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Friday, June 21, 2024

Could TikTok Charge Users to View Your Videos? The Law Says Yes

“At LinkedIn, we’re committed to respecting what’s yours,” says the narrator of a video titled “Who owns your content? You do.” They continue: “So we’ll always ask your permission before using your content in the ads, publications, or websites of other companies.”

This should go without saying. Our content should not be used in third-party ads without our knowledge or consent. Social media sites should not use content we post for business reasons we didn’t intend.

Yet from a legal perspective, social media sites do have broad rights to use any information you provide. “You own your Content,” promises the Twitter Terms of Service, followed by a long paragraph granting Twitter the rights to use, adapt, share, and distribute your content worldwide. TikTok, likewise, claims “an unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide license” to your content. Instagram claims not only a broad license to your content, but also permission to show your username, photo, likes, and relationships in connection with third-party ads.

Social media sites like YouTube and TikTok could also, without violating any laws or their own terms of service, charge users to access your video. Or screen your video at their exclusive film festival. Or publish a book containing your status updates. Or set up an art gallery to display your photos. Imagine Twitter University, where users pay to access curated content from (uncompensated) experts. It could offer courses in art history or screenwriting or user interface design simply by collecting existing commentary, links, videos, and photos without user permission or compensation. You might not even know your content was included. And it would all be perfectly legal.

Social media companies can’t afford to alienate creators and business partners, so YouTube probably won’t produce its own film festival with user-generated content anytime soon. And Snapchat probably won’t make and sell music tracks featuring your voice. Even though they could.

The main force holding social media companies in check is market pressure—and markets change. When the risk-benefit calculation changes, and they can make money in new ways without losing too many users or sponsors, social media sites won’t need your permission. They already have it.

The law generally disfavors “contracts of adhesion,” in which the more powerful party sets the terms and the weaker party is stuck with them. But contracts of adhesion are allowed in business-to-consumer transactions because businesses can’t be expected to negotiate with every customer. Customers have two sources of leverage: their market power (they can walk away if they don’t like the deal) and consumer protection laws that prohibit deceptive or unfair business practices.

Social media companies, especially long-established ones with huge user bases like Facebook, are hard to walk away from. Users who have invested years into building networks and troves of content have too much to lose: memorials of life milestones, personal and professional contacts, archives of creative work with reactions from fans. Facebook users have repeatedly threatened to boycott or #DeleteFacebook after the latest controversy, but the site’s user numbers continue to rise year after year.

With limited market power, social media users are left to rely on consumer protections against deceptive or unfair practices. These are intentionally vague terms, designed to adapt to changing markets across industries. By definition, deceptive and unfair trade practices depend on judges’ assessments of reasonableness and relative benefits. Both are subjective and dependent on context.

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According to the FTC, “deceptive” trade practices are those that are likely to mislead the reasonable consumer. Openly deceptive business practices are easy to avoid, and social media companies do so by unilaterally changing their written policies, writing them broadly enough to encompass anything they might decide to do: We care about your privacy. We respect intellectual property rights. Users have no choice but to agree.

“Unfair” business practices, on the other hand, cause substantial harm to consumers that is “not outweighed by countervailing benefits to consumers or to competition.” This is a more slippery concept, one based on consumer expectations. The reasonable consumer understands the bargain: We use the sites for free and social media companies earn revenue from ad sales. We expect them to experiment with new business models to extract more profit from our activity on their sites. We expect to have little or no recourse against them for their actions.

When we expect these practices, it’s hard to classify them as “unfair”—they seem like part of the deal. When Gmail launched in 2004, privacy advocates objected to automated scanning of email; now we accept it as normal. Every time YouTube changes its monetization rules, content creators complain about losing money but assume YouTube can do whatever it wants. The bar for fairness is low.

To correct this imbalance of power, social media users need baseline consumer protections. We shouldn’t have to click “I Agree” and hope for the best. (And let’s face it, we’re not reading the terms. Even I, a lawyer, find it pointless to spend my time deciphering a contract that I have no choice but to accept.) At minimum, we need the following protections for our content.

1. Our content will be used only for purposes we reasonably expect.

The concept of “purpose limitation” already exists in data privacy. Strong data privacy laws like California’s Privacy Rights Act (CPRA) limit tech companies to only using personally identifiable information for the purpose it was provided, or a related purpose. For example, the CPRA would prohibit a dating app company from sending food delivery offers to a California account holder’s email address.

Purpose limitation can apply the same way to user-created content: Sites must obtain user consent before using content in new or unanticipated ways. This would prevent the Twitter University scenario where sites monetize our content without our knowledge or consent.

2. Our content will not be used in ways that imply any third-party relationship or endorsement.

In 2011, Facebook rolled out Sponsored Stories, in which users’ faces and names appeared in apparent endorsements of products and businesses. The result was a $20 million settlement in which Facebook pulled the feature but admitted no wrongdoing.

Facebook and Instagram have terms of service stating that by using the site, we give them permission to show our name, profile picture, likes, and follows in connection with ads and sponsored content. You can still see when your friend liked or followed a brand.

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We should explicitly consent to being used for ads, not just opt out by navigating through complicated privacy settings.

3. Social media sites will not unilaterally change monetization program terms without notice, and must pay agreed-upon minimums to content creators during the notice period.

YouTube, TikTok, and Twitch have content creator programs aimed at retaining influencers by letting them monetize their content. Sounds fair—the sites get premium content, the creators get compensated. But like the terms of service for these sites, the monetization program terms can change at the sole discretion of the site. TikTok’s Creator Fund, for instance, has been criticized for allegedly decreasing video views to avoid paying creators and for using a fixed pool of money that doesn’t expand as creators join the program.

4. We can delete our content at any time. After deletion, social media sites no longer have permission to use or store the content.

TikTok claims a “perpetual” and “irrevocable” license in our content. If enforceable, this means they can continue using the content in any way they want even if we try to delete it. It also means we can never get paid for exclusive rights to our viral video. We can’t grant exclusive rights because TikTok’s license persists even after deletion.

Facebook and Instagram explicitly state that your content license “will end when your content is deleted from our systems.” Facebook, however, goes on to explain that if “others” have used your content, the license continues until the “others” delete it. You might assume this refers to people you intentionally shared with, but it’s written broadly enough that it could refer to anybody other than Facebook—for instance, Facebook’s business partners, advertisers, or potentially even other Meta companies like Instagram or WhatsApp.

Our baseline rights should include true deletion. Once deleted, social media sites should no longer have any license to our content.

A few sites have terms that are more protective of consumers. Blogging platform Tumblr, for instance, uses standard language for content license rights but then delineates what users can expect, giving examples of what Tumblr will and will not do. Ravelry, an online community of knitters, gives its users the right to remove their content, “thus revoking any rights the Company has with respect to such Content.” Terms like these don’t just reassure users; they also establish a higher bar for user expectations, in a written document the company has agreed to stand behind.

Baseline consumer rights for social media could be enacted through congressional action or the FTC’s existing rulemaking power. Current FTC Chair Lina Khan has committed to protecting consumers from “deeply asymmetric relationships” with tech companies, so stronger protections are a real possibility. It’s long past time to stop relying on the goodwill of tech companies and to assert our rights as consumers.

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