Once More With Feeling: There Is No Legal Distinction Between A 'Platform' And A 'Publisher'
from the stop-pushing-this-nonsense dept
Alexis Madrigal, over at the Atlantic has a mostly interesting piece recounting the history of how the big internet companies started calling themselves platforms. The history is actually pretty fascinating:
There was a time when there were no ?platforms? as we now know them. That time was, oh, about 2007. For decades, computing (video games included) had had this term ?platform.? As the 2000s began, Tim O?Reilly and John Battelle proposed ?the web as a platform,? primarily focusing on the ability of different services to connect to one another.
The venture capitalist Marc Andreessen, then the CEO of the also-ran social network Ning, blasted anyone who wanted to extend the definition. ?A ?platform? is a system that can be programmed and therefore customized by outside developers,? he wrote. ?The key term in the definition of platform is ?programmed.? If you can program it, then it?s a platform. If you can?t, then it?s not.? My colleague Ian Bogost, who co-created an MIT book series called Platform Studies, agreed, as did most people in the technical community. Platforms were about being able to run code in someone else?s system.
This was Facebook?s original definition of its product, Facebook Platform, which allowed outside developers to build widgets and games, and extend the core service. In the years before 2016, nearly all of Mark Zuckerberg?s public references to Facebook as a platform were technical, about connecting with developers.
Amusingly, this actually reminded me of articles I had written over a decade ago, talking up why Google and Facebook needed to become a new kind of internet platform — which I meant in the same manner as Madrigal describes above and which most people talking about “platforms” meant in the mid-aughts. It meant a system on which others could develop new applications and services. I have to admit that I don’t know quite how and when the world switched to calling general internet services “platforms” instead, and I’m just as guilty of doing so as others.
I have two quick thoughts on why this may have happened before I get back to Madrigal’s piece. First, many of the discussions around these big internet companies didn’t really have a good descriptive term. When talking about the law, things like Section 230 of the Communications Decency Act refer to them as “interactive computer services” which is awkward. And the DMCA refers to them as “service providers,” which is quite confusing, because “internet service provider” has an existing (and somewhat different) meaning, as the company who provides you internet access. Ideally, those company should be called “internet access providers” (IAPs) rather than ISPs, but what’s done is done. And, then of course, there’s the equally awkward term “intermediary,” which just confuses the hell out of most non-lawyers (and some lawyers). So “platform” came out in the wash as the most useful, least awkward option.
And if Madrigal’s piece had just stuck with that interesting historical shift, and maybe dug into things like I did in the previous paragraph, that might be really compelling. Unfortunately, Madrigal goes a step or two further — and one that goes right up to the line (though it doesn’t totally cross it) of suggesting that there’s some legal significance to calling oneself a platform. This is something we’ve seen too many reporters do of late, spreading a false impression that internet “platforms” somehow get magic protections that internet “publishers” don’t get.
As we’ve explained there is literally no distinction here. Usually people are making this argument with regards to CDA 230’s protections, but as we’ve discussed in great detail that law makes no distinction between a “platform” and a “publisher.” Instead, it applies to all “interactive computer services” including any publisher, so long as they host 3rd party content. Madrigal’s piece doesn’t call out CDA 230 the way others have, but, unfortunately, his piece absolutely can be read in a misleading way to suggest that there is some magical legal distinction here that matters. Specifically this part:
This new rhetorical device wasn?t just for press releases, but also for ginning up business and creating a legal architecture.
Uh, what “legal architecture”? Again, CDA 230, the key law in this area, makes no special distinction for “platforms.” There was no need for a “rhetorical device” to consider yourself protected (and there still isn’t). Nothing in calling oneself a platform set up any legal architecture, no matter how many ignorant people on Twitter claim it is so. Unfortunately, someone who has already heard that false claim is likely to read Madrigal’s piece as a confirmation of that incorrect bit of info.
So, let’s be clear, once again and state that there is no special legal distinction for “platforms,” and it makes no difference in the world if an internet company refers to itself as a platform, or a publisher (or, for that matter, an instigator, an enabler, a middleman, a gatekeeper, a forum, or anything). All that matters is do they meet the legal definition of an interactive computer service (which, if they’re online, the answer is generally “yes”), and (to be protected under CDA 230) whether there’s a legal question about whether or not they’re to be held liable for third party content.
Some people may want the law changed. And they may think that “internet platforms” should require some specific rules and regulations — including silly, unenforceable ideas like “being neutral,” — but that’s got nothing to do with the law today, and any suggestion that it does is simply incorrect.