Sociology of patenting and buybacks

'On the Sociology of Patenting' by Dan L. Burk in Minnesota Law Review (Forthcoming) comments 

 Recent commentary on the patent system has argued that there is little evidence supporting the incentive justification for patenting, so that continued faith in patents constitutes a kind of irrational adherence to myth or falsehood. While an obituary for the incentive theory of patenting is likely premature, the concept that the patent system is based upon myth should not be surprising. Over the past 30 years, some of the most prominent work in sociology has focused on social ordering, including legal ordering, that is found to be structured around prevalent social narratives or myths. Explicitly rejecting the economic construct of rational behavior, such “new institutional” approaches to social ordering recognize that organizations adopt practices and structures according to widely recognized scripts or conventions that lend legitimacy to their goals. In this essay I suggest that the known behavior of patenting firms likely fits the models developed in new institutional sociology: firms patent because other firms patent, because investors expect them to patent, and because patents validate the firm as innovative and reputable. Following such conventions is socially rational, but not necessarily economically rational. Applying new institutional approaches to patenting could explain several pervasive yet puzzling behaviors within the patent system, and moves us away from interminable fruitless arguments over the idealized efficiency or inefficiency of patents.

'How Stock Buybacks Make Americans Vulnerable to Globalization' (Working Paper, East-West Center Workshop on Mega-Regionalism) by William Lazonick comments 

Drawing on a large and growing body of research, I summarize how rationalization, marketization, and globalization have eroded middle-class employment opportunities since the 1980s. Then I document the extent to which over the same time-period financial interests, including senior corporate executives, have extracted cash from companies in the name of maximizing shareholder value. Finally I indicate why this value-extracting activity has rendered ineffective traditional macroeconomic and international trade policy. I call for a policy focus on the governance of business enterprise to support stable and equitable growth.

He argues

There is an integral relation in the U.S. economy between the explosion of the incomes of the richest households and the erosion of middle-class employment opportunities. Since the early 1980s, employment relations in U.S. industrial corporations have undergone three major structural changes, summarized as “rationalization,” “marketization,” and “globalization,” that have eliminated existing middle-class jobs in the United States. Exacerbating the rate of job loss and limiting business investment in new career employment opportunities has been the financialization of the business corporation, manifested by massive stock buybacks in addition to dividend payments. 

From the early 1980s, rationalization, characterized by plant closings, terminated the jobs of high-school educated blue-collar workers, most of them well-paid union members. From the early 1990s, marketization, characterized by the end of a career with one company as an employment norm, placed the job security of middle-aged white-collar workers, many of them college educated, in jeopardy. From the early 2000s, globalization, characterized by the offshoring of employment to lower-wage nations, has left all U.S. workers vulnerable to displacement, whatever their educational credentials and employment experience. 

These structural changes in employment relations were, initially, business responses to changes in technologies, markets, and competitors. In the early 1980s, permanent layoffs of blue-collar workers were a reaction to the superior productive capabilities of Japanese competitors in consumer-durable and related capital-goods industries. In the early 1990s, the erosion of the one-company-career norm among white-collar workers was a response to the dramatic technological shift from proprietary systems to open systems, integral to the microelectronics revolution; a shift that favored younger workers with the latest computer skills, acquired in higher education and transferable across companies, over older workers with many years of company-specific experience. In the early 2000s, the sharp acceleration in the offshoring of jobs was a response to the emergence of large supplies of highly capable, and lower wage, labor in developing nations such as China and India which, linked to the United States through inexpensive communications systems and global value chains, could take over those U.S. employment activities that had become routine. 

Once U.S. corporations transformed their employment relations, however, they often pursued rationalization, marketization, and globalization to cut current costs rather than to reposition their organizations to produce competitive products. Defining superior corporate performance as ever-higher quarterly earnings per share (EPS), companies turned to massive stock repurchases to “manage” their own corporations’ stock prices. Trillions of dollars that could have been spent on innovation and related job creation in the U.S. economy over the past three decades have been used instead to buy back stock for the purpose of manipulating stock prices. Legitimizing this financialized mode of corporate resource allocation has been the ideology, itself a product of the 1980s and 1990s, that a business corporation should be run to “maximize shareholder value” (MSV). Through their stock options and stock awards, corporate executives who make these resource-allocation decisions are themselves prime beneficiaries of rising stock prices and EPS. While rationalization, marketization, and globalization have undermined stable and remunerative employment relations that characterized the post-World War II decades, the financialization of the U.S. corporation has ensured that new employment relations that support stable and equitable economic growth have not been instituted to take their place. Rather the top priority of senior corporate executives has been MSV, manifested by massive stock repurchases, often in addition to generous cash dividends. Incentivizing these distributions has been the stock-based 

