The issue isn’t Terms of Service.
There’s a general distaste for standard Terms of Service, with good reason. Most software, or social networks, more or less asks for a limitless free license to use your content however they see fit.
What people don’t seem to realize, is that this is a consequence of law not keeping up with technology, not of tech companies trying to rip you off.
Most sites demand the right to republish all content internationally, without limitations, for profit. Which sounds evil, until you realize showing ONLY you, your own content, and running ads in the margin, fits this definition. Until we make some kind of legal separation between publishing online, and broadcast / publishing in print, companies NEED to demand sweeping legal powers and protections, or face death-by-lawsuit.
The worry, however, should come into play when new media companies get acquired by old media conglomerates. At this point, legal powers over your content that were requested in good faith, come face to face with a culture based on maximizing the profit legally allowed from any and all content they hold the rights to.
The solution to this isn’t to boycott facebook, or blogger, or whoever else. The solution, hilariously, is for someone to sue someone else, so we can establish legal precedent for these situations. Unfortunately, all legal advice in these situations seems focused on avoiding litigation, and therefore the chance to actually determine what the line is.
Kitty Hawk and Post-Digital Copyright
Letting the current generation of lawmakers decide what is and isn’t permissible online is like letting the pre-flight lawmakers decide that land ownership extends infinitely up into the air.
Which, if I’m not mistaken, is exactly what some people thought should happen, in the post-Kitty Hawk USA.
This is the level of absurdity we’re talking about, when we talk about demanding that bits be treated as the legal equivalent of atoms. We’re talking about banning air travel because a spot ten thousand feet above Jim-Bob’s cabin is somehow a key element of Jim-Bob’s day to day life, and flying over unnoticed infringes on his rights.
There’s a collapsing content business because people are still trying to legislate bits into atoms, and spending countless millions on lawsuits, lobbying and hackneyed technologies to make this happen.
It won’t work. The invention of the plane made it necessary for Jim-Bob to let go of the imaginary right he had to the space above his head, the same way content industries need to let go of the imaginary value of text and images that can be instantly copied at no cost, and transmitted at no price.
I don’t care if the world worked one way for your entire career. It doesn’t work that way anymore. Making it illegal for the world to have changed just ruins any chance of developing sustainable businesses.
Put another way, prohibition created organized crime. Endless rivers of money went to criminals because, well, people were gonna drink anyway. A law that does not change behaviour isn’t a law, it’s failed governance.
Let the planes fly, because the second we realized they could, the world changed.
[Edit: apparently I am accidentally stealing this comparison from Lawrence Lessig. This isn’t shocking, because I make a point of reading as much of his work as possible. Still, apologies.]
