Themis-Athena's Garden of Books

And What the Founding Fathers Might Have Said to Each Other About It

– with apologies to Manny Rayner for the misappropriation of the title.

IN HEAVEN.

BENJAMIN FRANKLIN is looking at a computer screen showing the Goodreads logo and a review with a Hydra image at the top.

Other Founding Fathers approach, looking over his shoulder.

PATRICK HENRY: "Still hung up on life on earth, Mr. Franklin? You really should let it go, you know. After all these centuries ..."

FRANKLIN: "How can I? It's endlessly fascinating. Humanity is, you know."

JAMES MADISON: "But that thing you're holding is just one of those new computer machines they have now. I understand that you would find it interesting as an engineer – but nothing to do with humanity, surely?"

FRANKLIN: "On the contrary. It has everything to do with humanity. You see, this computer allows humans to communicate in a virtual space – leaving behind the physical world ..."

THOMAS JEFFERSON (grinning): "... a bit like us, these days, then ..."

FRANKLIN: "... although if they connect this computer to a printer, they can still print out the virtual exchange and bring it back into the physical world."

MADISON (aside, to JEFFERSON): "I had a feeling the printing business would come into it somewhere."

HENRY, to FRANKLIN: "And?"

FRANKLIN: "Well, and in that virtual space people now congregate just as they do in the physical world. They form clubs, societies, discussion forums ..."

HENRY: "Ah. And I suppose that virtual space has a government that doesn't like some of those discussions. Or the physical world's government interferes and tries to suppress them. Or some such thing. Give me liberty or give me death!"

ALEXANDER HAMILTON: "That line is so 1798 ..." *

HENRY: "You should talk – you didn't die for anybody's liberty."

HAMILTON: "I did indeed, Sir, for the liberty to speak my mind!"

AARON BURR (approaching): "To slander a man's reputation, you mean, Sir."

HAMILTON: "What is he doing here? Have they opened up the gates of hell? Get him out of my sight!"

(GEORGE WASHINGTON and JOHN ADAMS gently but firmly lead BURR away again.)

MADISON: "Isn't this a moot point anyway? If we are not talking about the real world, we can hardly be speaking about death, can we?"

FRANKLIN: "But about liberty. Free speech, especially. And as I am sure we all agree, whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech."

MADISON: "Well, we are hardly talking about nations, either, here. Or are we?"

FRANKLIN (shrugging): "Society, then. Surely you would agree that people do not suddenly change their character and their behavior when they start communicating with each other in a virtual space. They will still want to express their ideas and opinions – freely trade their ideas within the competition of the market, if you will. Thus, a discussion taking place in a virtual space is as much a discussion in the market place of ideas as a discussion in the physical world." **

JEFFERSON (nodding): "Where the best course of action, even towards opinions with which we violently disagree, is always to let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it. Yes."

ADAMS: "Excuse me, but I'm afraid I still don't quite understand how this virtual space works. Surely once an opinion, or a statement, is transmitted into this virtual space, it doesn't just float around there. It has to go somewhere specific – there actually has to be some sort of virtual equivalent to a marketplace for all this to make sense. How are these discussion forums that you mentioned created, Mr. Franklin?"

FRANKLIN: "Well, essentially someone – this can be anyone, an individual, a company, whoever – registers what is called a virtual domain and, in that domain, creates a space where the actual exchange of opinions then takes place – they're calling that a website. The one I am looking at, for example, is all about books; it's called Goodreads."

JEFFERSON: "Registering a domain – like staking a claim in previously uninhabited land, you mean; say, the way it was done in Oklahoma or Ohio when we were around and in the century after us?"

FRANKLIN: "The principle would appear to be similar, yes."

ADAMS: "But then, if this can be done by private individuals, surely any of them can, and will want to, set their own rules of behavior in their own house ... or 'domain.' Why should this be different? I mean to say, the freedom of speech that we fought for and wrote into the First Amendment is a protection against an intrusive government ... but all of us would surely still want to set rules for our own household and expect those to be obeyed, wouldn't we?"

FRANKLIN: "Maybe so, but this is a house into which people are being invited specifically with the idea of an exchange of opinions in mind. How are you going to create a viable marketplace of opinions in any environment if you preordain what people may and what they may not talk about?"

ADAMS: "But surely even in such an environment some rules are necessary – without them, any society, or any group, would just disintegrate into chaos. Think of hate speech, libel and slander, for example ..."

(HAMILTON frowns.)

