Toward a Better Google Shakedown

Newspaper CEO efforts to shake down Google seemed doomed to continue, it seems, with Rupert Murdoch making the latest round of fruitless criticism of Google’s ‘theft’ of copyright through the simple act of indexing stories.    This seems misguided for both narrow technical reasons and broader business model ones: on the one hand, it is easy to opt out of Google if newspapers chose to do so; more generally, the newspaper’s primacy in bundling different kinds of reporting and advertising is, for the most part, finished.  That the linking controversy appears to be an unsettled area in copyright jurisprudence is mostly testament to the  maladaptation of copyright law to the Internet.

But I am intrigued by the implicit question of Google’s—and other dominant Internet intermediaries’—public-interest responsibilities.   It seems clear, at this point, that there are at least a few important ‘complex’ public goods that the Internet will not provide on its own, and indeed may make it harder to provide.  There seems to be a pretty strong consensus, for example, that the Internet-driven decline of newspapers is diminishing capacities for state and local journalism, with a variety of adverse effects.  To suggest a few more candidates for important underprovisioned public goods…

Audiovisual archiving: the rapidly-expanding audiovisual record of American life has long since outstripped any organized archival practices, and risks disappearing as quickly as it is created.  The lack of  archival strategies for even basic public interest programming like news is just the tip of this iceberg. Existing approaches, from the  TV Archive to the Local TV News Media Project to the Vanderbilt TV News Archive, offer only fragments of this record.

Public-interest experimentation at the margins of the media ecosystem with new forms of participation, accountability, community, reporting.   Such efforts are commonly held up as expressions of the democratic and creative potential of the Internet, but are also incredibly fragile and disproportionately reliant on a handful of foundations for funding.

Major service providers–here, not just ISPs but also companies like Google or Yahoo or Microsoft that provide services–benefit from the content creation, social activity, and network effects of all three categories of activity.  Why shouldn’t they have a substantive public-interest responsibility to help preserve these fragile, underprovisioned parts of the online ecosystem?

Such responsibilities have a clear precedent in the obligations placed on broadcast stations, when they were the dominant intermediaries of American public life.  Broadcasters had to comply with all sorts of normative regulations governing children’s programming, localism, violence and profanity, editorial ‘fairness’ for a time, as well as structural issues such as ownership caps.  They had to report their activities to the FCC to create a record that could be used to evaluate how well the media met these public-interest goals.  Cable companies had there own set of responsibilities to subsidize community access.  This isnt’ to say that the same solutions would apply.  The context is clearly different.

But today, the idea of substantive public-interest responsibilities for the major internet companies (beyond minimal architectural freedoms like net neutrality or open access) is never raised.   Why?  I don’t have a good answer, but successful Internet libertarianism seems to me to be a part of it: people have treated the end of normative regulation as part of an inevitable Internet paradigm shift—even if they still have moments of buyer’s remorse when beloved institutions like newspapers go under.   To reintroduce the clunky machinery of broadcast regulation, in this context, is in bad taste.  But the death of newspapers has shaken people and clearly opened the door to lots of new and old heresies.  Why shouldn’t we think about what we want, substantively, out of the digital public sphere, and revisit the issue of regulatory approaches to encourage it?