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.

Filed Under: cda 230, intermediary, neutrality, platform, publishers, section 230
Companies: facebook, google


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Stephen T. Stone (profile), 17 Jun 2019 @ 9:53am

    Some people may want the law changed.

    And I’d bet on those people using the same platforms that would be affected by a change in CDA 230.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jun 2019 @ 10:04am

    It's funny: when I think platforms, the first place I go is political platforms. So when I think of "online platforms" I usually think of the values and messages that providers are distributing.

    This, of course, is totally seperate from development platforms, which are a way for an established computing system to provide a means for third parties to "speak" through the established platform.

    Generally, I replace "platform" with "soapbox" -- it's why I thought SOAP was such a nifty acronym at the time; too bad it turned out to be such a headache for platform management.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jun 2019 @ 10:17am

    "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

    In the early years of online computing, companies such as Compuserve, Prodigy, and AOL provided a wide variety of services in addition to internet access. Although that's not the general practice today, the name "internet service provider" lives on.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 10:29am

      Re:

      And not to mention, early "barebones" PPP dialup providers often gave you some web server space on their infra and a shell account to manage it with.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 10:53am

      Re:

      "Internet service provider" didn't start with AOL, Compuserve, etc. It started with dial-up internet connectivity providers, well before AOL and the others provided any kind of general internet access. Most of the time those services (ISPs) provided you with an email address, dial-up connectivity and nothing more even as they slowly moved to cable connections. "Web space" came much later as a perk to make themselves more competitive.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 11:53am

      Re:

      In the early years of online computing, companies such as Compuserve, Prodigy, and AOL provided a wide variety of services in addition to internet access. Although that's not the general practice today, the name "internet service provider" lives on.

      And I would also add, as a former owner of an ISP back in the dial-up days, we provided many services outside of just internet access. An email address, personal web hosting, shell access (if requested), access to our local usenet server, etc. We also provided plenty of paid services as well, domain hosting for both web and email, MySQL server, etc. So back in those days, the term "Internet Service Provider" seemed very appropriate.

      In today's world, as with my Comcast service, I really don't want anything else from them other than just Internet access. From that standpoint, I wish that was all they did for my monthly fee, provide internet access and I can choose from where I want my email, etc.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jun 2019 @ 1:44am

        Access

        Masnick says in the article that what is done is done, but is it really too late to start calling internet access providers internet access providers? That would make the point that the primary product is access, even if the access provider also provides various other services.

        Net neutrality should also be talked in terms of access to the net. Clarity would be served.

        reply to this | link to this | view in chronology ]

  • icon
    TheLizard (profile), 17 Jun 2019 @ 10:50am

    Liability

    It's true, the law doesn't distinguish between "platforms" and "publishers," it's just become part of the nomenclature, a way of distinguishing articles by the NYT or Gizmodo that they can be held liable for, and content posted on YouTube or Twitter by third parties, for which YouTube and Twitter CANNOT be held liable for.

    What's happening, though, is these tech giants are now promoting a narrative. Call it establishment / corporatist, or neo-liberal, or identitarian, or what have you, they're promoting that narrative using not their own content, but by "curating" the vast amount of user content that is handed over to them to post.

    So, for instance, Nick Sandman was doxxed and his school threatened by the curation of Twitter. Why isn't Twitter listed on a lawsuit by Barnes? They enabled the mob riot.

    reply to this | link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 17 Jun 2019 @ 11:53am

      Re: Liability

      Perhaps you could explain what you mean when you say "curating". Because I don't see a dang thing Twitter did that makes it make an ounce of sense to blame them for what the users on their site decided to do.

      How on earth do you get that they "enabled the mob riot"??? Just because they provided a location for people to speak? Because automated algorithms designed to show people what other people are liking right now showed people what they were choosing to want? In what way does that make Twitter responsible for other people's choices?

      reply to this | link to this | view in chronology ]

      • identicon
        christenson, 18 Jun 2019 @ 3:32am

        Re: Re: Liability

        That distinction in the narrative between curation and moderation is a really important one politically.

        Curation means they accept all comers and organize what they post. It can be reasonably automated at scale, and failures don't generally cause major social damage. Think of a museum collection.

        Moderation means they tack on value judgements and decide that some stuff is unacceptable. It cannot be automated at scale; context matters, and failures are much more damaging. Think of a public meeting that turns into a fistfight.