THOMAS PAINE: "If, to expose the fraud and imposition of monarchy ... to promote universal peace, civilization, and commerce, and to break the chains of political superstition, and raise degraded man to his proper rank; if these things be libellous ... let the name of libeller be engraved on my tomb."

MADISON: "Hmm. An important point, Mr. Paine. The question of definition – of the labels we attach to something. How does one define 'permissible' speech – for lack of a better word – in such an environment then? On that Goodreads website, for example, that you mentioned, Mr. Franklin ... I assume there will be some rules about what types of contributions they do not wish to see. How is this being handled there?"

JEFFERSON: "And are those rules being applied evenly? I have to say that I do find the mere notion of regulating speech quite galling, even in a private environment, but at the very least, if there is such a thing at all, there should be a perception of equity and fairness."

ADAMS (muttering): "Hear, hear. The expert on avoiding double standards. Say, dear Sir, how is Sally Hemmings these days?"

ABIGAIL ADAMS (from a distance): "Now, John ..."

FRANKLIN: "Well, in what they call their Terms of Use, they prohibit content that constitutes a crime or a tort. That's to be expected, I should think. They also say, however, for example, that by making use of their service, users agree – and I quote – 'not to post User Content that may create a risk of emotional distress to any animal ...'"

(The Founding Fathers exchanged puzzled looks.)

FRANKLIN: "... or content that, quote, 'contains any information or content that we deem to be profane, or otherwise objectionable' – 'we' is the company that owns the website, of course."

MADISON (nonplussed): "I didn't realize humanity had developed mind-reading skills since our time. Users agree not to post anything that they devine the owners may subsequently deem objectionable?"

JEFFERSON (nodding): "And coming back to Mr. Madison's earlier point – and never mind whether what is profanity to me may or may not also be profanity to any of you gentlemen, or to these Goodreads people – is at least that term 'otherwise objectionable' defined anywhere?"

FRANKLIN: "If it is, I have not found that place, yet."

ADAMS: "But that is not sound ..."

(PAINE and HENRY snort.)

ADAMS: "I mean to say, how can you even begin trying to enforce such terms? Fairly and equitably, at that?"

MADISON: "How indeed."

ADAMS: "Out of interest, where is this all taking place – where is the domicile of that Goodreads company that created this website?"

FRANKLIN: "California."

HAMILTON (groaning): "They should've left that place to the Mexicans ..."

WASHINGTON: "I wouldn't say that, Alexander – strategically even of supreme importance, I'd have thought. Access to the Pacific Ocean alone, never mind its natural resources ..."

ADAMS (pulling out a sheaf of notes): "Wait a moment."

JEFFERSON: "Still following how the law on earth is evolving, dear Sir?"

ADAMS (reading): "Yes – here it is ... this seems to come up rather frequently, so I'm just going to read a bit from one decision by the Ninth Circuit Court of Appeals† – that's the one for California and the other Pacific states ...

JEFFERSON, MADISON, HAMILTON and HENRY (unisono): "We know."

ADAMS: "So as I was going to say, this decision would appear to sum up the relevant issues. It holds, in pertinent part: 'Under California law, a contractual clause is unenforceable if it is both procedurally and substantively unconscionable. Courts apply a sliding scale:  the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.
In assessing procedural unconscionability, the court focuses on whether the contract was one of adhesion ... Was there an opportunity to negotiate? The test focuses on factors of oppression and surprise. ... Whether the plaintiff had an opportunity to decline the defendant's contract and instead enter into a contract with another party that does not include the offending terms is not the relevant test for procedural unconscionability ... [The applicable case law] has rejected the notion that the availability in the marketplace of substitute goods or services alone can defeat a claim of procedural unconscionability. ... Where [one party to the contract] is facing an[other party] with overwhelming bargaining power that drafted the contract, and presented it to [the first party] on a take-it-or-leave-it basis, the clause is procedurally unconscionable.
Substantive unconscionability relates to the effect of the contract or provision. A lack of mutuality is relevant in analyzing this prong. The term focuses on the terms of the agreement and whether those terms are so one-sided as to shock the conscience. A determination of substantive unconscionability involves whether the terms of the contract are unduly harsh or oppressive ... [When the construction of a contractual clause is at issue], the concern is ... with the scope of the language."

MADISON: "Am I correct in assuming the Goodreads Terms of Use are unilaterally drafted by this Goodreads company?"

FRANKLIN: "That would be the case, yes."

MADISON: "And the average Goodreads user – would their bargaining power be equal to that of the company ... equal financial means, equal access to legal advice, etc.?"

