Barron tribute, panel 3: Neil Netanel

Panel III: Intellectual Property and Access for Ideas

Neil W. Netanel, UCLA School of Law

Barron’s contextual approach asks us to assess First Amendment doctrine in light of actual conditions of free expression. Today is the era of cheap digital speech, for those on the north side of the digital divide. What is copyright’s role in shaping public discourse – does cheap speech obviate the need for ownership restrictions/access obligations?

Opponents of regulation say yes: all you need is the free market to take advantage of limitless opportunities to speak. But for effectiveness, information must be salient; relevant questions include whether you need to reach a mass audience, or those who disagree. Netanel is skeptical that the internet will destroy the dominance of traditional mass media. You still need to get attention, which is increasingly scarce. Established media are more adept at capturing individual attention. The internet audience is concentrated and largely colonized by corporate interests.

We should not aspire to a universe of yeoman speakers. Mass media/institutional press have a vital First Amendment function that can’t be replicated by bloggers: sustained investigation, fact-finding, checking, editing. Bloggers depend almost entirely on the mainstream media for fodder. Plus there’s a professional commitment to the ethics of journalism; journalistic careers can be ruined by gross inaccuracy, but not so peer reporters, who can even be on the payroll of corporations and politicians. A liberal democracy requires robust debate and encounters with competing views. The insitutional press generally does this better than blogs. Only the institutional press can represent public opinion before policymakers. It matters to policymakers what the NYT says. Stories percolate through the internet, but only have effect once the mass media steps in.

Copyright shapes public discourse in a variety of ways. It is an economic incentive to create and disseminate expression. It tends to favor those who already have vast copyright inventories – the mass media. It tends to burden those who want to borrow and build on copyrighted works. Because the mass media provide reference points, language that resonates with others often includes mass media text/images/sounds. Digital tech makes appropriating easier; peer speech is a remix culture. Broad, lengthy copyrights are an obstacle to this component of our system of free epxression.

Copyrights are used as vertical restraints to foreclose media entrants. New media like fanfiction.net, machinima, Google News, Google Book Search, etc. face copyright constraints. They are good because they loosen conglomerates’ hold over content distribution. The mainstream US news organizations dominate internet news use – only the BBC is in the top 20 news sites and not a mainstream US source. Google News is also dominated by mainstream US commercial media, but less so, including 2 British, 1 Chinese, and 1 European news blog. It’s the same with P2P file trading networks, which are dominated by commercial hits, but offer a chance for others to reach audiences.

But these all depend in one degree or another on copying, and the response has been a barrage of litigation against Google News, Free Republic, YouTube, ReplayTV, XM Radio, mp3.com, Cablevision, etc. Lost revenue is a legitimate fear, but these suits also represent efforts to stifle new media competition, as copyright has traditionally been used as a vertical restraint to control distribution. In the past, Congress/regulators have sometimes stepped in to impose compulsory licenses. Now, a number of new media – mp3.com, P2P, user-generated video sites – have been enjoined or driven out of business. It remains to be seen how the Google suits will play out, or whether Congress will step in to prevent copyright from being used as a veto.

Copyright is also a great way of underwriting a financially robust, commercial, independent media sector. Cheap speech threatens to erode financial support for relatively expensive good journalism, by siphoning ad revenue which goes to aggregators instead of journalists. This brings us back to Google News v. AFP, where AFP sued over Google’s copying of its headlines, story leads and thumbnails. Google settled with AFP and the British and Canadian news agencies. Netanel argues that the display of headlines etc. is not really the issue, but the ad revenue from homepage views. Google harms papers by appropriating reader loyalty to itself. 60% of US high school students get news from Google or Yahoo!, while much smaller percentages use local or national news sites.

What should we do? Diversity versus quality seems to be the conflict.

Some suggest content aggregators should have to pay for leads and headlines. A statutory license might work, though Netanel thinks this minimal content should be fair use. Certainly there should be no copyright veto over aggregators.

According search engines a limited privilege to copy and display deprives copyright holders of a veto, and helps preserve competition by barring Google from making exclusive deals with content providers. Many new media sites exhibit the same tendencies towards concentration as traditional media. This is more benign than traditional concentration, because it’s built on a different model than hub-and-spoke communication and provides platforms for user-generated speech. Nevertheless, every filtering mechanism/platform has biases (and must have them by definition). Media giants regularly impose constraints; YouTube bans war footage that’s intended to shock and disgust, along with porn. There are First Amendment interests in retaining multiple sources.