Sunday, October 14, 2007

Barron tribute, panel 3: comments and questions

Comments: David Nimmer, UCLA School of Law

Barron wrote about how the Watts riots were the result of pent-up frustration not expressed in the media because the pressure to make profits led to bland reporting/lack of coverage of issues; protest built up because it had nowhere else to go. Today, instead of blandness, the sensational reigns. It’s still in the service of profit. Protest is not the result of exclusion, but of the desire to be covered – people fire guns for the sake of the cameras.

Spin is generated by the powerful and powerless alike. A right of reply might not have done anything to counter Reagan’s carefully scripted ability to make it seem like his administration cared about the poor/minorities.

Fox News & CNN are owned by 20th Century and Time Warner; CBS/Viacom, NBC/Universal: the institutional press is also the recipient of entertainment dollars.

He wants to talk about press responsibility; no one has yet said “Valerie Plame.” What does it mean for the press to circle the wagons and deny responsibility for the crime? He mentioned an ongoing French scandal, in which France 2 showed footage said to be a Palestinian boy killed by Israeli bullets. A skeptic alleged otherwise; F2 sued him for defamation, and initially prevailed; the court of appeal ordered the outtakes (27 minutes) to be aired in open court; independent experts concluded that the one minute that aired was deceptive. How do we encourage this kind of fact-checking outside a lawsuit?

The economics of attention: AFP v. Google. If the goal is to have a marketplace of ideas, Google did a good thing. Netanel posits a detriment in that consumers don’t come in on the ground floor, as it were, but go straight to the department of interest. But if you put searchable pages up, you can’t complain if someone searches them. The press has to decide whether users have free access. (Nimmer mentioned the recent demise of TimesSelect.)

YouTube: to the extent that users desire to proclaim their identity by copying 4 minutes of the Daily Show, there is a First Amendment interest, but we’re more concerned with the marketplace of ideas; there is no further need to have the individual user make it available in competition with the Daily Show. Copyright owners aren’t filing takedowns with respect to new Batman stories, but for wholesale copying. (I said in response that this is factually untrue; though it may well be the case that user-generated videos are being caught up in automated takedown procedures, Fox is having fan videos removed, and those are far more than wholesale copying.)

Section 512 seemed like a sensible resolution at the time. It was painfully inadequate, as became evident a few months later with Napster, which fell within 512’s literal language. On YouTube, 150,000 out of millions of files may infringe; we could make copyright owners file 150,000 new notices each month, but if Google filters out porn and war footage, it would seem only rational to take out all Madonna videos.

Finally, Google Books: this calls out for congressional blessing. It is taking the power of the printing press and offering something the Library of Congress and the Library of Alexandria would have done if they could have. As long as it’s snippets only, copyright and First Amendment law should support it.

Netanel on YouTube: It was also true of cable: for the industry to get off the ground, it needed to distribute copyright-protected works. The Supreme Court protected cable. YouTube is in the same situation. The primary speech interest is in user generated content, not simply replicating existing content, but YouTube would not be available if Google had to root out all possible copyright infringement, which is a First Amendment reason to avoid that burden. Even 512 is insufficient and imposes an undue burden; we need a compulsory license.

Nimmer: LonelyGirl15 means there’s no need to piggyback on copyrighted content. (I don’t think this is responsive to Netanel’s “costs of rooting out” point, nor does it necessarily address the problem that the long tail only works for institutions that do not decapitate the content-animal.)

My comment on Netanel: There are new ways of increasing the relative positions of big copyright owners – what I’ve called informal formalities in the screening mechanisms adopted by YouTube and the like; the resources big companies can devote to customizing their noindex/nocache etc. settings versus what individuals are likely to do; the lower marginal costs for big publishers who opt out of Google Book Search versus individual authors who own one copyright. (Google informs me that I reinvented the term “informal formalities”; it was also used to make the same point by Zohar Efroni half a year before I did.) In the deal between UK’s PRO and YouTube, royalties are only counted on the top 5-10% of videos; the PRO’s spokesperson said explicitly that “the long tail is not worth measuring.” Small speakers will get audiences in this new regime, but they will find it very difficult to make those audiences pay.

Bob Brauneis: Netanel says new media are more benign. What about the bleed between sponsored and editorial content; product placement too (though that’s in old media)?

Netanel: It’s a serious problem, and should be regulated to require disclosure.

David Barron: Netanel’s presentation suggests that concentration of media is a problem again. That hasn’t been as big a theme in the other panels. Implication: access rights still matter?

Netanel: We don’t need a constitutional access right, but access remains a First Amendment value.

Barron, for me: Both the 1967 article and your presentation link libel law and access rights, suggesting that defamation actions might be a good thing, which is rare in First Amendment law.

Answer: I am concerned with nondiscrimination, and the gap between ISPs’ responsibility for defamatory harm (none) and their ability to shut down users who say things they don’t like (total). I have no inherent problem with tough standards for proving defamation.

Question: Is there a benchmark? A time when more people did have access? Or is this an ideal?

Jerome Barron: He did research the Founding. Printers put out weeklies, and were pretty vicious. There were lots of them, saying different things – a small circulation, but copies were passed around to many people. There were multiple independent voices; not exactly a golden age, but it had advantages, as if we had no other media but the unregulated internet.

Q: Why do we need the institutional press if the golden age is bloggers?

Netanel: Back then, all other industry was cottage industry too! You need an industry to check an industry – it’s back to the need for investigative reporting.

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