FRANKLIN: "Goodreads is a service being used by several million subscribers worldwide, so – no, that strikes me as highly unlikely."

MADISON: "How are the Goodreads Terms of Use communicated?"

FRANKLIN: "They are posted on a designated page of the website."

HAMILTON: "Hardly surprising, then."

MADISON: "But I suppose by signing up with the service you are deemed to have agreed to the terms? It's essentially 'take it or leave it'?"

FRANKLIN: "So the Terms of Use state expressly indeed."

MADISON: "A contract of adhesion, surely, then. No free negotiation whatsoever. And the case law Mr. Adams just referenced holds that the freedom not to use this particular service but choose that of another, similar company does not make any difference."

JEFFERSON: "But not every contract of adhesion is unconscionable, and therefore unenforceable."

ADAMS: "No, but surely one can only marvel at that 'otherwise objectionable' language."

MADISON: "Particularly in light of the fact that users themselves are essentially charged with divining whether Goodreads will find their content 'otherwise objectionable' ..."

JEFFERSON: "What happens if a user is found to be in violation of the Terms of Use – say for having submitted content that Goodreads finds 'profane' or 'otherwise objectionable', for whatever reason?"

FRANKLIN: "On this, the Terms of Use state that, quote, 'Goodreads may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability for any reason, including if in Goodreads's sole determination you violate any provision of this Agreement, or for no reason.'"

HAMILTON: "So it's a contract at will. Nothin illegal in that, as far as I'm aware."

MADISON: "Well, not as such, but there does seem to be an arbitrary balance in favor of these Goodreads gentlemen – especially if you look at the way in which the adhesion nature of the terms, and that vague language we've been discussing, and the power to terminate the user's rights in Goodreads's 'sole determination' all play together. And I must say all in all my conscience finds this all pretty shocking, to use the happy phrase you quoted from that opinion, Mr. Adams."

JEFFERSON: "Yes, one has to wonder, doesn't one: Can one party to a contract compel another to accept that contract to be framed as 'at will' by way of a contract of adhesion – isn't that a contradiction in terms? Can one party force the other party to accept the right to terminate the contract at will just because it's being framed as a mutual right – doesn't that defeat the contract's very purpose? At least if the contract's very existence is premised on the notion of participation in the first place ..."

HAMILTON: "Well, this isn't exactly Rousseau's Social Contract, you know."

WASHINGTON (shaking his head, frowning): "Never mind the niceties of that case law on which you legal gentlemen are always getting so hung up: Why would any business want to behave in this manner in the first place – first invite people in and let them believe they are going to be able to have a good old chinwag about just about anything they please, and then throw them out again for no good reason whatever ... or who knows, for having just such a chinwag? Mr. Franklin, I understood you to say this is a business with several million subscribers worldwide. Surely that size did not come over night. How could they have grown to even a fraction of that size, I wonder, if they are showing this type of erratic behavior? It does not sound like solid policy to me at all."

JEFFERSON (nodding): "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes."

FRANKLIN: "Still true in every particular, that document, yes. I've been following this story for quite a while now, however ..."

MADISON to JEFFERSON (aside): "The old newspaper man again ..."

FRANKLIN: "... and it would appear that there recently has in fact been a rather drastic change of policy. As far as I can determine, application of the terms of use was initially very restrained. Indeed, the former owner of the business even agreed, not so long ago, that by deleting user content, and again I quote, 'whenever we feel like it, that we've gone down a censorship road that doesn't take us to a good place.'"

HENRY and PAINE: "Well said, Mr. Owner, whosoever you are."

WASHINGTON (simultaneously): "The former owner?"

FRANKLIN: "Yes. The business was sold a few months ago, to an even larger worldwide company."

HAMILTON: "This marketplace of book opinions must be a very lucrative thing then. I venture a guess that the buyer is in the literature business as well?"

FRANKLIN: "They are a large international seller of ... well, initially mostly books and such, I understand, but these days, really every sort of product. In the book area, they've created a special sort of computer that allows people to read books right on their computer screen – no bound and printed pages involved any longer at all."

ADAMS: "How disappointing. Those are no books at all, I do not think I would like those things. They probably don't even smell like real books, I mean, no smell of ink, and leather or cardboard or musty paper – not to speak of their look and touch ... the pleasure of actually handling the book as you are reading and turning the pages ..."

FRANKLIN: "They are hugely popular, however. They've also made it very easy for aspiring writers to get published. All they need to do now is feed their manuscripts into the services offered by this company – they are called Amazon – and from there anybody can then download their books into these new reading computers."

