Although I had heard of Twitter for a while now, I did not really know what it was until prompted to learn more by two recent articles. One is this piece in the Chronicle of Higher Education about potential library uses for the “microblogging” or social messaging service. It recalls the discussions I heard recently about the different level of involvement folks from my institution felt at an academic conference when the audience for various talks was using Twitter during the programs to share comments, examples and the like. Rather than being distracting, as I suspected it would be, the reports were that this added a welcome dimension to the conference experience.
What caught my professional attention, however, was this report of an ongoing controversy between Twitter and some of its customers about the terms of service to which every user agrees when they sign up for the service. The specific argument concerns the degree to which Twitter was obligated to pursue complaints of harassment directed against another user. On that issue, Twitter seems to be caught between a rock and a hard place — if they do not take steps to stop harassment they seem to condone a clear violation of a condition of use that they imposed, but if they do take action they may put in jeopardy the “safe harbor” protection from liability based on user postings that they gain under section 230 of the Communications Decency Act.
As more and more communication on campus happens over these kinds of proprietary sites and networks, and as commercial Internet tools become more common for student and faculty worker, these contracts will increasingly control what we can do. Often they give the owner of the site or tools an exploitable interest in the work created or stored there. Yet very few people even realize that they are binding themselves to detailed and enforceable terms whenever they click “I agree.” It is therefore becoming ever more important that courts find ways to introduce some nuance into their enforcement of these click – through agreements, rather than simply enforcing them blindly as the Virginia court did in Turnitin. At least one proposal for such a nuanced approached, that considers when a contract, especially a non-negotiable online contract, should be preempted by federal copyright law and the policy that law is aimed at enacting, is found in this complex but compelling article on “Copyright Preemption of Contracts” by Christina Bohannan. We can but hope that courts will develop a more sophisticated approach to these contracts, whether they use Bohannan’s proposed approach or some other, as they become more aware that such contracts may undermine both the policy behind copyright law and the traditional rules of contract formation, and they may do so, if left unchecked, based on very little thought or reflection by the party that is imposing the terms.
One thought on “A”twitter” about contracts”
A fascinating post, Kevin. As Duke and other libraries justifiably rush to adopt new technologies so that we can be “where the users are”, I hope that we focus not only on how we use these products; but also on what we and our users are agreeing to when we “click through”.
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