Anyone Who Argues Against Net Neutrality Is A Greedy Scumbag Who Wants To Take Your Money

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I've always wanted to write a salacious hit-bait headline like that. Hopefully it worked and you're reading this. So now that I've gotten your attention, here's what I really want to say... anyone who argues against net neutrality is a greedy scumbag who wants to take your money.

This week, the D.C. Circuit Court of Appeals struck down the Federal Communication Commission’s (FCC) rule protecting net neutrality. And that’s unfortunate because net neutrality is a wonderful thing. For those who don’t know, net neutrality is the principle that all internet traffic should receive free and equal service, regardless of source or content. For the past decade, this is how the internet has functioned. It didn't matter if you were reading an article on a news website, sharing your vacation pics on Picasa, or streaming Raging Bull on Netflix, you could access any content you wanted and it was all treated the same.

Net neutrality is what allowed Google, Facebook, Netflix, and Amazon to get a foothold in the marketplace and become the juggernauts they are today. Realizing the goldmine to be had by controlling access to the internet, the telecoms started implementing policies to do just that. So in 2010, the FCC passed an Open Internet Order allowing it to regulate internet companies the same way it regulates telecoms and cable companies. The goal was to keep access to the ENTIRE internet equal and open to all.

Why Should You Care?

Unfortunately, Verizon hated this, so it sued the FCC, claiming that its Open Internet Order was an overreach of federal power. The D.C. court agreed. That means it’s now legal for internet providers to:

  • Block any website they want for any reason,
  • Charge ISPs more money to host streaming content, meaning your Netflix subscription is about to increase by orders of magnitude,
  • Cap and throttle internet usage with impunity, charging higher fees for better broadband access.

So if Time Warner wanted, it could now block any website it's not affiliated with. Prefer to get your news from NBC, Fox, or NPR? Too bad. Time Warner owns CNN so that’s the only news outlet you might be able to get. Even if it decides not to block those websites outright, it can charge ISPs higher fees to carry those websites, or throttle the bandwidth given to those websites making them load much slower. HuffingtonPost has a pretty solid rundown about how the internet might look in the absence of net neutrality.

Ultimately, the death of net neutrality will mean that a few giant companies can discriminate against sites and content they don't like and funnel your internet experience in ways they deem appropriate (during oral arguments, Verizon’s attorney admitted they would be pursuing different economic schemes if not for the Open Internet Order). With the internet providers controlling content, fewer and fewer startups will be able to get a foothold in the market, significantly affecting innovation.

Net neutrality opponents have argued that so much traffic comes from "big video sites such as Netflix and YouTube, [that it] clogs up the system and imposes delays on everyone else. These companies should be paying their fair share." Which sounds eminently reasonable until you realize that Verizon made $2.23 billion in the third quarter of 2013 alone, so it's not exactly hurting for cash.

Pro-neutrality advocates have argued that there's plenty of bandwidth to go around and charging extra because of the nature of the content is "naked corporate greed." I agree, and so do Facebook, Google, Yahoo, Amazon, and Netflix, who favor net neutrality and stand to lose a lot of money if the telecoms get their wish.

How This Affects Artists

The loss of net neutrality is bad for everyone, but it’s especially bad for artists because art is frequently visual in nature, and unlike text, visual media requires a lot of bandwidth. If I’m a filmmaker and I put my latest film on YouTube, how likely are you to watch if it takes 10 minutes to load because you’re on a lower-tiered broadband plan which doesn’t include video streaming? If I write a song that contains explicit sexual content, how will I get anyone to listen if Comcast starts arbitrarily banning content it deems to be pornographic in nature?

The end of net neutrality becomes another way for large corporations to trample the rights of individual artists, something I’ve railed about on this site for a while now. Limiting the artist’s ability to display and promote his or her work not only affects the individual’s ability to make a living, but it affects society at large because it stifles creativity and limits innovation.

Why There’s Still Hope

The Atlantic's Kevin Werbach offers some credible arguments that, despite the ruling, there’s some hope for the future. First, even though the D.C. court’s ruling now eliminate the only rule preserving net neutrality, no rules even existed before 2010. And it’s not like we were plunged into an internet-restricted hellscape during that time. In fact, immediately following the court’s ruling, Verizon announced that there would be no changes to its services for customers.

