Competitive Enterprise Institute | 1899 L ST NW Floor 12, Washington, DC 20036 | Phone: 202-331-1010 | Fax: 202-331-0640
Seems it’s time once again to act surprised that Facebook is a social network.
Surely you’ve noticed the “Sponsored Stories” ads on Facebook, noting that a friend of yours “Likes” some product or other, inviting you to click and check it out.
Used since January 2011, such ads appear more effective than the typical kind.
CEO Mark Zuckerberg  has noted that “nothing influences people more than a recommendation of a friend” and that a “trusted referral is the Holy Grail of advertising .”
But because they were and are effective, it’s high time for some who’ve expended no effort to make an entitlement claim, and to have a judge endorse it.
Facebook stands accused of violating California’s “right of publicity” statute , which bars the non-consensual use of another’s name, voice, signature or likeness in advertising .
Something seems amiss in regarding Facebook’s unsurprising use of a purposely shared act such as a product “Like” on a social network as a non-consensual or “unauthorized use.”
Rather, the act of Liking seems an explicit affirmation within the limited Facebook setting — where one is is availing oneself of free resources besides.
Regardless, a U.S. District judge in Palo Alto has allowed a lawsuit to proceed on the grounds that plaintiffs might profit from the gain in ad revenue from their “endorsement.”
But such “endorsements” are merely seen by the same friends we already told or added, if that’s the way we’ve configured Facebook. Moreover, our Likes appeared in the News Feed (also originally attacked) that anchors the entire Facebook universe; Likes reside on our info pages.
It seems we all knew and were complicit in the whole purpose of the “Like”; to tell others something about us. I “Liked” Dr. Pepper and Sea-Doo, for example . I accidentally Liked Darius Rucker and didn’t get around to changing it; I meant Hootie and the Blowfish instead.
You can even “Like” Judge Lucy Koh’s ruling , if you dare.
Facebook is a commercial network about which great fuss has been made over its price (free), its pending IPO, and speculation over how it would “monetize” and sustain over time and under competitive stress.
The 100 percent known method, though, was advertising, clear to all from day one, including to those now claiming entitlement. They seem eager to use a social network and not pay, yet deprive it of other revenue besides.
If Facebook “Likes” are to be a contrived problem, the least invasive way to cope is to stop using the button and to simply “Unlike” what one liked; then henceforth bookmark items the old-fashioned way, or click “Save As” and stick them on the hard drive.
Ruling against Facebook ushers in a certain kind of future, a diminished one that shrinks the universe of types of social networks that can exist in the future.
Permitting Facebook’s “Liking” practices and letting it respond to consumer feedback preserves choice, and enshrines the presumption that that all future social networks may experiment as well. The way consumer choices get built into social networking is a process, not something properly set in stone today.
If a public outcry causes Facebook to change, that’s perfectly fine, but at this experimental stage of social networking, it’s poor policy to forcibly interfere with this competitive and interactive process. Competition can propel various levels of endorsement and protect all our preferences, not just those of vocal plaintiffs.
If enough people opt out, either directly by refraining from “Liking” stuff in the future or by some other configuration change, Facebook may decide to give agitators a penny for some number of clicks in exchange for Likes.
But beware; any ruling for plaintiffs at least needs to subtract from the pennies of which they feel cheated the value of having a Facebook experience, which I would easily peg in the thousands of dollars. Any judge in any similar dispute must not leave that value out.
For the revolution they have given us, some of us with more humility than the plaintiffs might feel indebted to the Facebooks and Googles, Evernotes and Dropboxes of the world for what they’ve delivered.
Bless the free cloud.
Indeed, if statutes like California’s prove the barrier to social networking’s advance, then it’s those statutes that probably should change, not the greater Internet economy and the very cause of social networking.
It’s far better in my view for networks to evolve, allowing the creative use of “Likes” and future equivalents with users registering their preference with the companies competing for your trust, rather than governments.
Hampering advertising excites some; it always has. But there’s no reason for them to call the shots for anyone but themselves, especially by compulsion.
Social networks are increasingly configurable and can do right by all of us, as long as the Grinches and Scrooges don’t force their preferences on us all. They’re welcome to join an antisocial network.
Happy Holidays regardless!