from the good-luck-with-that dept
As everyone’s trying to read the tea leaves of what an Elon Musk-owned Twitter will actually look like, it’s been reported that in his presentation to Wall St. banks to get the financing he needs to complete the deal, he suggested the deal would be profitable because of some of his new business model ideas. Now, obviously, these are entirely speculative, and my guess is that he hasn’t thought through any of this that deeply (just like he hasn’t thought through content moderation’s challenges, even though he’s sure he can fix it). But, at least some of the banks are buying into the deal based on Musk promising a stronger Twitter business, so we need to pay attention to his ideas. Like this one, that, um, would be effectively impossible under the 1st Amendment.
Musk told the banks he also plans to develop features to grow business revenue, including new ways to make money out of tweets that contain important information or go viral, the sources said.
Ideas he brought up included charging a fee when a third-party website wants to quote or embed a tweet from verified individuals or organizations.
So, like, I don’t want to throw any cold water on the business model ideas of the guy people keep telling me is the most brilliant innovative business mind of our generation, but… it… um… seems at least a little ironic that he’s spent the past month screaming about “free speech” and enabling whatever the law allows… and now he wants to charge companies for quoting a tweet.
Yeah, so, thanks to the 1st Amendment (that he claims to support so much) he’s unlikely to be able to do that successfully. Quoting a tweet (we’ll deal with embedding shortly) in almost every damn case is going to be fair use under copyright law. And, a key reason we have fair use in copyright law… is that the 1st Amendment requires it, or else copyright law would stifle the very free speech that Musk claims to love so much.
In Eldred v. Ashcroft, the important (if wrongly decided) case on the Constitutionality of copyright term extension, Justice Ruth Bader Ginsburg repeatedly talked about how fair use was a “safeguard” in copyright law to make sure that copyright law could exist under the 1st Amendment, even as it could be used to suppress speech. The crux of the argument is that, because there’s fair use that allows people to do things like quote a 240 character outburst, then there’s no serious concern about copyright silencing speech. This point is often raised in the context of calling fair use a necessary safety valve on copyright to make it compatible with the 1st Amendment.
Given that Musk has claimed (incorrectly, but really, whatever) that free speech laws represent “the will of the people,” and his apparent big business model innovation is to demand that media organizations pay to quote tweets, which violates our fair use rights, which are necessary under the 1st Amendment… well, it appears that his biggest business model idea so far is to try to ignore the 1st Amendment rights of people wishing to quote tweets.
Good luck with that.
Also, under the current terms of service on Twitter, users hold any copyright interest in their own tweets. Twitter holds a license for it, but that wouldn’t allow Twitter as an entity to file copyright claims against any media organization that was quoting tweets in the first place. The only way it could do that is if it changed the terms entirely and required all its users to actually assign their copyrights to Twitter and, well, good luck with that as well.
Now, of course, the report claimed that the fee could be charged if someone “wants to quote or embed a tweet from verified individuals,” and the company certainly could set up some convoluted system to try to make people pay to embed, but that would (a) be fucking annoying for most everyone else and (b) would just lead to everyone screenshotting, instead of embedding, which is a lot less useful in the long run for Twitter, since it would drive fewer people to interact with Twitter. And, again, fair use and (I feel I must remind you) the 1st Amendment would protect all that screenshotting and quoting. Free speech, ftw!
And that’s not even getting into the idea that Twitter might now be effectively selling its popular tweets to websites. I mean, if this plan were to go forward (and somehow got over all the other hurdles), I’d imagine the company would literally need to cut its users in on the deal and set up some sort of “every time the NY Times embeds your tweet, they pay us $5 and we revert $3 of them to you” or some sort of nonsense like that. And, sure, maybe it’ll excite some Twitter users that they could get paid for their tweets (again, assuming any third party website out there ignores its fair use/1st Amendment rights to simply quote or screenshot and chooses to pay instead).
But, this would also likely create a whole world of complications. First, Twitter would need to set up an entirely new kind of operation to manage all of this. Musk also promised in these documents that he’s planning on reducing headcount at Twitter, but he’d need to staff up at least on managing the payments and payouts to tweeters. But, again, this is Elon Musk, so I’m guessing the system will work on the blockchain in Dogecoin and payments will flow automagically. And sure, maybe you could see how that could actually kinda work, if you’re into that sort of thing?
But, now, we get into the next issue: when you add money (even cute dog-meme based money) to a platform where people normally did shit for free, the incentives change. Oh, boy do they ever change. Suddenly you’re going to get scammers galore, looking to abuse the system, and get filthy stinkin’ Doge rich. I guess maybe this needs to be expressed in meme form?
And Elon should understand this better than anyone, given how frequently crypto scammers follow him around and try to scam his fans. Introducing actual money, even of the meme variety, into the mix is going to lead to a lot of scam behavior. And it would probably be helpful if the company had a… what’s it called… oh yeah, trust & safety staff to help think these issues through.
I’m never going to knock anyone for experimenting with creative business model ideas. And I’m all for Twitter trying out non-advertising based business models, as Elon has suggested is part of his focus. That actually seems like a good idea. But, it’s kinda weird when this whole deal is premised on the idea of bringing more “free speech” to the site… and his first business model suggestion when trying to convince banks to back him is to ignore the free speech rights of others and try to force them to pay up.
Filed Under: 1st amendment, business model, elon musk, fair use, free speech, payments, quotes, safeguard, safety valve, security