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Scoble/Facebook Incident: It's Not About Data Ownership

January 8, 2008 by

Last week Facebook canceled, and then reinstated, Robert Scoble’s account because he was using an automated script to export information about his Facebook friends to another service. The incident triggered a vigorous debate about who was in the right. Should Scoble be allowed to export this data from Facebook in the way he did? Should Facebook be allowed to control how the data is presented and used? What about the interests of Scoble’s friends?

An interesting meme kept popping up in this debate: the idea that somebody owns the data. Kara Swisher says the data belong to Scoble:

Thus, [Facebook] has zero interest in allowing people to escape easily if they want to, even though THE INFORMATION ON FACEBOOK IS THEIRS AND NOT FACEBOOK’S.

Sorry for the caps, but I wanted to be as clear as I could: All that information on Facebook is Robert Scoble’s. So, he should–even if he agreed to give away his rights to move it to use the service in the first place (he had no other choice if he wanted to join)–be allowed to move it wherever he wants.

Nick Carr disagrees, saying the data belong to Scoble’s friends:

Now, if you happen to be one of those “friends,” would you think of your name, email address, and birthday as being “Scoble’s data” or as being “my data.” If you’re smart, you’ll think of it as being “my data,” and you’ll be very nervous about the ability of someone to easily suck it out of Facebook’s database and move it into another database without your knowledge or permission. After all, if someone has your name, email address, and birthday, they pretty much have your identity – not just your online identity, but your real-world identity.

Scott Karp asks whether “Facebook actually own your data because you agreed to that ownership in the Terms of Service.” And Louis Gray titles his post “The Data Ownership Wars Are Heating Up”.

Where did we get this idea that facts about the world must be owned by somebody? Stop and consider that question for a minute, and you’ll see that ownership is a lousy way to think about this issue. In fact, much of the confusion we see stems from the unexamined assumption that the facts in question are owned.

It’s worth noting, too, that even today’s expansive intellectual property regimes don’t apply to the data at issue here. Facts aren’t copyrightable; there’s no trade secret here; and this information is outside the subject matter of patents and trademarks.

Once we give up the idea that the fact of Robert Scoble’s friendship with (say) Lee Aase, or the fact that that friendship has been memorialized on Facebook, has to be somebody’s exclusive property, we can see things more clearly. Scoble and Aase both have an interest in the facts of their Facebook-friendship and their real friendship (if any). Facebook has an interest in how its computer systems are used, but Scoble and Aase also have an interest in being able to access Facebook’s systems. Even you and I have an interest here, though probably not so strong as the others, in knowing whether Scoble and Aase are Facebook-friends.

How can all of these interests best be balanced in principle? What rights do Scoble, Aase, and Facebook have under existing law? What should public policy says about data access? All of these are difficult questions whose answers we should debate. Declaring these facts to be property doesn’t resolve the debate – all it does is rule out solutions that might turn out to be the best.

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2008 Predictions

January 7, 2008 by

Here are the official Freedom to Tinker predictions for 2008, based on input by Alex Halderman, David Robinson, Dan Wallach, and me.

(1) DRM technology will still fail to prevent widespread infringement. In a related development, pigs will still fail to fly.

(2) Copyright issues will still be gridlocked in Congress.

(3) No patent reform bill will be passed. Baby steps toward a deal between the infotech and biotech industries won’t lead anywhere.

(4) DRM-free sales will become standard in the music business. The movie studios will flirt with the idea of DRM-free sales but won’t take the plunge, yet.

(5) The 2008 elections will not see an e-voting meltdown of Florida 2000 proportions, but a bevy of smaller problems will be reported, further fueling the trend toward reform.

(6) E-voting lawsuits will abound, with voters suing officials, officials suing other officials, and officials suing vendors (or vice versa).

(7) Second Life will jump the shark and the cool kids will start moving elsewhere; but virtual worlds generally will lumber on.

(8) MySpace will begin its long decline, losing customers for the first time.

(9) The trend toward open cellular data networks will continue, but not as quickly as optimists had hoped.

(10) If a Democrat wins the White House, we’ll hear talk about reinvigorated antitrust enforcement in the tech industries. (But of course it will all be talk, as the new administration won’t take office until 2009.)

(11) A Facebook application will cause a big privacy to-do.

(12) There will be calls for legislation to create a sort of Web 2.0 user’s bill of rights, giving users rights to access and extract information held by sites; but no action will be taken.

(13) An epidemic of news stories about teenage webcam exhibitionism will lead to calls for regulation.

(14) Somebody will get Skype or a similar VoIP client running on an Apple iPhone and it will, at least initially, operate over AT&T’s cellular phone network. AT&T and/or Apple will go out of their way to break this, either by filtering the network traffic or by locking down the iPhone.

