Hadopi Begins Issuing Tens Of Thousands Of 'Notices' For Infringement In France

Expectations Matter, Even If You're Not 'A Customer'

from the false-distinctions dept

Tue, Sep 21st 2010 6:24pm — Mike Masnick

We recently had a discussion about law professor Eric Goldman's complaints about Scribd, after the site, which he'd been using regularly to upload and share legal documents, quietly put up a paywall on older documents without making that clear to users. Suddenly, many old documents that Goldman had thought he was sharing with the world, were hidden behind a lock and key, unless you paid up.

While many people agreed that this was a mistake on the part of Scribd, in talking with Goldman separately about this, he noted that a few people strongly disagreed with his position, and noted (accurately) that he was getting a free service from Scribd, and thus he was "not a customer" and shouldn't complain at all. We received a few similar comments here, effectively suggesting that if you're not paying, you're not a customer and, thus, have no right to complain.

This is silly -- and wrong. It's where the often artificial distinction between "customer" and "user" and "product" gets blurry and, at times, questionable, especially in the realm of "user-generated" content. There are more ways to "pay" than with money. In Goldman's case, he's actually been "paying" Scribd by providing it with valuable, sought-after content that he uploads. Scribd is "paying" Goldman with free hosting, bandwidth and services. Advertisers are "paying" Scribd with money. Users are "paying" Scribd with their attention. All are "customers" in some sense, while also being users and, potentially, "the product," as well. Focusing only on the relationships where actual cash exchanges hands misses the point (greatly).

Once you realize that, it makes perfect sense for Goldman to complain. He was using the service under pretty explicit terms that he was providing these documents to share them with the world. Scribd unilaterally (and quietly) changed those terms on him, to something completely different. In turn, by pissing off Goldman, and having him seek alternatives, Scribd is actually harming its overall site. Even if you accept the narrow definition of "customer," to suggest that Scribd's only customers are their advertisers, pissing off Goldman should still be seen as a problem, because as Goldman uses alternative services, it lessens the "product" that Scribd can offer to those particular "customers."

So rather than going with the kneejerk, "well, if he's not paying for it, he has nothing to complain about," it's important to look at the overall ecosystem, and how different pieces are "paid" in different ways -- and how upsetting one key element of that ecosystem, can harm all sorts of "customers."

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Filed Under: customers, user generated content, users
Companies: scribd

33 Comments

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ChurchHatesTucker (profile), 21 Sep 2010 @ 6:50pm

Exactly
"In Goldman's case, he's actually been "paying" Scribd by providing it with valuable, sought-after content that he uploads. Scribd is "paying" Goldman with free hosting, bandwidth and services. Advertisers are "paying" Scribd with money. Users are "paying" Scribd with their attention."

You can build a house with cards, but you can't start to cater to, e.g., the diamonds, without endangering the whole structure.
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jfgilbert (profile), 21 Sep 2010 @ 7:02pm

Matter of definition
If you are not paying, you are not the customer, you are the product.
Scribd did something stupid and are not helping themselves, not because they are losing a customer, but because they are losing their product.
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- Rich, 22 Sep 2010 @ 2:00pm
  
  Re: Matter of definition
  An an engineer, I was always taught that anyone relying on me for something is a customer. Even a colleague waiting on me for a design document is a customer.
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Anonymous Coward, 21 Sep 2010 @ 7:12pm

Can anyone suggest a Scribd alternative?
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- Jose_X, 22 Sep 2010 @ 8:02am
  
  Re:
  Mike (Masnick), like this anon comment here, you asked in the other story if people knew of alternatives. I don't have a lot of experience with hosting, but would bandwidth and server load be the problem with hosting your own scribd-like feature or are you worried about the software code that implements the scribd-like links? I am curious to know from someone that hosts a largish site what would be the primary concern (or something else).
  