JEFFERSON: "Well, I suppose there goes editorial control and minimum quality standards in writing then."

HAMILTON: "Oh, but I see, and since this is all happening in the world of computers, there is probably a way to link that exchange on this Goodreads website into those new reading machines as well, isn't there?"

FRANKLIN: "There is, and I understand this was in fact the chief motive in acquiring the company."

HAMILTON (nodding): "Absolutely. The marketing potential is enormous."

JEFFERSON: "But so is the conflict of interest. An owner like this will always put selling first -- and the interests of the authors using its services to promote their books. What happens if someone dislikes a book and says so on that Goodreads website?"

FRANKLIN: "Yes, that is precisely how the conflict emerged. Authors started to complain about what they called unfair reviews – bad reviews, which occasionally also pointed out that the authors were engaging in unethical marketing methods, such as reviewing their own books under assumed false identities and outright buying favorable reviews – which I understand is something that has been going on on Amazon's own website for quite a while. Large newspapers like the New York Times and Forbes have written about it – Forbes even called the practice 'Amazon's Rotten Core'; there have been studies by universities like Yale and Cornell ... both rather prominent places these days, incidentally ... and the New York State Attorney General has started to initiate prosecutions of these people."

ADAMS: "As well he should. This is fraud, nothing less."

FRANKLIN: "Well, it would appear that Amazon and Goodreads have determined it to be in their best interest to believe the authors who deny having committed this type of fraud, and who complain about what they see as 'bad' reviews. So Goodreads determined in the interest of 'setting an appropriate tone' that comments about authors were no longer permissible."

PAINE: "But this is lunacy. It's a place for the discussion of literature. How can authors not be relevant to that discussion?"

JEFFERSON: "Exactly. If I read an article written by Mr. Hamilton here damning that man Burr to hell and back ..."

HAMILTON: "Will you please refrain from mentioning that name in my presence, Sir."

JEFFERSON: "... shouldn't I also have a chance to find out that the two gentlemen have been engaged in a personal feud practically ever since they first ran into each other?"

HAMILTON: "Every word I have ever written about him is the unmitigated truth."

JEFFERSON: "So you may believe. He calls it slander."

WASHINGTON: "The point, Alexander, is that the owner of the business must decide whether to try and arbitrate such a situation or stay out of it. And an owner who is in the business of selling books cannot be expected to be recognized as a fair arbitrator – I quite agree with Mr. Jefferson on that. There will always be a perception of partiality in favor of the authors ... of a bias in favor of sales."

FRANKLIN: "Especially if content is being struck immediately once the changed approach has been agreed upon, without any prior notice to the users at all, as happened here."

MADISON (incredulous): "I beg your pardon? – Idiots."

HENRY: "Outrageous ..."

PAINE: "Beyond contemptible."

FRANKLIN: "And speaking of ownership, there actually is yet another aspect to the issue, as Goodreads has invited its reader-users not only in to discuss books, but also to curate that website – to maintain its virtual catalogue of books current and correct, and perform other tasks that would fall to a librarian in the physical world. Indeed, they are calling the users who volunteer for this work – without any compensation, incidentally – 'librarians.' And by investing a substantial part of their free time into the site, users – librarians especially – have come to actually consider it their website. Not in the sense of legal ownership, of course, but in the sense that this is a a place and a community, albeit a virtual one, that they deeply care about and are invested in every way but as legal owners."

JEFFERSON: "Well, then it strikes me that there is really only one thing they can do. (Reminiscent:) 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ... That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness ...'"

PAINE: "Hear, hear."

WASHINGTON (amused): "A virtual revolution. And how would you stage that, Mr. Jefferson?"

FRANKLIN: "I can tell you how it was in fact staged, General ... Mr. President."

WASHINGTON: "Oh?"

FRANKLIN: "Yes, you see, that is where this Hydra image here on the screen becomes relevant. One of the website's best-known reviewers – I think I'm very much going to enjoy meeting him some day, as a matter of fact – convinced a group of his friends to replicate every censored review and preface it with this Hydra image, to symbolize that whenever reviewer content was removed, the same content would come back two- and threefold. The practice spread like wildfire. In addition, reviewers took to submitting what they called protest reviews, which purposely broke every rule in the Terms of Use in order to show the arbitrariness of their wording and application. Soon the administrators of the site had their hands full deleting things right, left and center; especially since users also expressly 'flagged' each others' reviews as a violation of the terms – flagging brings content to the attention of the website's administrators, you see. Ultimately, when they could find no other grounds for deletion, Goodreads just labeled such reviews as 'off topic' and removed them on those grounds. And pray do not ask me what 'off topic' is even intended to refer to, because I cannot make head nor tail of it, either."

