Peter Wasylyk, on behalf of his client Derrick Rose, has filed suit against Facebook in relation to the Instant Personalization service.
The complaint is here.
This post may be updated.
In recent history, we have seen a plethora of companies arise based on the aggregation and selling of personal information. Spokeo, ChoicePoint, Intellius, ZabaSearch, Acxiom are just a few. Spokeo, the most recent one however, provides the most information for free, and the cheapest price if you do decide to pay. The concern is that since all of these sites use essentially the same underlying information, there is no way for the user to prevent dissemination. This has led to a number of cries for congressional restriction. A good start might be to extend the Fair Credit Reporting Act to other kinds of data collection and sale.
In the meantime, what does this mean for society? Are we going to undergo a privacy based cultural revolution? I do not think this will happen anytime soon. Currently, the information available on the websites is horribly inaccurate. Generally, you only know if the person you’ve found is correct based on name and address, and many people are not searchable. Once you have found the correct person, further information is generally not helpful. Spokeo says my father, the only family member who shows up, as having several interests and lifestyle facts, “has children” and “enjoys entertainment.” Now I wonder who doesn’t enjoy entertainment. The rest, while inaccurate, do reveal the potential for extensive information: the only reason I can think of for them to suspect my Dad enjoys home decorating and home improvement is the time we spent remodeling, which was thoroughly not enjoyed by anyone at all. Does that mean that Spokeo has some way of knowing what we are buying? It is not getting Dad’s interesting from linked facebook pages, though I don’t doubt website will soon be mining that, so where is it coming from? Spokeo hasn’t disclosed its sources, so it will be interesting to find out. Spokeo also claims my Dad is not intersted in Politics, when in actuality he votes in and follows every election. He does not run a home business as advertised. There are also personality descriptions like “self-driven,” which, without knowing the sources, and given the general inaccuracy, seem dubious.
I haven’t found any sites or testimonials claiming these aggregators are particularly useful or accurate. Given that, it seems hard to believe they represent a real disruption. Even if they are somewhat right, what good is that to a stranger, who cannot tell whether a particular fact goes in the wrong category or the right one? It seems to me that if privacy deteriorates for the majority, it will have nothing to do with people invading it, but rather information being freely disclosed, or allowed to be easily accessed. The current generation is growing more accustomed to sharing everything with everyone. This class in general knows more about facebook and internet privacy than a few handfuls of people. Yet how many of us keep facebook? More than that, how many people keep “likeing,” things, and forming public “connections,” which describe ourselves and our tastes? If everyone is going to keep doing this, then one of two things will happen: people will either get used to presenting their “public face,” on the internet, or we will learn not to care so much whether another’s interests (supposed, self disclosed, reported, whatever) disagree with our own. The inaccuracy of current databases will contribute to a distrust and dismissal of information found online. When it does get more accurate, we will be so used to not caring that we won’t start.
There have been a number of criminal investigation based on wrong information, where it is especially dangerous in law enforcement. Governments should not be trusting these sites to do their investigation for them, and rather than pass laws mandating higher accountability the solution is for criminal investigations to be investigatory rather than a matter of buying the information. It is and should be the responsibility of the police to find and apprehend the correct person. If we do pass laws mandating that information databases be more transparent and correct, this will hasten the future in which we are more tolerant. but there is no sign of this happening amongst the current crises.
Lastly, I leave you with an illustrative graphic of the progression in disclosure. How long before other websites share information like facebook does, or are all connected, or these stop being the default settings and become the only one? Will we really give up our social networks?
It’s a longstanding cliche in the world of tech start-ups. “I’d love to chat about my company, but we’re in stealth mode.” The concern is that sharing the idea is more dangerous than not sharing it. In my experience I have found the exact opposite to be true. Stealth mode is stupid for at least three reasons: 1) ideas are overrated, 2) execution is infinitely more important, and 3) freely sharing ideas can aid in their execution. This is an essential lesson for tech start-ups, but its implications reach far beyond Silicon Valley.
Ideas are Overrated
To start with, ideas are painfully overvalued, both anecdotally — by aspiring entrepreneurs, and formally — by our legal system. Right now thousands of people are contemplating the same, next big idea. But what separates these faceless masses from the one that will emerge as the next Google? In a word, execution. Ideas are everywhere, but great implementation is rare. New entrepreneurs, who have not yet gone through the most critical stage of a young company — its execution — are prone to undervaluing its importance.
The US patent system, meanwhile, similarly overvalues ideas. It protects the expression of ideas that are both “novel” and “non-obvious,” but realistically, in the digital age, for how long do new ideas remain “non-obvious”? In the Twitter age ideas spread nearly instantly. And because of our abundant access to information, in general, the process of trends converging to form new ideas is in plain view for almost anyone to see. Furthermore, the ideas that underly the most successful tech companies of the past decade — Google, YouTube, and Facebook — were neither novel nor non-obvious when they made their marks.
The Story of Facebook
Facebook, in particular, provides an excellent case study. The idea of social networking first emerged in the late 90’s. Live Journal started in 1999; Friendster in 2002; and Tribe.net in 2003. Mark Zuckerberg didn’t launch Facebook until the spring of 2004. At that point it would be unthinkable to label social networking as a new idea. But it was. In fact, two separate groups claimed that Zuckerberg had stolen the idea from them. Facebook had to settle one of the cases out of court (due to pressures stemming from contract law and public relations, not any valid IP concerns), but the very occurrence of the lawsuit, that someone could even think that the idea of social networking was somehow novel or non-obvious in 2003, underscores our societal misunderstanding of ideas.