  As far as code to get the effect, I would think that can be achieved without too much trouble by people with experience. I have some experience but haven't looked at the webpage source (I imagine it might be iframe maybe and/or surely some javascript and maybe some pre-processing at the server to format everything just right). Maybe I can help research or build this. Lot's of people would probably like to have an alternative. My only interests when it comes to coding software is open source (something like agpl).
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Jay (profile), 21 Sep 2010 @ 7:16pm

Other links
I believe this links more into the social mores that has been discussed as well.

The more people that see this and make a stink, the more that Scribd may be forced to change their services BACK to what made more sense. Right now, the archive (as I read it) was nothing more than an arbitrary paywall for Scribd to make more money off of other's work. Really, why should customers pay to look at information?

What I am having trouble is finding any documents that are currently in the Archive.

I did find this in the FAQ:

"Why do I have to pay for an Archive Subscription to download documents from the Scribd Archive and my friend does not?
jerry Jul 27

We want to reward our most active users. Those who give back to the Scribd community by uploading, participating, commenting, etc. may be able to download from the Scribd Archive without purchasing a subscription."

To me, this really seems lopsided. Basically, if you're a new user, it's like Scribd is punishing you with a "newb tax" for wanting to seek information.

I really hope they take down the paywall, even if I'm not seeing the direct effects right now.
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- Malodorous Intent (profile), 21 Sep 2010 @ 7:33pm
  
  Re: Other links
  Even if they do take down the paywall, the customers that already feel betrayed won't return anytime soon.
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B's Opinion Only (profile), 21 Sep 2010 @ 7:17pm

Mike, the third paragraph of your article blew my mind. You have succinctly and perfectly summed up the Internet economy.
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- Anonymous Coward, 22 Sep 2010 @ 9:40am
  
  Re:
  It's the new barter system, only nobody knows it.
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Dan Voell, 21 Sep 2010 @ 8:42pm

A customer is a customer
Having a free version and a paid version often creates false incentive to take away services for the free version in the hopes they convert to paid. You can provide better service to a paid customer but you shouldn't ever write off a non-paid customer. Obviously they have a free version with a goal of converting them to paid customers. Bad move by Scribd.
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Anonymous Coward, 21 Sep 2010 @ 9:41pm

Mike wants his free lunch
And it's called
http://issuu.com/
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V (profile), 21 Sep 2010 @ 10:12pm

–noun
1.a person who purchases goods or services from another; buyer; patron.
2.a person who buys
3.a person or business that purchases a commodity or service

Using free services or goods does not make you a customer, period. If every business ran without payment, there would be no businesses and therefore no customers.
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- DMNTD, 21 Sep 2010 @ 10:26pm
  
  Re: sigh
  Well ...we can see you read NOTHING and responded with NOTHING. Ok, now lets add something and the fact of the matter is as pointed out in Mike's third paragraph all your answers are there noting else can be said. Just added or ignored.
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- Anonymous Coward, 21 Sep 2010 @ 11:15pm
  
  Re:
  You're right, Goldman isn't a customer. He's an unpaid employee. Scribd runs its businesses off the backs of thousands of individuals who tirelessly write their works and give them to Scribd, free of charge, without expectation of monetary compensation.
  
  If every business ran without a product, there would be no businesses, and therefore no products. I suppose Scribd feels that they are contrary to that.
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  - Mike Masnick (profile), 22 Sep 2010 @ 12:27am
    
    Re: Re:
    You're right, Goldman isn't a customer. He's an unpaid employee. Scribd runs its businesses off the backs of thousands of individuals who tirelessly write their works and give them to Scribd, free of charge, without expectation of monetary compensation.
    
    Or you flip that and say that Scribd provides server space, bandwidth, formatting, and display capabilities free of charge, without expectation of monetary compensation.
    
    So, you could just as easily claim that Scribed is an "unpaid vendor."
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- Mike Masnick (profile), 22 Sep 2010 @ 12:26am
  
  Re:
  Using free services or goods does not make you a customer, period. If every business ran without payment, there would be no businesses and therefore no customers.
  