ADAMS: "Well, I assume they would include it in the description of 'otherwise objectionable' ..."

MADISON: "It is certainly on the same level of specificity. Or rather, lack thereof."

WASHINGTON: "And we all know first hand where that sort of action leads in the physical world."

HENRY (nodding): "Give me liberty or give me death! I knew the sentiment had to come in somewhere."

WASHINGTON: "Except that you really cannot kill someone in that virtual space they have nowadays. Surely that is still something that can only happen in the physical world."

FRANKLIN: "I wouldn't say that – as a matter of fact, you can wipe out someone's existence in the virtual world even more easily than in the physical world. You see, all the administrator of a website needs to do is delete their account with the website – or if they come back and open a new account, ultimately by blocking the computers they are using to access the site. And several of the 'Hydra' users have indeed been threatened with the removal of their accounts, I understand."

MADISON: "Which, in the words of that original owner of the business, would mean that they now really have 'gone down a censorship road that doesn't take them to a good place.'" Well, such a road wouldn't take them anywhere else, would it? It simply can't."

FRANKLIN: "No, indeed not. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech. I quite regret what's becoming of this Goodreads website – I will not hold back from you that I quite used to enjoy it myself ... not only for the very useful information about the tens of thousands of books that have been published since our time – you would be quite astonished, I assure you, gentlemen – but just for the sort of allegedly 'off topic' commentary that is now prohibited. But there it is ..."

ABIGAIL ADAMS (joining the group): "And what is becoming of the reviewers who feel they are no longer wanted?"

FRANKLIN: "Oh, many of them have since decamped to a similar, newer website called BookLikes. It's a bit like the Pilgrim Fathers' Massachusetts and Virginia colonies – very much under construction still – but by and large, they sound like they are quite happy there. As were our ancestors in the early days of the colonies ..."

HAMILTON: "Well, what happens when this new website becomes too large to be run on a small budget, as I assume it currently is – or such an interesting target that this Amazon business, or some company like Amazon, will want to acquire it in turn? That would appear to be the catch, wouldn't it? Either stay small and only marginally profitable, but fly under the radar and be able to foster an environment where readers can have the discussion they want. Or become large and attractive, but thereby also attract the attention of a potential buyer who will turn the business model on its head. The one may be preferable from the users' point of view, the other, undoubtedly, from the owner's. How will that conflict be resolved?"

FRANKLIN (smiling): "Well, in theory there is a third option, of course: They could also become large and successful enough to be able to rule their world – their business environment – themselves, as our country has become ... well, in a manner of speaking at least. But the future does have some of those 'burned' reviewers worried, and I cannot blame them. And who knows, maybe the only long-term solution really is going to be to bring legal ownership and ... shall we call it emotional ownership together. Interesting times down on earth, gentlemen, in any event. I wouldn't miss watching them for anything in the world. And I am sure if we were still around we'd be able to lend a bit of a hand ..."

WASHINGTON: "A toast to that. You, angel – a round of nectar and some ambrosia for these brave gentlemen and myself! (Looking at MRS. ADAMS:) And for the lady, of course!"

Notes:

* Patrick Henry died in 1799.

** The first U.S. Supreme Court opinion referencing the notion of a marketplace, or a free trade of ideas was Abrams v. U.S., 250 U.S. 616 (1919), where that description appears as part of Justice Oliver Wendell Holmes Jr.'s dissent. It became a staple of appellate U.S. First Amendment case law after having been centrally relied on by Justice William O. Douglas in his concurring opinion in United States v. Rumely, 345 U.S. 41 (1953), a case that upheld, on First Amendment grounds, the right of individuals and organizations to refuse to divulge to the government the identity and particulars of the members/subscribers to an organization critical of the government.

† Davis v. O'Melveny & Myers, 9th Cir. No. 04-56039, argued and submitted March 7, 2006; opinion of May 14, 2007, citing, inter alia:
Nagrampa v. MailCoups, Inc., 469 F.3d 1257 (9th Cir.2006) (en banc);
Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000);
Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir.2001);
Szetela v. Discover Bank, 97 Cal.App.4th 1094, 118 Cal.Rptr.2d 862 (2002);
Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 778 (9th Cir.2002);
Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir.2003) ("Ingle I");
Morris v. Redwood Empire Bancorp, 128 Cal.App.4th 1305, 27 Cal.Rptr.3d 797 (2005);
Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (9th Cir.2002) (on remand).