Facebook Fights Search Engines Over Copyright

DarkKnightPirateBayThe problem with walled gardens such as Facebook, is that you can be searched whenever you pass through their blue gates. In the course of being searched, undesired data can be refused – data like links to ‘abusive’ sites that facilitate copyright infringement. As of today, Facebook has declared war on the Pirates Bay, maintaining that because links to the site often infringe on someone’s copyright then linking to it violates the terms of service that Facebook users agree to. Given that the Pirates Bay is just a particularly specialized search engine, it would seem that Facebook is now going to start applying (American?) ethical and moral judgements on what people use to search for data. Sharing data is great, but only so long as it’s the ‘right kind’ of data.

What constitutes ‘infringing’ use when talking about a search engine? Google, as an example, lets individuals quickly and easily find torrent files that can subsequently be used to download/upload infringing material. The specific case being made against the Pirate Bay is that:

“Facebook respects copyrights and our Terms of Service prohibits placement of ‘Share on Facebook’ links on sites that contain “any content that is infringing. Given the controversy surrounding The Pirate Bay and the pending lawsuit against them, we’ve reached out to The Pirate Bay and asked them to remove the ‘Share on Facebook’ links from their site. The Pirate Bay has not responded and so we have blocked their torrents from being shared on Facebook.” (Source)

On this basis, it seems as though being controversial and having a lawsuit pending (in a foreign court beyond American jurisdiction) is enough to get you blocked by Facebook. It is critical to avoid any corporate legal liability, and so Facebook is likely ‘just’ trying to avoid a visit from the copyright cartel. The issue is that Facebook’s decision to avoid corporate liability continues to perpetuate the attitude that it’s better to be safe than sorry – convict the innocent man, if it means that you catch ninety-nine clearly guilty ones. Facebook is a corporation, and while I can find fault with what they do, I do understand their motivations. What is worrying is that this continues to educate through normalization – American copyright regimes are ‘right’ and are ‘taught’ to every single Facebook user, regardless of their nationality.

Why not, rather than broadly block a particular search engine, only prevent members of particular regions from accessing it through Facebook? The amount of data that Facebook is sitting on means that they can (should be able to!) target their user policies with reasonable degrees of accuracy – why not enforce an American copyright regime on Americans and leave the rest of the world out of things? Social networking sites could actually use their granular understanding of individuals for good – smart, rather than dumb, policies could be applied. In this way, local laws (should they clearly apply, and I’m not entirely certain where American laws actually sit on the Pirates Bay in particular) could be enforced without imposing said laws on individuals who are not subject to American copyright laws.

It seems to me that for sites such as Facebook to continue operating as central data hubs they need to recognize their constituents’ distinctive regional regulatory environments. Facebook could potentially become the new public forum (if it hasn’t already) but to do so will require a more nuanced approach to governance. Governance demands sensitivity to difference, and in the absence of such sensitivity there is a danger that individuals will find another garden to go play in.

Christopher Parsons

I’m a Postdoctoral Fellow at the Citizen Lab in the Munk School of Global Affairs at the University of Toronto and a Principal at Block G Privacy and Security Consulting. My research interests focus on how privacy (particularly informational privacy, expressive privacy and accessibility privacy) is affected by digitally mediated surveillance and the normative implications that such surveillance has in (and on) contemporary Western political systems. I’m currently attending to a particular set of technologies that facilitate digitally mediated surveillance, including Deep Packet Inspection (DPI), behavioral advertising, and mobile device security. I try to think through how these technologies influence citizens in their decisions to openly express themselves or to engage in self-censoring behavior on a regular basis.