remuneration of top corporate executives. Over the past decade, moreover, at an accelerating rate, hedge-fund activists have joined in the feeding frenzy in a process that can only be described as the legalized looting of the U.S. industrial corporation. Drawing on a large and growing body of research, I summarize how rationalization, marketization, and globalization have eroded middle-class employment opportunities since the 1980s. Then I document the extent to which over the same time-period financial interests, including senior corporate executives, have extracted cash from companies in the name of MSV. Finally I indicate why this value-extracting activity has rendered ineffective traditional macroeconomic and international trade policy. I call for a policy focus on the governance of business enterprise to support stable and equitable growth.

Apologies

'“Trust Me, I’m Sorry”: The Paradox of Public Apology' by Alice MacLachlan in (2015) 98 The Monist 441-456 comments

Our attitude to official apologies is paradoxical. Despite widespread critique of most apologies issued by heads of state, government, and NGOs, public demand for such apologies continues to arise with predictable regularity — we demand even as we condemn. I argue that the role of apologies in securing public trust in a democratic contextcan explain this paradoxical attitude. By contrasting private and public apologies, I demonstrate that the latter have emerged as a performative (rather than legal or structural) model for accountability, and thus for reinspired public trust. I conclude by demonstrating significant democratic risks to this practice.

This apology means nothing. After what they’ve done, why would we trust a word out of their lying mouths? How can we move forward when they won’t even say they’re sorry?

An astute observer of public apologies will recognize the dissonance expressed in the two sentences above. Together, they demonstrate what we might call the paradox of public apology: namely, that even as we condemn (and outright mock) the public apologies issued by heads of states, politicians, as well as CEOs of corporations and other NGOs, public demand for such apologies continues to arise with predictable regularity each time a public figure or institution is found guilty of wrongdoing, negligence, or failure.

We seem to insist on this ritual even as we indict it as just that — mere ritual. Why is this? Why demand something that is increasingly devalued and dismissed? If official apologies are little more than political theater, why does the public appetite for this performance remain so insatiable? In this paper, I draw out a significant, shared element motivating both the dismissal and the appetite for contemporary public apology: trust. I propose that the significance of public trust goes a long way to explaining the paradox of apologies. While apologies have multiple functions, each function aims, in part, to restore conditions of warranted trust following wrongdoing (Koehn 2013). In typical cases of interpersonal apology, often taken to be the model for public apologies, the relationship be-tween apology and trust becomes a question of measuring trustworthiness; a successful apology persuades the recipient that the speaker is now more trustworthy than she once was, or is at least sincerely trying to become more trustworthy. A good apology gives the victim new reasons to trust the apologizer. In taking the expressive significance of apology seriously, we might even say that much of the merit of the apology stands in, as a kind of proxy, for the merit of the apologizer. Valuable apologies are trustworthy apologies, and trustworthy apologies reveal trustworthy apologizers.In the case of public apologies, the connection between expression and motive is murkier, for a host of reasons. It is harder to use an official apology as a reliable measure for the trustworthiness of the speaker or, indeed, of the institution that she rep-resents. Much of the blanket criticism aimed at public apologies emerges, I suspect,out of a sense of vulnerability and indignation — a suspicion that we are being asked and even expected to trust someone who has not yet earned it. Yet, if this is so, why does public appetite for apology remain insatiable? The answer, I believe, lies with the object of apology — the wrong which is being apologized for. Some state and institutional apologies are issued for historic wrongs: incidents and abuses in the distant (and not so distant) past for which acknowledgement have never been given and redress never made: examples range from the Irish Potato Famine (UK) to the Chinese Head Tax (Canada) and the Tuskegee syphilis experiment (US). Here, the demand for apology seems less surprising, since ongoing si-lence and lack of recognition are enduring, painful wrongs — spanning decades and even centuries. Official apologies alter distorted and oppressive histories. They “set the record straight” by correcting official accounts and acknowledging groups of citizens whose existence was denied or near-eradicated (Gibney and Roxstrom 2001;Nobles 2008; MacLachlan 2010). They represent and even enact important public moral change by asserting the wrongness of past norms and policies (for example,racist immigration practices or genocidal colonialism) that were once considered acceptable or even morally appropriate, and they announce and assert the very real harms these wrongful policies caused. Apology may not be all that victims of past wrongs and their descendants want, but it is less puzzling that apologies are often part of the reparation they demand (Torpey 2001; Walker 2013).

