LiveJournal which claims to host more than 13 million journals has deleted several hundred accounts after Warriors for Innocence, an activist group that polices the Web for pedophilia sites, identified several journals as problems. The Web is a wonderful place. One can write what one wants, share it, and begin to find others with similar interests. This collective creation might be called The Generative Internet as Jonathan Zittrain puts it. But as Zittrain notes the more that the Internet becomes an open and free-flowing place with more people using it, the more the Internet may be become a place hemmed in because of concerns about security. In the present case, it seems some of the journals may indeed have been promoting pedophilia, but the article reports that many were fan sites and fiction sites. Thus, LiveJournal’s reaction to the activist group’s complaint seems to relate to what I see as the core issue of Zittrain’s piece: how open will the Internet be and should some level of regulation (private or public) address issues such as security and illegal activities?
One way to examine the issue is to ask what rights if any the creator of the content has against LiveJournal. In general, given that more and more of our creation is mediated by other parties, what rights does the creator have in the creation? At the very least, shouldn’t the creator have some ability to exert her intellectual property rights such that immediate destruction of the property by the mediating party is not allowed?
There are many ways to analyze these questions, but one obvious thought is that hey it’s a contract. Don’t like the terms? Go elsewhere. Perhaps that is the simplest solution. Indeed the article notes that some of the protestors have offered several “less-censorial alternatives” to LiveJournal. Still the terms of service approach should give pause. The material at issue is core intellectual property. And although many may question the extent of the control one should have under a given subset of the IP system, LiveJournal’s ability to destroy the material apparently without notice seems wild.
To be sure, the LiveJournal TOS goes to great lengths to inform the user that LiveJournal has the right terminate the service at any time and without notice. The TOS also is clear that the creator owns all the content and that LiveJournal “is not responsible for the monitoring or filtering of any journal Content.” As far as objectionable content “LiveJournal might call upon you to retract, modify, or protect (by means of private and friends only settings) the Content in question within a reasonable amount of time, as determined by the LiveJournal staff” but if one does not comply “LiveJournal, however, is under no obligation to restrict or monitor journal Content in any way.”
As for intellectual property, “LiveJournal claims no ownership or control over any Content posted by its users. The author retains all patent, trademark, and copyright to all Content posted within available fields, and is responsible for protecting those rights, but is not entitled to the help of the LiveJournal staff in protecting such Content.” Yet in the next numbered paragraph “LiveJournal also reserves the right, without limitation, to resell any portion of a user’s LiveJournal back to that individual.” One other section, Member Conduct, provides wonderfully broad language about one agrees not to do:
Right. That’s what happens at online journals. Everyone gets along and loves each other.
So what can one make of the TOS? LiveJournal seems to cling to the idea that it does not monitor content (most likely to receive the benefit of safe harbors for the blind online provider) but also wants to reserve the right to do as it pleases and terminate an accountant at will. Yet, as Professor Eric Goldman notes in the article “‘If the content is otherwise legal, then LiveJournal has no obligation to police its site or remove any legal content it finds’.” As for the claim that LiveJournal can sell the material back to the user — What’s the Frequency Kenneth? It is truly surreal that after all the language about LiveJournal disclaiming ownership and control, it then claims “LiveJournal also reserves the right, without limitation, to resell any portion of a user’s LiveJournal back to that individual.”
The oddity here is that the TOS acknowledges the ownership of the creators, yet tramples them under the guise of contract. These terms are not like the warranty disclaimers regarding the service being on at all times and that one’s data will never be lost through error or outage. Rather, these terms allow the host to avoid liability for content by disclaiming control or ownership while still being able to destroy property on its whim.
Last I wonder how many users back up their journals constantly? Techies may say one should do so, but that does not mean it happens. Yes I suppose caveat emptor etc. but what a way to find that out. In closing, “You may be right. I may be crazy” in wanting something more to prevent software and host companies from simply destroying or locking out users from their creative property simply because they wish to “but it just may be a lunatic you’re looking for.”