21st Century Hearings: Constitution Center October 23-24 #FTC-2018-0090-D-0024

Submission Number:
Vanessa Pierce Rollins on behalf of Prof. Sean O'Connor
Initiative Name:
21st Century Hearings: Constitution Center October 23-24
( 2 of 3) Big Internet companies, who disrupt as a mission statement and ask forgiveness instead of permission as a business model, push the envelope so that what was (and should be) unreasonable may no longer be for purposes of contract defenses. I believe the FTC can play an important role in addressing the above-noted B2C licensing concerns. At a minimum, to the extent the licenses are adhesion contracts, they invite heightened scrutiny, especially with the flood of new agreements and modifications that consumers face every day in digital life. Heightened scrutiny may also help identify and stall the downward creep of reasonable expectations. I also encourage the FTC to use its longstanding, strong guidance on intellectual property licensing and markets to develop B2C license guidelines. In any such guidance, I recommend the FTC consider including the following requirements: Consumers should be made aware, explicitly, of what can be done with their own content and information and who has rights and access to it; Companies should be obligated to do all they reasonably can to remove sensitive consumer content; Consumers should have enforceable rights to remove their own content, similar to the right to be forgotten movement in the EU; Standards should be provided for reasonable and enforceable private and public zones in social media; Perpetual licenses with vague assignment/sublicensing provisions should be discouraged; Rolling contracts should provide sufficient notice prior to agreement modification. III. Business to Business Licenses Turning to copyright-related business-to-business (B2B) licenses, Big Internet is displacing better understood and vetted open licensing regimes like Creative Commons in favor of a private, poorly understood licensing system. The market power of and interconnected relationships among Big Internet firms cause the most concern here. Certain behind the scenes actions may negatively affect consumers and fair competition. For example, consumers information and content licensed to Big Internet through B2C licenses are somehow being linked to B2B deals for advertising, search engine optimization, data mining, and the like. Most people who engage in any on-line activity have experienced this unsettling realityafter searching for a product one day, having little ads for that same product appear on every website for the next week. In addition, increasingly Big Internet login options (e.g. for Facebook and Google) enable the use of one login for many seemingly unrelated sites. There must be underlying B2B licenses in place permitting such information sharing. This raises significant concerns about what happens to user-generated content under these deals. Like adhesion contractions, exclusive B2B licenses are not improper in the abstract, but properly invite heightened scrutiny. It is important to question whether Big Internet unfairly leverages market power to force other firms into content and data-sharing deals. Non-exclusive B2B licenses, on the other hand, can seem innocuous and so might fly under the radar more for both consumers, professional creators, and regulators. The vast interconnections of social media and Big Internet mean that content can wind up far from where the originator believe he authorized it. Regarding issues related to exclusive B2B licenses, I respectfully recommend that the FTC work with the DOJ to apply longstanding antitrust investigation and enforcement policies. I also recommend that the FTC revisit policies regarding horizontal and vertical exclusive arrangements in the era of Big Internet, with particular focus on potential tying of different proprietary assets such as data and content. The FTC should also investigate whether the vast, interconnected networks of content sublicenses raise any anticompetitive effect or consumer protection concerns. IV. Artificial Intelligence Content, in all its origins and forms, is critical for creating training databases for AI programs. AI must experience a wide range of ordinary content to learn to identify objects in images, music, etc. Certain content databases may be being treated as proprietary (in the aggregate), creating potential problems for AI innovation and learning by firms other than Big Internet. Platforms may also use AI to control what content consumers and professionals see, resulting in de facto blocking of independent content. In this fast-moving area, proceeding with caution will allow nascent innovation and business models to develop. It will be critical for the FTC to watch closely for leveraging and anticompetitive behavior in this space from Big Internet. (see 3 0f 3)