these guys: e.g., how's about when somebody like BK comes up with something brilliant and funny, you tip your hat to them and let 'em get on with their business, even if the joke's just a little bit on you? In consideration of this promise, we'll agree not to call you a bunch of soulless profiteering assheads.
Tuesday, November 25, 2008
Here's a Revenue Model for You
PHUTATORIUS
Yes yes yes, that's great. You can use it to upload pictures and tell people what bands you like. But how is it going to MAKE MONEY?
"Well, the plan is to exploit folks' predilections for narcissism and social posturing to gather all sorts of information about them. Then we'll sell them specially-targeted ads based on that information. When that practice sets off the Privacy Dorks, we'll cave and make the behavioral ads optional. The Privacy Dorks will opt out, but who wants to know what's on THEIR grocery lists, anyway?
But this is just the tip of the iceberg. The real trick here is to lure in the spammers. When they arrive, as of necessity they must (this being the Internet, after all), we'll slap a lawsuit on them. We'll sue the bajeezus out of them under the CAN-SPAM Act.
And the court will award us $873 million in damages. Pardon me while I write that out checkbook-style for you: EIGHT HUNDRED AND SEVENTY-THREE MILLION DOLLARS. That's more than twice our projected revenue for the calendar year. And that's just from that one dude in Canada. Tons more where he came from, right?"
Seriously, though: you won't be able to collect $873 million from that dude in Canada. I mean, you'll be lucky to get 873 DOLLARS. Right?
"Nah nah nah nah! I can't hear you! We're in the money! We're in the money! We've got a lot of what it takes . . ."
[fade out]
Yes yes yes, that's great. You can use it to upload pictures and tell people what bands you like. But how is it going to MAKE MONEY?
"Well, the plan is to exploit folks' predilections for narcissism and social posturing to gather all sorts of information about them. Then we'll sell them specially-targeted ads based on that information. When that practice sets off the Privacy Dorks, we'll cave and make the behavioral ads optional. The Privacy Dorks will opt out, but who wants to know what's on THEIR grocery lists, anyway?
But this is just the tip of the iceberg. The real trick here is to lure in the spammers. When they arrive, as of necessity they must (this being the Internet, after all), we'll slap a lawsuit on them. We'll sue the bajeezus out of them under the CAN-SPAM Act.
And the court will award us $873 million in damages. Pardon me while I write that out checkbook-style for you: EIGHT HUNDRED AND SEVENTY-THREE MILLION DOLLARS. That's more than twice our projected revenue for the calendar year. And that's just from that one dude in Canada. Tons more where he came from, right?"
Seriously, though: you won't be able to collect $873 million from that dude in Canada. I mean, you'll be lucky to get 873 DOLLARS. Right?
"Nah nah nah nah! I can't hear you! We're in the money! We're in the money! We've got a lot of what it takes . . ."
[fade out]
Subscribe to:
Posts (Atom)