Second, the court made it’s decision on a fairly limited technicality and gave the FCC a roadmap for fixing this whole mess. In a nutshell, if the FCC placed internet services into the same category as it did the telecom giants, it would be able to reinstate the Open Internet Order in some form. The fact that internet providers are not classified as "common carriers" like the telecoms is the main reason the rule was invalidated by the court. And throughout the opinion, the court repeatedly references the FCC’s “choice” or “decision” to classify internet providers differently than telecoms.

Given the Commission’s still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” see supra at 9–10, such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

Granted, reclassifying broadband providers as common carriers would require some legal jiu-jitsu by the FCC, and it’s unclear to me that the law would easily permit FCC Chairman Tom Wheeler to make that choice. Even if he could, he might not want to since it would probably result in a  political battle with congressional Republicans, who, it should be noted, absolutely hate net neutrality. Right now, the FCC is more likely to appeal the court’s ruling than reclassify. But reading the decision it became clear to me that the court was telling the FCC how to regain the upper hand. The decision repeatedly slaps down Verizon's claims and states explicitly that it “think[s] it quite reasonable to believe that Congress contemplated that the Commission would regulate [broadband internet service providers].”

Probably the best way to resolve the matter is to get Congress to pass pro-net neutrality legislation, which is obviously easier said than done. Luckily, there’s a lot of money in this fight and for once, it’s not a case of the big guys (i.e. big corporations) lobbying against the little guys (i.e. you). Sure, Verizon, Comcast, and Time Warner have a lot of money to lobby Congress. But you know who else has a lot of money to lobby Congress? Facebook. Google. Amazon. Yahoo. And they fucking love net neutrality.

Off With Their Heads! Graphic Content On Facebook Is Judged By A Disturbingly Uneven System

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I've never seen a video of someone being decapitated. I don't think I could handle it, frankly. Whatever morbid curiosity I possess, there are limits to the lengths I'll go to satisfy it. But if your curiosity was harder to tame and you wanted to watch such a video, then you probably won't have to look very far. A few days ago, Facebook lifted a six month old ban on decapitation videos (the ban originated over a user-posted video that showed a Mexican woman beheaded for committing adultery). Facebook now allows users to share graphic videos of decapitations because, according to a Facebook rep:

When people share this type of graphic content, it is often to condemn it. If it is being shared for sadistic pleasure or to celebrate violence, Facebook removes it.

Condemnation or not, Facebook backpedaled today and removed the video that started the whole mess after a public outcry that included Facebook users and British Prime Minister David Cameron. Facebook insists, however, that it didn't change any of its policies, nor will it inherently prevent other violent videos from being posted in the future. Each video will be reviewed on a case by case basis. Turns out that public pressure was a good tool to use in this case because there really are no legal mechanisms that prevent Facebook from allowing users full reign to post whatever content they want. Here's why...

1. Facebook doesn't owe a contractual duty to protect its users from any kind of harm. In fact, Facebook states pretty clearly in its terms and policies that it does not

control or direct users' actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, or any user of Facebook.

2. Even if Facebook didn't have contractual protection through the above disclaimer, any tort-based lawsuit against the social network would fail because federal law absolves internet service providers like Facebook from legal responsibility when obscene content is posted by their users. The Communications Decency Act (CDA), which was originally passed in 1996 to regulate pornography on the internet, states that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It's worth noting that the CDA also prevents users from suing Facebook if Facebook removes content it deems to be obscene or violent. This means that the CDA is a Teflon-coated Kevlar shielded brick wall sprayed in bullet repellant; Facebook is essentially lawsuit-proof.

So if Facebook can't be sued for letting users post the videos, why did it lift the ban after six months only to backtrack when the public freaked out? My guess is that in the absence of litigation, public opinion is all Facebook can rely on to drive its policies. And, until recently, the public has been largely silent on the issue of graphic, violent content. In other words, Facebook assumed that people didn't care about violent content, so it let users upload the videos until the outcry became impossible to ignore.

But this raises a question that I actually find more interesting. Why has Facebook's handling of violent content been so much less even than its handling of sexual content? (For those who don't know, Facebook has a blanket policy to remove all nude media from user accounts, including breastfeeding pictures.) Call me crazy, but I have a hard time understanding why a photo of a mother breastfeeding her child, even when her breast is fully exposed, is more offensive than a video showing some poor fellow having his head sawed off, even when the reason for posting that video is to criticize and condemn the act. And it's not like the public has been silent on this issue either. When I googled "Facebook bans nude pictures," I got 38 million results.