        The implication is that curators aren't responsible for the uses of the data, whereas moderators share some responsibility and are expected to exert some control.

        The big internet "platforms" (places where people post for all to see and where people go to accomplish particular tasks) really want to curate the data, typically to sell the most eyeballs to the highest bidder.


        Now, as to "enabling the mob riot", yes, twitter's algorithms were involved, and we should be discussing just how these things go down and twitter's reasonable response, just as Techdirt periodically discusses various awesome responses to intellectual property situations, like the musician this week that said "well, if you want my first drafts, don't get the stolen copy, here's a copy in a nice box for sale!"

        Some bad things are happening since our shiny new internet with limited boundaries has been invaded by a few hoodlums here and dominated by a few huge elephant platforms there, and we would do well to think through improved responses and make explicit our reasoning and intuition.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 18 Jun 2019 @ 4:05am

          Re: Re: Re: Liability

          "Curation means they accept all comers and organize what they post'

          No, it really doesn't. MUBI is a curated online video service, YouTube is not. It's the opposite of what you just said.

          "Think of a museum collection"

          You think that museum curators are not highly picky about the works they curate and just accept anything?

          "Think of a public meeting that turns into a fistfight."

          That means the moderation failed, not that moderation had anything to do with the fight.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jun 2019 @ 6:57am

          Re: Re: Re: Liability

          As PaulT said, your definition of curation is wrong. It doesn't accept all comers, it is selective in who or what it accepts.

          The implication is that curators aren't responsible for the uses of the data, whereas moderators share some responsibility and are expected to exert some control.

          Actually, this is also backwards. Curators have more responsibility because they determine what gets allowed in the first place. Moderators come along after the fact. Kind of like the police, they are the real world moderators, yet we don't hold them responsible for the actions committed by citizens living in their neighborhood.

          Now, as to "enabling the mob riot", yes, twitter's algorithms were involved

          Involved, but not responsible. Like how a car was involved in a hit-and-run accident but the manufacturer of the car is not held responsible for how the driver used the car.

          Some bad things are happening since our shiny new internet with limited boundaries has been invaded by a few hoodlums here and dominated by a few huge elephant platforms there

          And they will continue to happen. The internet is a lot bigger than either of those.

          we would do well to think through improved responses and make explicit our reasoning and intuition.

          I agree. Blaming people who didn't do the bad things isn't an improved response. It's the opposite.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 11:57am

      Re: Liability

      Nick Sandman was doxxed and his school threatened by the curation of Twitter. Why isn't Twitter listed on a lawsuit by Barnes? They enabled the mob riot.

      And why isn't Shawn Brooks suing Facebook in addition to the Daily Beast for doxxing him? According that Daily Beast article that fingered him as the source of the Drunk Pelosi video, instead of offering any sort of "we don't comment on private user information" response, Facebook checked their logs and then told the Daily Beast that Brooks was the uploader of that famous slowed-down video. (as if anyone really expects Facebook to give a rat's ass about privacy)

      http://www.thedailybeast.com/we-found-shawn-brooks-the-guy-behind-the-viral-drunk-pelosi-vi deo

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 12:43pm

      Re: Liability

      "What's happening, though, is these tech giants are now promoting a narrative."

      How is that? By allowing comments?

      I find it interesting that some who laughed about snow flakes needing a safe space are now whining about not having a safe space.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 17 Jun 2019 @ 6:18pm

        Re: Re: Liability

        Political liberal believe all is well with the likes of Facebook.

        Political conservative believe Facebook is all evil and a liberal dog and pony show.

        Truth it is neither; it is a run away rouge intelligence operation. The only major question is for whom?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Jun 2019 @ 7:46pm

          Re: Re: Re: Liability

          "Political liberal believe all is well with the likes of Facebook."

          You've just 100% imagined this.

          reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 17 Jun 2019 @ 7:09pm

        Re: Re: Liability

        I find it interesting that some who laughed about snow flakes needing a safe space are now whining about not having a safe space.

        Since when has any accusation made by the Right not been projection?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 1:18pm

      Re: Liability

      Moderation is not the same as curation and vice versa. What social media platforms do is moderation (kind of like the MC of a town hall meeting shouting for order and having the miscreants booted out) not curation. Curation is a gated community, you can only get in if you meet the requirements. Social media has no requirements and is open to everyone.

      these tech giants are now promoting a narrative

      And that would be what?

      they're promoting that narrative using not their own content, but by "curating" the vast amount of user content that is handed over to them to post

      Please point to this "curation" you think is happening and I'll show you it isn't what you think it is.