Instead, my interest lies with a subset of official apologies that are offered for recent wrongdoings. The paradox of public apology arises, I argue, in cases of public apology that more closely resemble personal apologies: cases where the wrong is both recent and an action already widely understood to be wrong, where the direct victim and wrongdoer are both alive — and where the trustworthiness of the wrong-doer is very much in question. We can identify these as contemporary public apologies. Contemporary public apologies concern wrongs and harms that damage broader forms of civic trust. This is true both in the case of apologies by democratic governments, and also in many instances of apologies by nongovernmental organizations. The wrongs in question damage our trust in specific institutions, and also shake our trust in government oversight and regulation of those institutions — pushed further, they undermine our trust in the authority and legitimacy of democratically determined legislation, and the civic society that it structures. What shakes our trust is not just a demonstrated lack of trustworthiness by the specific wrongdoer in question (indeed, in many cases, the official or institution in question was not trusted be-fore this particular harm) but also — more broadly and more subtly—public faith that systems of protection and regulation have been put in place by democratically determined legislation, that ruling persons and parties have the public’s interests at heart, and that we share a commitment to the norms and values that make up public culture. Apologies emerge as a performative (rather than legal or structural) model for accountability, and thus for reinspired public trust, in each of these targets.This, I argue, is where the ongoing demand for public apologies emerges. Whatever the vagaries of individual apologies, the practice of apologizing—as an official, publicly performed, speech act—reasserts norms and contributes to a culture of accountability, even when the accountability in question is imposed through public pressure or legal coercion and does not represent a spontaneous change of heart. Apologies give us reasons to trust the system, if not the speaker. The paradox dissolves when we recognize that even apologies by untrustworthy apologizers may nevertheless establish conditions for greater (though not necessarily warranted) civic trust.My argument takes the following form: first, I outline the characteristics of and success conditions for interpersonal apologies, contrasting these with public apologies in order to demonstrate the limits of the latter, when it comes to expressing and establishing trustworthiness. In the second half of the paper, I turn to the relationship between institutional wrongdoing and public trust. I discuss the significance of “default” civic trust for democracy, and propose three ways in which official apologies contribute to its renewal other than by establishing the trustworthiness of the offending institution and its representatives. I conclude by noting that this analysis reveals two significant risks associated with them: a moral risk that direct victims are over-looked in the desire to reassure the broader public, and a political risk that democratic models of accountability are being replaced by interpersonal ones, in contemporary political culture.

Lawyerbots

'Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law' by Dana Remus and Frank S. Levy states 

 We assess frequently-advanced arguments that automation will soon replace much of the work currently performed by lawyers. Our assessment addresses three core weaknesses in the existing literature: (i) a failure to engage with technical details to appreciate the capacities and limits of existing and emerging software; (ii) an absence of data on how lawyers divide their time among various tasks, only some of which can be automated; and (iii) inadequate consideration of whether algorithmic performance of a task conforms to the values, ideals and challenges of the legal profession.

Combining a detailed technical analysis with a unique data set on time allocation in large law firms, we estimate that automation has an impact on the demand for lawyers’ time that while measureable, is far less significant than popular accounts suggest. We then argue that the existing literature’s narrow focus on employment effects should be broadened to include the many ways in which computers are changing (as opposed to replacing) the work of lawyers. We show that the relevant evaluative and normative inquiries must begin with the ways in which computers perform various lawyering tasks differently than humans. These differences inform the desirability of automating various aspects of legal practice, while also shedding light on the core values of legal professionalism.

Workers

'Limitless Worker Surveillance' by Ifeoma Ajunwa, Kate Crawford and Jason Schultz in (2017) 105(3) California Law Review comments

From the Pinkerton private detectives of the 1850s, to the closed-circuit cameras and email monitoring of the 1990s, to contemporary apps that quantify the productivity of workers, American employers have increasingly sought to track the activities of their employees. Along with economic and technological limits, the law has always been presumed as a constraint on these surveillance activities. Recently, technological advancements in several fields – data analytics, communications capture, mobile device design, DNA testing, and biometrics – have dramatically expanded capacities for worker surveillance both on and off the job. At the same time, the cost of many forms of surveillance has dropped significantly, while new technologies make the surveillance of workers even more convenient and accessible. This leaves the law as the last meaningful avenue to delineate boundaries for worker surveillance. 

