Conflicting Court Cases Regarding the Nature of Social Networks

I was catching up on news this morning and 2 unrelated stories jumped out at me, the first being a case brought by ad company Sanbreel against Facebook. The issue at hand was whether or not Facebook amounted to a public utility and as such an essential service, and the judge who reviewed the case disagreed:

There is no fundamental right to use Facebook; users may only obtain a Facebook account upon agreement that they will comply with Facebook’s terms, which is unquestionably permissible under the antitrust laws. It follows, therefore, that Facebook is within its rights to require that its users disable certain products before using its website.

Earlier this week I recalled reading about PeopleBrowser securing a temporary injunction against Twitter to ensure full and complete access to the Twitter firehose.

“We relied on Twitter’s promise of openness when we invested millions of dollars and thousands of hours of development time,” PeopleBrowsr CEO Jodee Rich said in a blog post. “Long term supply is essential as this industry matures. We made this application to ensure full unrestricted access to the Firehose for our Enterprise and Government clients.”

While each case is different in terms of substance, one involves a company’s terms of service while the other is predominantly focused on contract law, the underlying issue related to the whether or not social networks are public utilities is an interesting one to consider. Furthermore, compelling companies to provide access to data would not be unprecedented, cell phone companies are required by law to allow you to take your phone number with you and credit scoring agencies are required to provide limited access to their service at no charge to the consumer.

Existing copyright law provides provisions for copyright holders, whether individuals or businesses, to compel social network to remove work that may infringe on copyright, independent of judicial review. This may seem specific to copyright holders but when you consider that every image uploaded by a Facebook user is subject to copyright law the issue becomes interesting insofar as images which are reposted and shared.

The PeopleBrowser case is the more interesting one to watch, because the injunction will be reviewed in January as opposed to the Sanbreel case which was summarily dismissed. What PeopleBrowser is arguing is that companies have relied on Twitter’s implicit promise that a firehose would always be accessible in order to build their business, much like many other businesses have done and when Twitter changed course they did substantial harm to an ecosystem they actively fostered. We may be on the verge of a new chapter in contract law where services like Twitter are constrained in their ability to arbitrarily change developer terms of service, I doubt this will happen and would regret it if it were to pass.

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