Are bad reviews necessary?

The NYT just ran a story on the decline in film screenings for movie critics. In fact, the story is really about the decline in studios' reliance on print advertising, with the suggestion being that traditional gatekeeper critics are no longer invited because their publications' ad rates aren't worth paying. But, whatever the reasons, people increasingly see movies on the strength of advertising and "buzz" alone, without reviewers' perspectives.

This challenges one of the economists' standard arguments about why fair use allows summarization and quotation in reviews, both positive and negative. If reviews were licensed and required to be positive, the argument goes, people wouldn't trust them, and overall social welfare would decrease; thus, a rational publisher would license all reviews, and transactions costs mean we should imply consent. But if movie studios can make lots of money -- more money, even -- by avoiding reviews, it seems that people are willing to watch even with only the obviously biased advertising as a guide. Because people don't discount information based on source bias as much as they should, licensed positive reviews would be trusted, and the publisher should want to decide who gets to review a work.

Implied consent isn't the right answer in fair use; it's not even the right question.