  Who said every business ran without payment? You didn't even read the post, did you?
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- PaulT (profile), 22 Sep 2010 @ 4:33am
  
  Re:
  Helps not to cherry pick your definitions without citation, of course. For example, your first definition says it's someone who "purchases goods".
  
  From Websters, to "purchase" means the following:
  
  a archaic : gain, acquire
  b : to acquire (real estate) by means other than descent
  c : to obtain by paying money or its equivalent : buy
  d : to obtain by labor, danger, or sacrifice
  
  ALL definitions except c can refer to obtaining goods for "free" (and even then it can be argued that the content counts as an equivalent to money), and d in this case can certainly refer to the process of gaining service in return for the content that Goldman has provided to them.
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- jc (profile), 22 Sep 2010 @ 5:42am
  
  Re:
  mo·ron
  [mawr-on, mohr-]
  –noun
  1.a person who is notably stupid or lacking in good judgment.
  2.Psychology . a person of borderline intelligence in a former classification of mental retardation, having an intelligence quotient of 50 to 69.
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- PrometheeFeu (profile), 22 Sep 2010 @ 7:22am
  
  Re:
  Let me guess. You took econ 101 and then returned to your literature, law or business major with the certainty that the dollar sign on the vertical axis of the supply and demand graph means people are solely motivated by money. The classification business/customer may be useful in some cases, but it does not describe the economy. The economy is built on mutually beneficial exchanges. Money may or may not be involved. Scribd exchanges hosting for content, content for eyeballs, eyeballs for money. All three of these types of transactions are critical to Scribd's business model. When they undermine the trust that some of their partners puts in them, they undermine their business model period. Your definition is a no-op.
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- Rich, 22 Sep 2010 @ 2:10pm
  
  Re:
  People who try to argue with dictionary definitions (especially when they just pick the one(s) that fit their argument), should automatically lose. Dictionary definitions of words are never as precise as when used in various disciplines.
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Anonymous Coward, 21 Sep 2010 @ 10:18pm

Scribd doesn't own that content.
Scribd doesn't own that content, regardless of what their TOS might or might not say.

Scribd offered free services and people uploaded documents for the good of others.
By erecting a paywall, Scribd is claiming those documents as their own.
Clearly this is wrong, since no one would have uploaded documents to benefit Scribd. Only to benefit others.
Scribd is essentially appropriating other person's property that was entrusted to them in confidence. The posters had an expectation that information would be available freely to others. Or they would never have uploaded it for free.

Know what other website that is doing this?
http://www.experts-exchange.com/
People posted their knowledge on numerous subjects gratis to benefit others- millions of posts. High level technical knowledge, too, collected over several years time.
Now, we get incessant spam trying to sell us "corporate accounts", so we can look up information posted to their site for the benefit of others, not for them.
They misappropriated that knowledge. It's not *theirs*.
Regardless of what they wrote in their TOS.
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- Anonymous Coward, 21 Sep 2010 @ 10:47pm
  
  Re: Scribd doesn't own that content.
  Oh, my...a commercial enterprise profiting from distribution of works for which they don't hold the rights, and without permission of the rightsholders...?
  
  :O
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- jc (profile), 22 Sep 2010 @ 5:45am
  
  Re: Scribd doesn't own that content.
  Experts exchange is probably one of the greatest examples of a "company" who built their entire business model on the phrase "screw everyone".
  
