Prosumer Law and Network Platform Regulation: The Long View Towards Creating OffData
Platform regulation has become the cause celebre of technology regulation: a call to regulate the intermediaries who provide platforms for networked digital services. These include the GAFA giants: Google, Amazon, Facebook, and Apple. Many policy entrepreneurs are peddling solutions as the policy cycle turns, in a classic Kingdon case of “solutions chasing a problem.” Yet networks are not new, and their platforms have been regulated for hundreds of years, generally unsuccessfully. In this article, I take the long view, focusing on the railways/telegraphy regulation of the 1840s in England and the ‘fake news’ problems of 2011 to date. I offer some historical examples that may be highly relevant to ‘prosumer’ digital capitalism 180 years later.
Prosumers (a term coined by Toffler) are active users who are sharing and producing content, rather than passively consuming it, notably ‘hacking’ content using techniques famously described as “rip, mix, burn.” Any Internet user who has posted content, from Facebook to Twitter to blog posts to podcasts, has become a prosumer—though there are very broad categories, ranging from the occasional tweeter to the fully developed hacker. Over two billion people now use Google to search for content; Facebook, Instagram, and WhatsApp to share news, gossip, and photos; YouTube to watch and upload videos; and Twitter, Snapchat, and other sites to say just about anything.
We are all becoming ‘prosumers’ sharing intimate details of our personal lives. But this ‘prosumer environment’ is currently either grossly unregulated—leaving users’ data and content at the mercy of the multinational companies who host it and sometimes claim to own it—or is subject to knee-jerk over-regulation, as with the current ‘fake news’ law (“Netzwerkdurchsetzungsgesetz”) in Germany. The prosumer environment is a new regulatory policy cycle in network regulation.
I wish to thank the contributors to this special issue of the journal and its editors, and participants at the Georgetown Technology Law Review symposium on 23 February 2018 on ‘Platform Law,’ especially Julie Cohen, Mireille Hildebrandt, Paul Ohm, Danielle Citron, James Grimmelmann and Deidre Mulligan. I also wish to thank the panelists and participants at the Wharton Business School symposium on ‘Twenty Years after the Digital Tornado’ on 10 November 2017, the contributors and participants at the Munster Institute for Information and Telecommunications Law twentieth anniversary symposium in Berlin, Germany on 15 July 2017, and the contributors and participants at the eleventh annual Gikii symposium in Winchester, England on 15 September 2017. All errors and omissions remain my own.