an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My previous posts have looked at newspapers’ decline in the face of Internet competition and have bemoaned the consequent impairment of the press’s ability to serve as a vibrant fourth estate. Here I present the other side of the coin. I argue that new media, including search engine aggregators like Google News and, indeed, peer-to-peer file swapping networks, perform a valuable First Amendment function of loosening media conglomerates’ hold and providing opportunities for a more diverse range of speakers to reach an audience. I point not just to the institutional press, but the news and entertainment media as a whole.
Many have lamented media consolidation, and it does certainly appear that the media industries that dominate public discourse have reached levels of concentration that are deleterious to both competition and expressive diversity. As I report in Copyright’s Paradox (but have not checked to see if I need to update for this post), four major record labels control some 85 percent of the U.S. record industry market (held at four rather than three only because regulators refused to approve the merger of EMI with Time Warner), six major studios consistently garner well over 80 percent of domestic box office market share, and ten publishing houses enjoy oligopoly domination of the trade and paperback book markets. Further, almost all the dominant firms in each area are part of a media conglomerate with affiliates in the other areas. These affiliates, which include content producers, aggregators, and distributors, extend and solidify the dominant firms’ control of the market. To complete that picture, ‘‘Big Six’’ media giants—CBS Viacom, Time Warner, NBC Universal (a unit of General Electric), Sony, News Corporation, and Disney—own all the major movie studios, the two largest record labels, and three of the top ten trade book publishing houses. A seventh global media conglomerate, Bertelsmann, is the largest trade book publisher, the largest record label (as part of its joint venture with Sony), and 50 percent owner of Europe’s largest operator of independent television stations. The Big Six conglomerates also own all five U.S. television networks and sixty-four cable television networks, which together account for 98 percent of U.S. primetime television advertising revenues. Not surprisingly, that oligopoly extends to television programming as well as distribution. Together with Liberty Media, which owns approximately 18 percent of News Corporation and 4 percent of Time Warner, the Big Six own more than four-fifths of prime-time programming. Likewise with motion pictures. Together with their dominance in film production, the Big Six own motion picture distribution arms that earn some 96 percent of U.S. movie theater rentals, reflecting the fact that independent studios must rely on the majors to get their films to theaters. Finally, the Big Six’s radio station holdings garner 65 percent of all U.S. radio advertising revenues.
Newspapers are even more highly concentrated on a local level, but less on a national level. Fewer than 1 percent of U.S. daily newspapers have a direct competitor in the same city. Nationwide, the top 10 newspapers garner 19 percent of circulation and the top 10 magazines receive 27 percent of magazine circulation.
Interestingly, as Matthew Hindman’s recent study shows, the Internet does NOT upend the concentration of newspaper readership. Twenty-nine percent of web traffic for news and media sites goes to the top 10 web sites, and for news web site traffic no less than print circulation, the top 50 outlets make up just less than 50 percent of the total market. Likewise, the Nielsen/Netratings listing of the top twenty most visited news Web sites for January 2008 indicates that, except for Yahoo News and Google News, all of the sites are individual sites of major American newspapers and broadcasters or news aggregation sites controlled by major American media. The Web does produce a long tail of many niche sites, but, if anything, it seems to amplify the power law concentration of consumer demand for the most popular sites.
Importantly, I think, the Google News news aggregation algorithm counters that demand side concentration somewhat. As reported by Newsknife, the top twenty sources appearing in Google News are also dominated by mainstream U.S. news media. However, they also include Reuters, Al-Jazeera, BBC News, and Guardian Unlimited, all based outside the United States and all presenting perspectives that are often quite different than those of U.S. news media. Those who search for news at Google News are thus potentially exposed to a greater diversity of opinion than online news site readers otherwise partake.
In making it possible for users to search for and to gain access to hundreds of thousands of sound recordings and videos, file trading networks have much in common with search engine aggregators like Google News and, indeed, Google. BigChampagne file trading measurement shows that, as with Google News search results, file trading network downloads are dominated by popular commercial media hits. But peer-to-peer file trading networks also create openings for authors and artists who are not affiliated with major labels, publishers, and studios to reach a sizeable audience. They likewise afford an outlet for the creative appropriations, remixes, and mashups that, through digitally intertwining elements of disparate well-known works, have emerged as a potent art form and occasional vehicle for social critique and political commentary. So alongside their highly controversial facilitation of massive unauthorized copying of copyrighted expression, peer-to-peer file trading networks, like social networking, user-generated content, search engine, and content aggregation sites, may well serve the salutary function of enhancing expressive diversity.
We all have the same 24/7 time limitations on reading, listening, watching, writing, and otherwise communicating, by the various media, subject to variations of health, age, sleep, eating, bathing, interests, etc. So how does one sift through the available and ever growing information flow from newspapers, other print media, TV, cable, Internet, etc, to obtain meaningful information? We may rely upon certain newspapers, magazines, Internet sources, but these may reflect our biases. So perhaps it is like watching a ping-pong match, going back and forth between the old media and the new media. Information overload means a lot of balls in the air, like when lottery numbers are drawn - the luck of the draw.
The post provides an excellent view of the abstract dynamic of capital in media. One of the changes I am waiting to observe in internet search algorithms would be a way to delinearize our options to scan found document summaries. So, when a Google search finds 5,000 articles responsive to our search string, we would have more options than clicking through 500 screens of summaries for relevant articles, say, by letting us jump instantly to the page summarizing documents 4500-4550. There is some excellent legal and historical research online now, but the searchengines have yet to devise creative new ways to texturize our browsing. My preferences as a visitor rather than employee of such companies is to let them develop their own corporate character without input, yet, reinventing companies is fun work sometimes. I was surprised to see Microsoft relax its interest in Yahoo recently; perhaps MS has its own fallback plans for other ways to invest.