Influence as Property

I’ve never played Second Life, but I get the impression it’s sort of an alternative reality for those who don’t have much going for them in the real world. Kind of like Twitter.

The novel thing about Second Life was that it granted intellectual property rights to its users, where “property” takes the form of digital items, like buildings on a virtual plot of land. It’s different from owning the rights to a tweet, or a nonfungible token in the Ether — there’s a concept of exclusion. Second Life communities are organized into neighborhoods, and if you occupy one spot someone else can’t have it. While a tweet or CryptoKitty image can be republished elsewhere, a virtual house is worthless in the absence of context.

In the past, deplatformed users have successfully sued Second Life for wrongful confiscation of virtual items. In one case, the court issued a restraining order against Second Life to stop the game from deleting a user’s horses1. (Possibly a violation of the company’s First Amendment rights, but they didn’t try to appeal it.)

Social media platforms use an outdated notion of IP, where production costs are high and distribution costs are low. Eg. It’s expensive to record a song, cheap to burn a CD. In our always-online world, attention is the scarcest commodity, and distribution — acquiring an audience — is hard. That’s why SEO and social media consultation is a multibillion dollar industry.

When people complain about deplatforming, they’re not really complaining about censorship — Yes, we can go start our own website or move to Parler or whatever. They’re complaining about the wrongful confiscation of influence. President Trump wasn’t censored — he was de-influenced.

But what if we make it an NFT on the blockchain??

I know, I know, you just vomited on your screen and now it’s hard to read. Hear me out.

Youtube can deplatform or demonetize people at will. There’s a contractual relationship that says so, and it’s called the Terms of Service. Either party can end it at any time.

On the other hand, an external party can’t force Youtube to deplatform anyone. That would be tortious interference — intentionally damaging the business relationship between a platform and creator. Like when President Trump tried to ban TikTok: A federal judge issued an injunction on behalf of TikTok creators – not the company – to block Trump’s ban, finding that those TikTok influencers would lose access to their income2.

NFTs encapsulate a direct relationship between artist and consumer. Actually, I have no idea what they encapsulate. People are tokenizing all sorts of abstract intangible infungibles; so I’m gonna tokenize my Twitter influence. I’m not tokenizing a tweet, or an atomic account. It’s art, so context matters. I’ll sell my Twitter-influence NFT for a sum, and any subsequent attempt to deplatform me is then a violation of my right to have a business relationship with the token holder3.

Bidding starts at 1 sat. Let’s GOOOOO!

1. Amaretto Ranch Breedables, LLC v. Ozimals, Inc.
2. Marland v. Trump
3. There is precedence, sort of. Last year, a court denied an injunction filed by Patreon after the company was sued by the backers of a politically incorrect creator. A Patreon creator has an economic relationship with his backers, therefore a ban that disrupts this relationship is considered tortious interference.

6 thoughts on “Influence as Property

  1. I’m nearly certain I’ve commented on this exact blog about Tortious Interference in the past. That it sounds like a disease caught by a radio and challenging anybody to identify that reference. Does Elaine have a dissertation on it that none of know about? WHY ARE YOU SO OBSESSED WITH IT, ELAINE?!?

  2. A tort is a French/Norman word for wrong, or twist. Interfering with another’s contract is damaging to the peace and so Judges invented a remedy of damages and injunction for whatever they consider is egregious enough…. BL and MA Mod in Legal Science, so there!

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