Why did Facebook garner 400 million users, then, even though it wasn’t a new idea? Because of its execution. It was part luck, part skill, but regardless, it was the actualization of Facebook, not the idea of a social network (or even the idea of a college-centric social network), which created so much value. The same goes for every success story. Search was old news by the time Google entered onto the scene in 1997. But they implemented it much, much better than the competition. Hundreds of streaming video sites were sprouting up in 2004. But YouTube executed the idea better than anyone else.
And why were so many people working on these ideas in the first place? Because there were highly visible trends that were converging to create obvious new opportunities: the growth of the internet made search a necessity; increasing broadband penetration made internet video feasible; and in the wake of the success of the blogosphere, social media was emerging as the next major frontier on the web.
“Ideas are Just a Multiplier of Execution”
As the founder of CD Baby, Derek Sivers, put it, “ideas are just a multiplier of execution.” He explains that varying degrees of execution are worth roughly between $1 and $10,000,000, but ideas are only worth between negative 1 and 20. Therefore, a weak idea with flawless execution can be worth $10,000,000, but the best idea in the world with poor execution is worth just $20. These numbers are obviously metaphorical proxies, but the concept is spot-on. And Sivers of all people would know: he took a relatively boring idea (selling independently-produced CD’s on the Internet), and turned it into a $20 million company.
If stealth mode was merely unhelpful it would be one thing, but it is actively harmful to new ventures. The people who appear most threatening in the stealth mode worldview — industry peers, talented coders, angel investors, etc. — are actually the people who could provide the most help. By closing themselves off to these potential resources, stealth mode companies are their own worst enemies.
What about Apple?
One common retort to this critique of stealth mode is, “what about Apple?” This of course refers to the fact that Apple, Inc., the fifth largest company in the US, uses intense secrecy as part of their unquestionably successful product development and marketing efforts. The short answer is: you’re not Apple. They are a thirty-five year-old company with hundreds of retail locations, tens of thousands of employees, and tens of billions of dollars in the bank. Their sophisticated use of secrecy has no bearing whatsoever on a small start-up. [Note: this isn’t to suggest that Apple has a healthy attitude towards intellectual property, because I don’t think they do, but that is for a different blog post.]
Fear of Sharing: Broader Implications
The concept that overprotecting ideas can actively hurt companies is something that applies to all firms, not just start-ups. Media conglomerates, for instance, closely guard their content, because, like rookie entrepreneurs, they think not sharing it is less dangerous than sharing it. But they’re wrong.
This mistake is perhaps best illustrated by the band Ok Go, whose lead singer wrote a scathing op-ed in the NY Times this past weekend, which chronicled his band’s tumultuous experience with a major record label. Ok Go was signed by EMI in 2000. They floundered for years, until in 2005 the band used their own funds to make a low-budget music video — without the aid nor the permission of their label — that went on to become a YouTube sensation. The label, though, viewed the video as illegal, despite the fact that it singlehandedly propelled the band to international stardom, resulted in millions of legally sold records (most of the profits of which went to the label), and even earned the band a Grammy. Recently EMI disabled embedding on this video so that it can no longer be shared across the Internet, even in light of how it being shared in the first place is precisely what proved to be such a boon for the band and the label. Consequently, EMI is preventing the next Ok Go from ever emerging. Consumers lose, bands lose, and EMI loses. Why are they doing it? It’s really unclear.
Conclusion
Whether you’re a lone hacker or a Fortune 500 media company: your ideas don’t really matter. So stop trying to protect them, and start trying to implement them better.
Not actually about fighting bad EULA's, but c'mon, xckd is always a good thing.
After doing this week’s reading, it’s easy to get the feeling that there’s little we can do to fight bad EULAs. And let’s be honest, there isn’t much–at least for the individual user. That said, recently there have been cases where popular services have changed their terms of service because of the public’s distaste for a few egregious terms within them. Remember earlier this year when Facebook changed it’s TOS to say that they kept the rights to your content even if you got rid of your account? People got mad, they complained, and Facebook caved and went back to it’s old TOS. Similarly, there was a situation last summer in which it appeared Google’s Chrome browser’s terms of service gave Google the rights to anything you sent through the browser–again, after people complained, it was changed. While these situations were hardly the same (it seems Google’s TOS problems were the result of a mistake, whereas Facebook’s seemed more deliberate), they share in common the fact that the problem was fixed after enough people complained about it. This of course isn’t an entirely satisfying solution, but it is good to know that if people get angry enough, companies do respond.
The other important step one should take as a consumer is to actually make some attempt to read agreements before clicking through them–even if it’s just a quick skim. While there’s not much you can do if you don’t like the terms (except perhaps give your business to someone else), at least you’ll be aware of them. And sometime’s you’ll be pleasantly surprised (I’m a big fan of Google’s affirmation of my intellectual property rights, something about which I never would have known if I didn’t read the terms). If you want to be extra vigilant, you could even check the EFF’s “TOSBack” site from time to time: it’s a site that tracks changes to various terms of service agreements (there’s even an RSS feed if you’re uber-nerdy). After all, someone’s got to notice harmful changes to these agreements in order for people can get angry about them.
Lastly, I’d be up for creating some sort of EULA hall of shame, much like the EFF’s DMCA takedown hall of shame. While there already seems to be a site that attempts to do this, it’s far from well done or thorough (check it out at http://www.eulahallofshame.com/). Such a site, if done well, would be useful in that it would draw attention to particularly bad abuses of licensing agreements. And, after all, ridiculing sketchy practices by companies is fun. Let me know in the comments if you’re interested.
In honor of Cory Doctorow, I’d like to end this blog post in the same way he has ended several of his about blog posts EULAs (and I can because Boing Boing uses a CC-BY-NC license, I’m giving him credit [Thanks Cory!], and I’m gonna go ahead and say this blog post is CC-BY-NC-SA, since I can’t seem to find a licence for the site as a whole):
READ CAREFULLY. By reading this blog, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (“BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.
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