I personally don't have a problem with Facebook censoring any user content (the First Amendment, remember, only applies to government censorship... Facebook as a private party can censor as much as it wants), but I'd like for its censorship policies to at least have some semblance of uniformity, especially if it won't explain why a photo of a boob is somehow more onerous than a severed head, or why decapitation videos get individual reviews by the Facebook team, while nude pictures get a ban hammer. I hope that we can convince Facebook that sexual content deserve at least the same type of case-by-case scrutiny that it gives to decapitation porn. If not, I fear the puritanical society we may one day become.

"Caveat Emptor" or Why It's [Kind of] Okay For Facebook and Instagram To Steal From You

"If you are not paying for it, you're not the customer; you're the product being sold."

- Meta-Filter user blue_beetle

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I had planned on writing about Instagram's massive PR shit-storm this week so I could address the ramifications of its new terms of service; you know, where they basically said to their users "you still own your copyrighted work, but we're going to strip away all the rights surrounding that so we can make money off your work and you can't do anything to stop us." [If you don't know, Instagram proposed that they could sub-license photos you posted in the app to other entities such as advertisers without paying you, the copyright owner]. I ended up not writing about it because the backlash was so big and swift against the social network that they backpedaled, reverting to their old terms of service.  Thus ended the issue in my mind.

Then I had a change of heart because I realized that this was a good time to discuss a topic that I think everyone should be well versed on: caveat emptor, a.k.a. let the buyer beware.  Caveat Emptor has its roots in property law and the idea is pretty simple: you should do the research when you buy something.  If you fail to cross all the "t"s, dot all the "i"s, you don't have any legal recourses when you buy something that turns out to be defective. When you sign a contract, courts presume that both sides know what they're getting themselves into.  That's why you generally can't plead ignorance when a contract screws you over.

So when blue_beetle says "if you are not paying for it, you're not the customer; you're the product being sold" he means that when you sign up for a Facebook or Instagram account, you have to assume that these services want something from you, and you should read their terms of service and find out what you're getting into.  And truth be told, I [mostly] agree with blue_beetle.  Now I certainly don't condone someone profiting off your copyright without giving you a cut.  And I really get up in arms when large corporate copyright holders try to stick it to individual artists who don't have the power or wherewithal to fight back.  That violates everything I stand for.  But people do need to have  certain expectations when they sign a contract with these services - and make no mistake, a Facebook or Instagram account is a legally binding contract.  These services are not charity organizations; they are corporations (or rather, a single large corporation due to Facebook's acquisition of Instagram earlier this year) and the paramount driving force of a corporation is to make lots and lots of $$$.  If that means exploitation of its user base, then so be it.

When Facebook shares your personal information with advertisers, you don't have an expectation of privacy to that information.  After all, you shared it freely and willingly.  And even if you limit which users can see that information with Facebook's privacy settings, your information is never private to Facebook - your contract is with them, not with other Facebook users.  Meanwhile, if Instagram decides they want to license photos you share to advertisers, then can do it simply because you agreed to their terms of service.  Is it ethical?  Not really.  But is it legal?  Unfortunately it is.

I believe that the first step to controlling your artistic destiny is becoming vigilant to the situations you get yourself into. When you post a picture to Facebook or Instagram, you should understand that they will take some level of ownership over that picture.  Despite my many gripes, I will be sticking with Facebook and Instagram for the time being.  I understand that they want something from me and I'm willing to accept that in return for the personal and commercial benefits I derive from using those social networks.

But just because something is legal doesn't mean we have to let them get away with it.  There are other ways to measure success beyond a lawsuit.  For example, exploiting users' copyrighted work as Instagram tried to do this week is pretty bad policy.  We know that because the level of apoplexy that erupted forced Instagram to scurry back into the warm (if financially shallow) embraces of its old policies.   Instagram knows isn't the only photo sharing app out there with neat filters and it learned that if it can't work WITH users instead of against them, well there's always Flickr and Hipstamatic waiting to take your business.  And they'll be much more agreeable to having terms that benefit the user.

Happy Holidays everyone!