  Of course, this made room for things like stackoverflow.com which is actually a much better site.
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robin, 22 Sep 2010 @ 3:52am

html5
issue 1: your article was fantastic mike, would have been even better if you had included some thoughts on the perils of trusting a third party, this "cloud" we speak of way too often, which leads to

issue 2: i researched the subject but came up empty...how to self-host embeddable pdf documents. as the html5 standard becomes more and more implemented, hopefully some enterprising young coder will put together such a tool: a plug-in for your c.m.s. to accomplish just that.

after all, it makes sense for a leading professor (mr. goldman) or a leading blogger to be a repository of such documents and resources.
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- robin, 22 Sep 2010 @ 3:58am
  
  Re: html5
  go figger :). five minutes later:
  
  http://wordpress.org/extend/plugins/google-document-embedder/
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Anonymous Coward, 22 Sep 2010 @ 8:56am

This issue resembles Promissory Estoppel.
If Person A causes Person B to reasonably rely on Person A, (it must be reasonable for both people to expect the other party to rely) and Person B is harmed by Person A not following through, Person B may have a cause of action. Promissory Estoppel
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Mikael Høilund, 22 Sep 2010 @ 9:36am

If your business couldn't survive without a single X, X has a right to complain when said business changes. In all but a few cases, X is indeed a customer by any meaningful definition.
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Jeremy7600 (profile), 22 Sep 2010 @ 9:52am

Where I work is a sign: "Our customers are the most important element of our business. They are not dependent on us - we are dependent on them. They are not an outsider in our business, they are part of it. We are doing them a favor by serving them; they are doing us a favor by giving us the opportunity to do so." I wish the telco's, newspapers, Scribd, etc, would figure this out.
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Gene Cavanaugh, 22 Sep 2010 @ 11:57am

Scribd
I strongly agree with Mike's comments, but take issue with the "not a customer" statement (by whoever).
While I stopped practicing civil and criminal law a long time ago, and now focus narrowly on small entity IP, I remember the relevant classes as if it was yesterday (law is fascinating, when you really get it!).
The law then, and I expect now, is the exchange of benefits creates a contract (thereby making one a "customer"). Scribd has the benefit of a larger viewer base. Marginal benefit? Sure. Adequate? Certainly!
So, paying or not, he is/was a customer!
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- Anonymous Coward, 24 Sep 2010 @ 10:45am
  
  Re: Scribd
  Contract doesn�t necessarily equal customer, only relationship. I don�t think anyone is taking issue with the fact that there is SOME relationship between the parties. But is it supplier or customer? Further, the mere exchange of benefits does not always make a contract. There are the requirements of offer and acceptance and mutual agreement. That being said, I agree with you here that it seems likely there is a contract, or at least an understanding that may be equitably enforceable. However, Eric (or anyone else for that matter) need not be a customer to enforce his rights. Even if he is a supplier, if the "promised payment" to supply information was that Scribd would perform certain obligations, he may have a cause of action against Scribd.
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TJGeezer (profile), 22 Sep 2010 @ 12:15pm

The mannered sigh
Just curious - why is it that people who preface a remark with "sigh" then make ideological points without responding to what was said? Do they really think pretending to long-suffering patience keeps people from noticing they stepped off topic to instruct or indict with some irrelevant cliche? It just makes 'em seem stupid, to me.

Speaking of which, I wonder if anyone in their right mind, knowing what Scribd has done, would trust them with their own original content? I know I wouldn't. So it seems like poor business practice to me, and please spare us all the the "sigh. it's their site they can do what they want" remarks. I already agree - they can shoot themselves in the foot all they want, for all I care.
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EM, 3 Oct 2010 @ 10:32pm

I agree. Here in Canada we more and more use the term "stakeholder", rather than 'customer'. That old terminology has gotten too nebulous, too gray, too fuzzy. We are all customers in some sense. Whether you supply something or purchase something. We are organically related to each other much in the same way that organisms in an ecosystem are.
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EM, 3 Oct 2010 @ 10:34pm

I agree. Here in Canada we more and more use the term "stakeholder", rather than 'customer'. That old terminology has gotten too nebulous, too gray, too fuzzy. We are all customers in some sense. Whether you supply something or purchase something. We are organically related to each other much in the same way that organisms in an ecosystem are.
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