In this Article, we examine the effectiveness of the law as a check on worker surveillance, given recent technological innovations. In particular, we focus on two popular trends in worker tracking – productivity apps and worker wellness programs – to argue that current legal constraints are insufficient and may leave American workers at the mercy of 24/7 employer monitoring. We then propose a new comprehensive framework for worker privacy protections that should withstand current and future trends.

'The Flexible Cyborg: Work-Life Balance in Legal Practice' by Margaret Thornton in (2016) 38(1) Sydney Law Review 1-21 comments

 ‘Work/life balance’ (WLB) emerged as the catchcry of workers everywhere in the late 20th century. It was particularly appealing to women lawyers as it was thought that if a balance could be effected between work and life, satisfying careers and the raising of children could be combined. The key to effecting this balance, it was believed, was flexible work. Technology has facilitated this flexibility as all that is required is a computer, or other device with internet connection, and a mobile phone. Provided that the firm is agreeable, the lawyer would have a degree of autonomy in determining when and where the work is carried out. However, flexible work has not always proved to be the boon that was hoped, for the shift from face-time to virtual time has blurred the boundary between work and life, insidiously extending the hours of work and impinging on the realm of intimacy. Drawing on a web-based survey and interviews with lawyers Australia-wide, this article considers the ramifications of perpetual connectivity for lawyers in private practice, with particular regard to its gender significance.

The ABC reports that  Jennifer Anne Reed faces a maximum penalty of 10 years' jail after passing herself off as a registered nurse for five years. Prosecutors said Reed's deception involved producing fake documents to secure work, including a false CV and references.

Reed  was reportedly exposed as an imposter after she poorly handled a patient who had suffered a fall. She has pleaded guilty to seven counts of deception by using the identity of a registered nurse to work at several aged care homes in South Australia between 2009 and 2014.

After the incident  at the aged care facility Trevu House at Willaston, near Gawler (SA) the facility's acting manager notified the Australian Health Practitioner Regulation Agency (AHPRA) which later uncovered Reed's "elaborate and persistent charade". Documents reportedly demonstrated a "lengthy history of remarkably similar behaviour".

Reed was the director of nursing for Moonta Health and Aged Care in 2014 and was responsible for administering "drugs of dependence" at Trevu House that year . She received wages of almost $350,000 over the five years.

South Australian Privacy Tort report

The South Australian Law Reform Institute has released its 193 page report on the statutory cause of action regarding privacy invasions.

The report features the following recommendations

R 1: The South Australian Parliament should enact a limited cause of action for serious invasion s of personal privacy.

R 2 : The statute should refer to the cause of action as a ‘tort’.

R 3: The cause of action should extend to the pro tection of bodily privacy, territorial privacy, information privacy and communications privacy.

R 4: The cause of action should require that a plaintiff have a reasonable expectation of privacy in the circumstances. The statute should provide a non-exhaustive list of factors that a court may take into account in making that assessment. In developing this list, guidance should be taken from the list of factors recommended in the ALRC 2014 Report.

R 5: The statute should provide th at the cause of action extend to intrusions upon a person’s seclusion and misuse of a person’s private information.

R 6: The statute should include the following non-exhaustive guiding examples:

• For intrusion upon seclusion : by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs . 

• For misuse of private information : by collecting or disclosing private information about the plaintiff .

R 7 : The statutory cause of action should provide that ‘private information’ includes untrue information, but only if the information would be private if it were true .

R 8 : The fact of invasion is sufficient; that is, a plaintiff would have a cause of action if their privacy was invaded, even if the defendant did not further disclose or disseminate information or material obtained in the course of the invading act.

R 9 : The cause of action should provide that the invasion be serious. Whether the invasion is sufficiently serious to give rise to an action will be left for the court to decide, having regard to:

• (an objective test) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; 

• (a subjective test) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff; and 

• any other factors the court considers relevant.

R 10 : The Institute considers that a public interest test should be an element of the proposed cause of action. In determining whether a cause of action has been established, a court should be required to take into account whether the public interest in maintaining a plaintiff’s privacy outweighs other issues of public interest .