[Author's correction: in my post a few weeks ago about the Facebook copyright policy issue, I stated that Facebook can't arbitrarily change its terms of service once you sign them.  While that is generally correct in normal contract situations, that is not how it works with services like these.  Both Facebook and Instagram state in their terms of service that they may materially change their terms at will, and by continuing to have an account with them, you agree to those  new terms.  I think that such terms are probably bad policy as well, but I see nothing legally wrong with them.  If there are any contracts attorneys out there who are willing to educate me otherwise, I'm all ears.  I'd love to hear that such terms violate some law or another.]

Your Copyrights Are Already Protected on Facebook

I was going to let this story slide, but it seems to be driving everyone into a frenzy - including some very intelligent people whom I respect greatly - so I thought I would take a moment to address it here. If you've been on Facebook anytime in the last week, then you've probably seen your friends posting this notice on their timelines:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...

Short version: Facebook is not seeking ownership of your copyrighted works, nor is it doing anything with your copyrighted works that you don't already know about. Posting a notice about it doesn't give you any copyright protections than you didn't already have.

Long version: I understand the talismanic purpose of posting something like that. If enough people do it, it functions like a protest against some of Facebook's more heinous sharing strategies; a preemptive strike against a company that seems to change its terms of service on a whim. But posting that notice is not legally binding. Let me state that again so that it is clear and definitive: posting that notice is completely, totally, and unequivocally useless from a legal standpoint. Here's why:

(1) As I've mentioned before, the moment you create a work of artistic expression, it belongs to you. You are the copyright holder and you are never required to declare to anyone that your copyright has attached to those works. By law, it attaches from the moment it is created.  If, however, you have reason to believe that your copyright has been outright stolen by Facebook or as a result of their practices, that's another matter for which you should seek legal representation.

That copyright covers photos, videos, drawings, writings... anything creative that you make. But copyright does not cover facts or ideas. So while your status update may be copyrightable, your relationship status, name, and other biographical information are not. That means Facebook can share that info without your consent. Furthermore, not all the content on your timeline is your copyright. For example, if your friend posts a photo on your timeline, then you are NOT the copyright holder unless you took the photo.

(2) The Facebook terms of service do not claim ownership over your copyrights, and they have not been changed to claim ownership over your copyrights. The Facebook legal terms page clearly states that:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

Instead, Facebook has a license to use your copyrighted works for as long as you possess a Facebook account, but you can limit how much of your information Facebook shares with advertisers and other users through your use of the privacy settings.  And for the record, that's always been the case.

(3) By creating a Facebook account, you have entered a valid, legally binding contract with Facebook.  As a result, there are two effects. First, you cannot retroactively change the terms of a contract just because you don't like the terms.  In other words, you've agreed to let Facebook license your copyrighted works simply by signing up for an account and you can't rescind that term.  You can't plead ignorance to the terms either because in contract law, it is presumed that both sides know what they're getting into before they sign on the dotted line.

Second, Facebook owes you a duty to live up to their side of the bargain as well.  You've already agreed to let Facebook license your copyrighted materials, so it can't just change its terms of service to say "we now own all the material you previously licensed to us."  To do so would be a breach of contract.

But looking beyond the law for a moment, there seems to be a fear that Facebook can arbitrarily change its terms of service to dupe you into relinquishing your copyrights. Certainly Facebook can change its policy to make users sign away their copyrights but why would it? It would be a massive PR migraine, and considering the IPO debacle, Facebook isn't going to engage in an activity that puts its reputation in further jeopardy. If Facebook were to make a massive change like that to its user agreement, it would only apply to new users who sign up after the change is made, not to any of the one billion existing Facebook users.

(4) The fact that Facebook is publicly traded means nothing and has no bearing on the copyright ownership situation. As far as I can tell, "open capacity entity" isn't an actual thing and therefore doesn't mean anything.  Also, it's the "Berne Convention," not the "Berner Convention."

(5) Your copyrights are already protected, regardless of what Facebook does, but what about your privacy? I've seen a lot of people confusing the copyright issue with the privacy issue, but they're not the same. The copyright issue deals with things that you've already posted to Facebook and whether Facebook's use of your copyrighted works constitutes copyright infringement (it doesn't). Privacy deals with who Facebook can share that information with. I won't get into the privacy issue here except to say that you can't claim a right to privacy when you voluntarily place your copyrighted works  in a public or semi-public place, such as your Facebook profile. [Obviously this is a bigger issue, but since it's not at stake here, I'll save it for another time.]
So once again, don't bother posting a copyright notice on your Facebook timeline. All you're doing is wasting valuable space that could be better filled with kitten videos.