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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Microsoft's hastily renewed courtship with Yahoo --this time centered on a merger of the companies' search advertising businesses -- in order to compete more effectively with search engine leader Google raises issues not just of market competitiveness but of the shape of the new media landscape. In particular, might new media become as concentrated as the conglomerates and oligopolies that characterize much of traditional media? And if so, would new media concentration poses similar concerns about media concentration's deleterious impact on public discourse and expressive diversity?
We already see considerable concentration in some leading new media platforms. Google dominates the search engine market. Google’s YouTube dominates the market for user-generated videos. Facebook and MySpace dominate the social network market. Apple’s iTunes dominates the market for digital music downloads.
That's not surprising. Media, information, and telecommunications markets typically have built-in tendencies towards high levels of concentration and oligopoly, and new media are probably no exception. Such markets are characterized by declining average cost per unit of production, substantial economies of scale, and high barriers to entry. And demand-side network effects can exacerbate these tendencies in both new media and old. Amateur video creators want to post their work on the site with most viewers and viewers want to view the videos that everyone else is discussing. A search engine produces more useful results the more it is used—since frequent use enables the search engine provider to refine its search algorithm in response—and the more useful the results, the more people want to use the search engine. Similarly, social networking sites and peer-to-peer file-trading systems are also generally more valuable to any given user the more other users are on the network. Such network benefits can quickly tip the scales in favor of a single new media network as users stampede to the network that gives them the ability to communicate with the greatest number of other users.
Should we care if only one or two new media giants in a given area are left standing? After all, these new media are built on a model that is very different than traditional mass media’s hub and spokes. They are fundamentally platforms for user-generated speech and, in the case of search engines and content aggregators, user access to as broad a swath of expression as possible.
But every filtering mechanism and usable platform comes with biases, and new media giants regularly institute constraints that narrow the range of expression. For example, YouTube limits the length of user-generated videos to ten minutes. It also prohibits sexually explicit content, graphic violence, “gross-out videos of accidents,” and, until recently, “war footage if it’s intended to shock or disgust.” Following its war footage guideline, YouTube has removed dozens of videos depicting combat in Iraq, including those protesting U.S. military action. Finally, in defense against Viacom’s billion dollar lawsuit claiming that YouTube facilitates massive copyright infringement, Google recently deployed digital filters that preemptively block many creative mashups, as well as users’ exact copies of television show segments, from appearing on the site. Google News also has certain biases. First, since it only aggregates “news,” it must determine what constitutes a “news” site as opposed to opinion or fiction. Second, although Google News covers 4,500 news sites, it does not encompass the entire universe of possible sites even in that category. In that vein, some right-wing sites have accused Google of terminating its listing of right-wing blogs and e-zines on the grounds (which the critics argue are specious) that Google received complaints of hate speech at those sites. Third, an academic study, completed in 2005, found that of the articles that Google News featured, 40% were from nontraditional news sources and that this led Google News to be more biased towards one extreme or another on particular issues than was Yahoo News, of which only 24% of the results came from nontraditional news sources. Perhaps that study led Google to cut back somewhat on its prominent display of nonmedia blogs and e-zines, which seems since to be the case.
Biases and filters are not inherently untoward; indeed, some biases and filters are unavoidable if an information platform is to be usable. But they do suggest the desirability of a competitive new media market, offering alternative sources of information (and aggregation), much like in traditional media markets. If YouTube removes antiwar videos, our First Amendment interest in robust debate and expressive diversity is best served by the availability of such videos on other readily accessible, easily locatable, and commercially viable Web sites. If Google’s search engine most prominently features search results that tend to reflect mainstream interests, we will have a richer, broader public discourse if there are also commercially mainstream competitors and viable niche search engines, like http://www.rushmoredrive.com/, touted as the “starting point and the destination for its users to find what is most relevant to the Black community.” Much like old media, new information gatekeepers impact what speech is most salient and what voices heard more loudly. How do we promote those First Amendment values in the face of market forces leading to oligopoly and monopoly in new media, like the old? I can only point to some suggestions worthy of further thought. Frank Pasquale and Oren Bracha call for a Federal Search Commission to regulate against hidden search engine bias. Frank Pasquale has also argued for a right of reply to search engine results. Commentators have argued that antitrust law should account for expressive diversity as well as market competition in addressing media consolidation. Although antitrust law has not gone that way, perhaps it should, and perhaps equally to new media as old. Ellen Goodman has called for renewed government subsidy of public service media like the Public Broadcasting Service and its adaptation to the digital arena. To the extent that copyright law makes displaying, aggregating, and distributing copyrighted works fair use or subject to a statutory license, it denies new media firms like Google the possibility of acquiring exclusive rights to display, aggregate, and distribute entire swaths of copyrighted content and thus enhances competition in new media markets. Finally, for much insight on these issues, see Siva Vaidhyanathan's blog/book-in-progress, The Googlization of Everything.