      Nick Sandman was doxxed and his school threatened by the curation of Twitter

      No, he was doxxed and his school threatened by a miscreant who broke the law and did bad things. Would have happened with or without Twitter.

      Why isn't Twitter listed on a lawsuit by Barnes?

      Because they had nothing to do with it.

      They enabled the mob riot.

      What about all the mob riots that happened throughout history before the internet even existed? Did Twitter enable those too?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jun 2019 @ 2:24pm

        Re: Re: Liability

        Curation is a gated community, you can only get in if you meet the requirements.

        Wrong, for wikipedia:-

        Data curation is the organization and integration of data collected from various sources. It involves annotation, publication and presentation of the data such that the value of the data is maintained over time, and the data remains available for reuse and preservation.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Jun 2019 @ 3:09pm

          Re: Re: Re: Liability

          That literally has nothing to do with my statement about how data gets in there in the first place and is not at all at odds with my statement.

          In data curation, somebody makes the decision on what should be allowed in the first place (think a museum). Moderation is allowing everything in without discrimination and cutting parts off that get too wild after the fact.

          But if you really want to go with what you posted, social media is none of that. Social media does not organize and integrate data from various sources, people input CONTENT into their platform of choice.

          Social media doesn't annotate anything a user posts, it doesn't publish it in the traditional sense (especially since you can mark all your stuff as private so no one can see it), nor do they present the data in any specific way so that the value of the data is maintained over time. It literally appears exactly as the user posted it.

          And it definitely does not ensure that any data or content remains available for reuse (it can't because it belongs to the user) and preservation (also can't do this because the user can delete it any time they wish).

          Data curation would apply to the Internet Archive archiving and saving copies of everything people posted to social media sites, but not social media sites themselves.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jun 2019 @ 1:10pm

    Maybe someone could say a platform is an online service where users
    can become members or sign in ,and post content, which may be text, images, photos, videos and also comment ,
    its 2 way , users or members can setup their own groups or web pages ,
    which are unique to that user.
    Under section 230 the owner of the platform can moderate it, remove content,
    or even block and remove users .
    Any content posted by a user is the legal responsibility of the user ,
    not the owner of the service.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 1:26pm

      Re:

      The problem with being that specific is it really only applies to a certain subsection of sites and services on the internet. You've left a whole host of other services vulnerable to liability for the actions of their users.

      Honestly, there really is no need or reason to define what a "platform" is or isn't since it isn't a legal term. The First Amendment and Section 230 do an adequate job of making it clear that ANY site or service on the internet is not responsible for the actions of their users and the government can't step in and tell them what speech they can and cannot host.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 17 Jun 2019 @ 1:31pm

    Platform//

    Its convoluted at the best..
    Old days platform was Like the C64, Atari, Apple, Any console...
    Because you had to make things FOR those system and they would not work on others,...

    Even NOW, that word can mean allot of things, but WHICH platform. As event the internet has Many languages and formats of design, that are NOT compatible..BUT are being forced to work together and it CAN cause problems if you used correctly.

    The inter net has allot of Languages, and more are being added. And if you dont know the Specifics....Ask the company Which languages and formats its using..Platform dont tell you anything. and they keep adding STUFF(CRAP) to the net programming. AND the more you add, the more protection we need.

    Your AV program needs to be able to decipher, at least 14(?) different internet languages, just to protect you while you wonder the net. The more complicated it gets, the harder it will be to protect your computer.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Watt T. Snick, 17 Jun 2019 @ 2:59pm

    If "publishers", then liable. You just admitted what I want.

    Yes, Facebook and Google ARE publishers, therefore liable for every bit of content on the "platforms", just as print publishers are liable for every bit on paper.

    Way down, after much needless semantics, you get to that Section 230 is so that "platforms" aren't liable for what persons publish using them as merely medium, hosts, mechanisms.

    But that "platforms" are NOT "publishers" is the essence!

    You have eaten your own dog food, regurgitated it to eat again, then excreted it and enjoyed eating it third time best of all, and without even noticing. That's how far gone you are.

    Because this is utter CRAP. You don't even grasp your own text.

    The definition of "publishers" includes responsible and liable.