Feel free to offer your own predictions in the comments.

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2007 Predictions Scorecard

January 2, 2008 by

As usual, we’ll start the new year by reviewing the predictions we made for the previous year. Here now, our 2007 predictions, in italics, with hindsight in ordinary type.

(1) DRM technology will still fail to prevent widespread infringement. In a related development, pigs will still fail to fly.

We predict this every year, and it’s always right. This prediction is so obvious that it’s almost unfair to count it. Verdict: right.

(2) An easy tool for cloning MySpace pages will show up, and young users will educate each other loudly about the evils of plagiarism.

This didn’t happen. Anyway, MySpace seems less relevant now than it did a year ago. Verdict: wrong.

(3) Despite the ascent of Howard Berman (D-Hollywood) to the chair of the House IP subcommittee, copyright issues will remain stalemated in Congress.

As predicted, not much happened in Congress on the copyright front. As usual, some bad bills were proposed, but none came close to passage. Verdict: right.

(4) Like the Republicans before them, the Democrats’ tech policy will disappoint. <ionly a few incumbent companies will be happy.

Very little changed. For the most part, tech policy issues do not break down neatly along party lines. Verdict: right.

(5) Major record companies will sell a significant number of MP3s, promoting them as compatible with everything. Movie studios won’t be ready to follow suit, persisting in their unsuccessful DRM strategy.

Two of the four major record companies now sell MP3s, and a third announced it will soon start. I haven’t seen sales statistics, but given that Amazon’s store sells only MP3s, sales can’t be too low. As predicted, movie studies are still betting on DRM. Verdict: right.

(6) Somebody will figure out the right way to sell and place video ads online, and will get very rich in the process. (We don’t know how they’ll do it. If we did, we wouldn’t be spending our time writing this blog.)

This didn’t happen. Verdict: wrong.

(7) Some mainstream TV shows will be built to facilitate YouTubing, for example by structuring a show as a series of separable nine-minute segments.

I thought this was a clever prediction, but it didn’t happen. The biggest news in commercial TV this year was the writers’ strike. Verdict: wrong.

(8) AACS, the encryption system for next-gen DVDs, will melt down and become as ineffectual as the CSS system used on ordinary DVDs.

AACS was defeated and you can now buy commercial software that circumvents it. Verdict: right.

(9) Congress will pass a national law regarding data leaks. It will be a watered-down version of the California law, and will preempt state laws.

There was talk about doing this but no bill was passed. Verdict: wrong.

(10) A worm infection will spread on game consoles.

To my knowledge this didn’t happen. It’s a good thing, too, because the closed nature of many game consoles would make a successful worm infection particularly challenging to stamp out. Verdict: wrong.

(11) There will be less attention to e-voting as the 2008 election seems far away and the public assumes progress is being made. The Holt e-voting bill will pass, ratifying the now-solid public consensus in favor of paper trails.

Attention to e-voting was down a bit. Despite widespread public unhappiness with paperless voting, the Holt bill did not pass, mostly due to pushback from state and local officials. Rep. Holt is reportedly readying a more limited bill for introduction in January. Verdict: mostly wrong.

(12) Bogus airport security procedures will peak and start to decrease.

Bogus procedures may or may not have peaked, but I didn’t see any decrease. Verdict: unclear.

(13) On cellphones, software products will increasingly compete independent of hardware.

There was a modest growth of third-party software applications for cellphones, including some cross-platform applications. But there was less of this than we predicted. Verdict: mostly wrong.

Our overall score: five right, two mostly wrong, five wrong, one unclear. Next: our predictions for 2008.

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Three Down, One to Go: Warner Music to Sell MP3s

December 31, 2007 by

Warner Music will sell music through Amazon’s online store without DRM (copy protection) technology, according to a New York Times story by Jeff Leeds. This is a big step for Warner, given that earlier this year Warner CEO Edgar Bronfman said that selling MP3s would be “completely without logic or merit.”

The next question is whether Warner will make a deal with Apple to sell MP3s on iTunes too. The NYT article says Warner plans to do so, but the LA Times implies the opposite. The two other majors that sell MP3s are split on this point, with EMI selling MP3s through multiple stores including iTunes, and Universal Music selling MP3s through other online stores but refusing to do so through iTunes. Is Warner willing to inconvenience its customers in order to undercut Apple?

By the way, the Times article makes a simple but common mistake, in saying that “the industry faces increasing pressure to bolster digital music sales as its traditional business — selling CDs — suffers a sharp decline.” CDs are digital too, and they lack DRM (attempts to add DRM to CDs failed disastrously), but news stories and commentary often ignore these facts. I guess “Warner to adopt another DRM-free digital format” wouldn’t seem quite so newsworthy.

