The Challenge Rambles and riff raff about all this and that

Legislation must speed up (period)

Recent news about changes on Facebook's ToS have spread like wildfire. To make the legal mambo-jumbo short: users renounce to all their content's rights and hand them to facebook (depending on the privacy setting).

Since controversy did not wait long, Mark Zuckerberg decided to post at Facebook's blog to try and clarify things a little bit.

While witnessing the entire soap opera and especially while ruminating Mark's reply it is quite evident that the never seriously addressed problem of an ever-outdating legislation is at the core of the entire thing:

When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they've asked us to share it with. Without this license, we couldn't help people share that information.

Facebook's argument is that users need to entitle the social network with usage right to enable sharing with other users. And, truth must be said, with the current state of the law-technology relationship that point is valid.

I will not discuss if I buy or don't Facebook's possition of "you need to trust us", since it is irrelevant for this post.

Am I the only one that thinks that the fact that a user needs to recede his content rights in favor of facebook so that that same user is enabled to share stuff with his/her friends is inappropriate?

The whole thing reminded me of Lawrence Lessig's introduction to his book "Free Culture". In it Lawrence retells the story of the early days of flight. Before airplanes existed the legislation granted land-owners right of the airspace above their piece of land.

This was bound to be a major source of trouble as flight became more of a commonplace. Mr. Lessig describes what happened when things went to congress in a wonderful fashion:

But Justice Douglas had no patience for ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the Court,

[The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.

"Common sense revolts at the idea."

This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It was Douglas's style not to dither. Other justices would have blathered on for pages to reach the conclusion that Douglas holds in a single line: "Common sense revolts at the idea." But whether it takes pages or a few words, it is the special genius of a common law system, as ours is, that the law adjusts to the technologies of the time. And as it adjusts, it changes. Ideas that were as solid as rock in one age crumble in another.

Or at least, this is how things happen when there's no one powerful on the other side of the change. The Causbys were just farmers.

Sounds awfully familiar, right?

The law around Copyright is outdated and obstrusive. It does not apply to the current state of affairs. At the time most of the Copyright legislation was put in place infromation and content could not flow (and be transformed) the way they do so nowadays.

To over-simplify here's the scenario: technology moves much faster than legislation. There are two main reasons for this: 1. the way the legislative process works and 2. pressure groups with interest in keeping things as they are until they can find a way to profit under the new scenario.

This needs to change. We can no longer afford remaining in the dark ages in terms of the laws by which we try to do things. Copyright is just one of the areas where outdated laws cause problems. Under the current circumstances the highest risk is that everything might turn into a black market of sorts.

Back to the Facebook problem: under the current law facebook must act as if it were a content publisher. It is not, and there is no legal place for services such as Facebook, YouTube or Flickr.

Things such as Creative Commons help. A lot. But they fall short, and are initiatives that are -not at all coincidentally- started by users and consumers, not by law makers. Things such as this yield the innevitable question: if law makers fail to do what they are supposed to do, wont people start to question their validity? The result posts a serious threat to the order of things.

One more thing catches my attention in a powerfu way: How Social Media Marketers and luminaries as a collective fail to address such a central issue.

Let me be clear here: Social Media is all about content. What happens to that content (and the way it is distributed) should be on the top on the priority list for anyone that makes a living out of social media.

I guess I can understand people trying to keep away from such a hairy issue. Yet the time has come to become responsible and start acting up.