    "Platforms", which I find handy term for the mechanical parts, are in NO way or degree empowered to "a priori" censoring. Nor, without "good faith" to remove any content, let alone that which is within common law. Section 230 is to enable The Public to publish EASILY, not empower Corporate Rule.

    No one is much disputing the "moderation" aspects -- which state common law principles. The crux is the "material is constitutionally protected" provision. But no statute can over-rule Constitutional protections -- especially NOT if explicitly says can!

    A clear case of corporate over-reach will come in which the government-conferred absolute control that you wish corporations to have will be ruled Un-Constitutional.

    With you NOW agreeing with me that they're publishers, then the unique immunity of "platforms" is no more. Just as I want. -- So, thanks!

    If settled law as claim, why yet another DULL piece to shore up?

    Section 230's explicit attempt to over-rule the Constitution is the modern tactic of not being sneaky, but BLATANT, a version of The Big Lie. What you claim is "the law" is backed only by lawyering and propaganda from corporate shills.

    Your view of Section 230 does not serve We The People, but empowers corporations. -- No, you can't even claim that it's the way to serve The Public, because in practice you explicitly limit The Public by empowering corporations to TOTAL ARBITRARY CONTROL OF ALL SPEECH.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jun 2019 @ 3:08pm

      Re: How’s that Paul Hansmeier defence going bro?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jun 2019 @ 1:10am

        Re: Re: How’s that Paul Hansmeier defence going bro?

        How's it going? Well, prosecutors asked for 12 years, judge gave him 14.

        blue sucks as a defender for copyright enforcement, who knew?

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 17 Jun 2019 @ 3:49pm

      Facebook and Google ARE publishers, therefore liable for every bit of content on the "platforms"

      CDA 230 says otherwise.

      Section 230 is so that "platforms" aren't liable for what persons publish using them as merely medium, hosts, mechanisms

      Hey, look at you, finally stating an actual fact! Good for you. Keep it up!

      No one is much disputing the "moderation" aspects -- which state common law principles. The crux is the "material is constitutionally protected" provision. But no statute can over-rule Constitutional protections -- especially NOT if explicitly says can!

      No law says an Internet platform/service/what-the-hell-ever must be forced to carry all “constitutionally protected” content. Feel free to prove otherwise — unlike all the other times where I said as much and you ran away from the conversation faster than a famous blue hedgehog. (Perhaps yellow is more your color.)

      A clear case of corporate over-reach will come in which the government-conferred absolute control that you wish corporations to have will be ruled Un-Constitutional.

      Hey, Blue Balls: The DMCA is constitutional.

      With you NOW agreeing with me that they're publishers, then the unique immunity of "platforms" is no more.

      Feel free to test that theory in a court of law. Spoilers: You won’t get far.

      Your view of Section 230 does not serve We The People, but empowers corporations.

      Your view of copyright serves corporations far more than it does the general public, but I don’t see you admitting that truth.

      in practice you explicitly limit The Public by empowering corporations to TOTAL ARBITRARY CONTROL OF ALL SPEECH

      Alex Jones was booted from all the major social interaction networks. He still has InfoWars. How, then, did all the SINs gain total control of his speech if he still has a platform from which he can express himself?

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 18 Jun 2019 @ 3:01am

        Re:

        "Your view of copyright serves corporations far more than it does the general public, but I don’t see you admitting that truth."

        That's why he's always so fun. Not only is he ignorant of the very simply stated facts within the law he opposes, the endgame he is fighting for is the exact opposite of the one he claims to be striving for. As with NN, he claims to be battling against major corporations, but he's actually fighting to ensure they have all the control.

        "He still has InfoWars"

        For the moment. He's not been doing himself too many favours in that regard, in recent hours.

        But, the fact he still had InfoWars does expose what he's really after. He's not demanding free speech, as he's already got it. He's demanding that others have their rights removed so that he gets a bigger audience.

        reply to this | link to this | view in chronology ]

  • icon
    Gerald Robinson (profile), 18 Jun 2019 @ 11:09am

    Platform is becoming a buzzword

    The AR/M16/M10 type of modular rifle/pistol is increasingly revered to as the AR platform. A platform being anything which encourages user modification to some extent. Unfortunately 'platform ' is getting used generacly: aero, geo, astro, structured programming .... Some years 'he's became ubiquitous and an acquaintance had Seats Catalog reject an order to New Mexico with the reason "we don't ship to foreign countries" . Platform is likewise in danger of becoming a noise word!

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.