Three of the four majors (all but SonyBMG) now sell MP3s. It’s only a matter of time before the last domino falls, and the industry can move on to the next stage in its evolution.

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Obama's Digital Policy

December 28, 2007 by

The Iowa caucuses, less than a week away, will kick off the briefest and most intense series of presidential primaries in recent history. That makes it a good time to check in on what the candidates are saying about digital technologies. Between now and February 5th (the 23-state tsunami of primaries that may well resolve the major party nominations), we’ll be taking a look.

First up: Barack Obama. A quick glance at the sites of other candidates suggests that Obama is an outlier – none of the other major players has gone into anywhere near the level of detail that he has in their official campaign output. That may mean we’ll be tempted to spend a disproportionate amount of time talking about him – but if so, I guess that’s the benefit he reaps by paying attention. Michael Arrington’s TechCrunch tech primary provides the best summary I’ve found, compiled from other sources, of candidates’ positions on tech issues, and we may find ourselves relying on that over the next few weeks.

For Obama, we have a detailed “Technology and Innovation” white paper. It spans a topical area that Europeans often refer to as ICTs – information and communications technologies. That means basically anything digital, plus the analog ambit of the FCC (media concentration, universal service and so on). Along the way, other areas get passing mention – immigration of high tech workers, trade policy, energy efficiency.

Net neutrality may be the most talked about tech policy issue in Washington – it has generated a huge amount of constituent mail, perhaps as many as 600,000 constituent letters. Obama is clear on this: He says requiring ISPs to provide “accurate and honest information about service plans” that may violate neutrality is “not enough.” He wants a rule to stop network operators from charging “fees to privilege the content or applications of some web sites and Internet applications over others.” I think that full transparency about non-neutral Internet service may indeed be enough, an idea I first got from a comment on this blog, but in any case it’s nice to have a clear statement of view.

Where free speech collides with child protection, Obama faces the structural challenge, common to Democrats, of simultaneously appeasing both the entertainment industry and concerned moms. Predictably, he ends up engaging in a little wishful thinking:

On the Internet, Obama will require that parents have the option of receiving parental controls software that not only blocks objectionable Internet content but also prevents children from revealing personal information through their home computer.

The idealized version of such software, in which unwanted communications are stopped while desirable ones remain unfettered, is typically quite far from what the technology can actually provide. The software faces a design tradeoff between being too broad, in which case desirable use is stopped, and too narrow, in which case undesirable online activity is permitted. That might be why Internet filtering software, despite being available commercially, isn’t already ubiquitous. Given that parents can already buy it, Obama’s aim to “require that parents have the option of receiving” such software sounds like a proposal for the software to be subsidized or publicly funded; I doubt that would make it better.

On privacy, the Obama platform again reflects a structural problem. Voters seem eager for a President who will have greater concern for statutory law than the current incumbent does. But some of the secret and possibly illegal reductions of privacy that have gone on at the NSA and elsewhere may actually (in the judgment of those privy to the relevant secrets) be indispensable. So Obama, like many others, favors “updating surveillance laws.” He’ll follow the law, in other words, but first he wants it modified so that it can be followed without unduly tying his hands. That’s very likely the most reasonable kind of view a presidential candidate could have, but it doesn’t tell us how much privacy citizens will enjoy if he gets his way. The real question, unanswered in this platform, is exactly which updates Obama would favor. He himself is probably reserving judgment until, briefed by the intelligence community, he can competently decide what updates are needed.

My favorite part of the document, by far, is the section on government transparency. (I’d be remiss were I not to shamelessly plug the panel on exactly this topic at CITP’s upcoming January workshop.) The web is enabling amazing new levels, and even new kinds, of sunlight to accompany the exercise of public power. If you haven’t experienced MAPlight, which pairs campaign contribution data with legislators’ votes, then you should spend the next five minutes watching this video. Josh Tauberer, who launched Govtrack.us, has pointed out that one major impediment to making these tools even better is the reluctance of government bodies to adopt convenient formats for the data they publish. A plain text page (typical fare on existing government sites like THOMAS) meets the letter of the law, but an open format with rich metadata would see the same information put to more and better use.

Obama’s stated position is to make data available “online in universally accessible formats,” a clear nod in this direction. He also calls for live video feeds of government proceedings. One more radical proposal, camoflaged among these others, is

…pilot programs to open up government decision-making and involve the public in the work of agencies, not simply by soliciting opinions, but by tapping into the vast and distributed expertise of the American citizenry to help government make more informed decisions.

I’m not sure what that means, but it sounds exciting. If I wanted to start using wikis to make serious public policy decisions – and needed to make the idea sound simple and easy – that’s roughly how I might put it.

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