The statute should set out a non-exhaustive list of examples that a court may consider, along with any other relevant public interest matter. The list should be made having regard to the ALRC 2014 Report and the specific activities deemed to be of ‘legitimate public purpose’ in the 2012 amendments introducing the humiliating and degrading filming offences to the Summary Offences Act 1953 (SA), taking into account any overlap and interplay with the other elements and defences listed in this Report .

R 11 : The statute should expressly provide that t he cause of action is actionable without proof of damage.

R 12 : The kinds of harm or loss which are compensable should be cast as broadly as possible and should at least include emotional distress.

R 13 : The cause of action for invasion of privacy should apply to conduct that is either intentional or reckless but not accidental or negligent . There must exist either an intention to invade someone’s privacy or recklessness as to that fact. Recklessness in this context means where the defendant is aware of the risk of an invasion of privacy and is indifferent to whether or not an invasion of the plaintiff’s privacy would occur as a result of the conduct .

R 14 : The statute should provide that the cause of action only be available to natural persons.

R 15 : The statute should provide that the cause of action be confined to living persons.

R 16 : The consent (implied or inferred and freely given) of the plaintiff (or by an individual who has legal capacity to consent on their behalf) should be a complete defence to the action. The statute should make it clear that for the purposes of the defence, the consent must be to the particular disclosure or conduct constituting the invasion, including in the case of publication or dissemination, the extent of that publication or dissemination.

R 17 : There should be a defence for conduct incidental to the exercise of a lawful right of defence of person or property, where:

• the defendant believes, on reasonable grounds, that the conduct was necessary; and

• the defendant’s conduct is proportionate to the perceived threat.

R 18 : There should be a defence of necessity.

R 19 : There should be a defence for conduct which was required or authorised by law. For the purposes of this defence ‘law’ should be defined broadly and should mean the law as applicable in South Australia. The definition should include:

• the general law; 

• Commonwealth Acts, regulations, legislative instruments and other instruments made under a Commonwealth Act; 

• South Australian ‘Acts’ and ‘statutory instruments’ (as defined in the Acts Interpretation Act 1915 (SA));  

• orders made by courts and tribunals; 

• prerogative powers; and 

• documents that have the force of law pursuant to an Act.

The statute should make it clear that the absence of a law prohibiting particular conduct should not, of itself, mean that that conduct is authorised by law.

20 : There should be defences which are in similar terms to , and co-extensive with, the following defences to an action in defamation under the Defamation Act 2005 (SA):

• the defence of fair report of proceedings of public concern; 

• the defence of innocent dissemination;  

• the defence for publication of public documents;  and

• the defence of absolute privilege

R 21 : It should not be a defence to the cause of action to prove that the information was in the public domain prior to the invasion.

R 22 : The cause of action should not include any complete exemptions. However, consideration should be given to exempting (or in some other way excusing) young persons from liability.

R 23 : The remedies available for an invasion of privacy should include:

•  account of profits; 

• injunctions; 

• orders of correction or apology; 

• delivery up (including orders to take down)

• declarations; 

• damages; and 

• any other relief that the court considers appropriate in the circumstances.

R 24 : The statute should provide that a court may award as many different remedies for an invasion of privacy as it sees fit.

R 25 : The statute should expressly require courts to consider all relevant competing public interests (including, but not limited to, freedom of expression) prior to granting an injunction as a remedy for an invasion of privacy.

R 26 : The statute should require courts to draw on established principles of tort law when determining the appropriate award of damages (and should consider awards in analogous cases for other torts).

R 27 : The statute should contain the following non - exhaustive list of considerations relevant to the determination of the award of compensatory damages:

(a) whether the defendant has made an appropriate apology to the plaintiff;

(b) whether the defendant has published a correction;

(c) whether the plaintiff has already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;

(d) whether either party has taken reasonable steps to settle the dispute without litigation; and

(e) whether the defendant’s unreasonable conduct following the invasion of privacy, including during the proceedings, has subjected the plaintiff to particular additional embarrassment, harm, distress or humiliation.

R 28 : The statute should prevent courts from awarding aggravated damages as a separate head of damage.

R 29 : The statute should expressly allow courts to award exemplary damages in exceptional cases.

R 30 : The statute should expressly allow courts to award nominal damages.

R 31 : The statute should impose a maximum amount of damages that may be awarded for the combined sum of the award for non - economic loss and the award for exemplary damages (if any). The maximum amount should be consistent with the maximum imposed by s 33(1) of the Defamation Act 2005 (SA), which is currently $250,000.

R 32 : The statute should allow a plaintiff to bring a claim within the earlier of one year from the date the plaintiff became aware of the invasion of privacy or six years from the date of the invasion of privacy. The one year limitation should be open, in exceptional circumstances, to extension by the  court, but not beyond six years from the date the invasion occurred.

R 33 : A plaintiff should be able to bring an action for invasion of privacy in the Supreme Court of South Australia, the District Court of South Australia or the Magistrates Court of South Australia.

R 34 : The costs should be determined in accordance with the relevant rules of the court in which the matter is heard

NSW Privacy Tort Report

The NSW Legislative Council Standing Committee on Law and Justice has released its report on Remedies for the serious invasion of privacy in New South Wales.

The Committee's terms of reference were

to inquire into and report on remedies for the serious invasion of privacy in New South Wales, and in particular: (a) the adequacy of existing remedies for serious invasions of privacy, including the equitable action of breach of confidence (b) whether a statutory cause of action for serious invasions of privacy should be introduced, and (c) any other related matter. 

Its recommendations are

R 1 That the NSW Police Force:

a) ensure that its officers receive training in the harms associated with technology-facilitated stalking, abuse and harassment; and 

b) that the training incorporate education about how existing offences and other orders, such as apprehended violence orders, could be used in respect of allegations of that nature. 

R 2 That the NSW Government undertake a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 to consider additional potential remedies available to the Local Court to protect the privacy of individuals who have been or are seeking to be safeguarded by apprehended domestic violence orders. 

R 3 That the NSW Government introduce a statutory cause of action for serious invasions of privacy. 

R 4 That in establishing the statutory cause of action at recommendation 3, the NSW Government base the action on the Australian Law Reform Commission model, detailed in its 2014 report, Serious Invasions of Privacy in the Digital Era. 

R 5 That in establishing the statutory cause of action at recommendation 3, the NSW Government should consider incorporating a fault element of intent, recklessness and negligence for governments and corporations, and a fault element of intent and recklessness for natural persons. 

R 6 That the NSW Government:

a) broaden the scope of the NSW Privacy Commissioner’s jurisdiction to enable the Commissioner to hear complaints between individuals relating to alleged serious invasions of privacy; 

b) empower the NSW Privacy Commissioner to make determinations that involve non-financial forms of redress, including apologies, take down orders and cease and desist orders 

c) ensure that the NSW Privacy Commissioner is empowered to refer a complaint on behalf of a complainant to the NSW Civil and Administrative Tribunal for hearing for a statutory cause of action where there is a failure to act on a non-financial form of redress, including apologies, take down orders and cease and desist orders, and 

d) ensure that the Office of the NSW Privacy Commissioner is adequately resourced to enable it to fulfil its functions arising from the expanded scope to deal with complaints arising from alleged serious invasions of privacy.  

R 7 That the NSW Government confer jurisdiction on the NSW Civil and Administrative Tribunal to enable it to hear claims (in addition to ordinary civil courts) arising out of the statutory cause of action for serious invasions of privacy at recommendation 3.

SNS

'Destined to Collide? Social Media Contracts in the U.S. and China' by Michael L. Rusted, Thomas H. Koenig and Wenzhuo Liu in (2016) 37 University of Pennsylvania Journal of International Law considers SNS terms and conditions.

The authors state

Part I of this article is the first empirical examination of the Chinese social media universe. We develop a typology of twenty-five of China’s most popular social media sites and compare terms of use from these social media with their U.S. counterparts. 

Part II compares the contracting practices of Facebook, Twitter, and Match.com to their Chinese equivalents. The core finding is that U.S. social media providers use terms of use to reduce their liability and protect their rights to the maximum. China social media providers rarely foreclose consumer rights and remedies in their terms of use but do include clauses that forbid user conduct that incites racial, ethnic, or religious disharmony or otherwise harms national stability.

Part III contrasts the terms of use of twenty-five of America’s largest and most popular social media sites’ terms of use with terms devised by the twenty-five largest Chinese social media providers. U.S. social media sites construct fine print boilerplate that include one-sided warranty disclaimers, caps on damages, mandatory arbitration and anti-class action waivers – provisions that are rarely found in the Chinese sites. Chinese social media terms of use frequently violate Western rights to free expression. We explore the doctrinal basis underlying these diametrically opposed mass-market agreements by comparing U.S. to Chinese law. The largest social media providers in both the United States and China have global ambitions and thus must devise user agreements that harmonize with the laws and policies of other nations if they are to avoid serious legal and cultural clashes.